M v DPP
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LEVESON,MR JUSTICE SWEENEY |
| Judgment Date | 26 February 2009 |
| Neutral Citation | [2009] EWHC 752 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 26 February 2009 |
| Docket Number | CO/10349/2008 |
[2009] EWHC 752 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Lord Justice Leveson
Mr Justice Sweeney
CO/10349/2008
Mr Patrick Fields (instructed by Crown Prosecution Service) appeared on behalf of the Claimant
Mr Phillip Rule (instructed by Blaser Mills) appeared on behalf of the Defendant
: On 8 April 2008, following a trial conducted in the High Wycombe Youth Court, this appellant was convicted of causing criminal damage to a motor vehicle contrary to Sections 1 (1) and (4) of the Criminal Damage Act 1971. He now appeals against this conviction by way of case stated.
Before embarking upon an analysis of the facts, it is worth saying something of the procedure which has been adopted. Appeal by way of case stated is a request to the court to determine issues of law raised in a case stated by the magistrates after both sides have had an opportunity to comment upon it. Such an appeal is freestanding and depends only upon the facts found by the court.
In this case, on 14 October 2008, the magistrates signed a stated case. As part of the appeal, the appellant has sought to rely upon three further statements of evidence consisting of statements from the appellant's mother, solicitor and a trainee solicitor of the appellant's solicitors' firm.
The respondent, in its skeleton argument, expressed concern about the fact that the appellant had had the opportunity to comment upon any perceived inadequacy in the draft prepared by the justices and was troubled lest the statements revealed differences. In our judgment the approach of the appellant represents a misunderstanding of the process. In Skipaway Ltd v Environment Agency [2006] EWHC 983 (Admin), the Divisional Court, per Stanley Burnton J (as he then was), stated:
“14 There is a surprisingly common misconception that once an appeal by way of case stated is before the court, the parties may refer to evidence, or at least undisputed evidence, that was before the lower court in addition to that set out in the case.
15 On appeal by way of case stated, the court is confined to the facts of the actual case. It is therefore important that the parties ensure that the case includes all those matters that should be before the court when deciding the issues raised on the appeal. If a party to an appeal considers that the case produced by the lower court omits relevant matters, he should seek to have the case supplemented either by agreement with the other party at the lower court or by application to this court under Section 28A (2) of the Supreme Court Act 1981 for an order for the amendment of the case stated.”
That issue was further considered by the Divisional Court in DSG Retail Ltd v Stockton on Tees Borough Council [2006] EWHC 3138 (Admin), in which Waller LJ said:
“61 I consider it impermissible on an appeal by way of case stated for reference to be made to such further material outside the record provided by the case stated. The parties to the proceedings below are given an opportunity to make representations on the draft of the case stated. That is now contained in the Criminal Procedure Rules, Part 64.2 (2). This is the opportunity afforded to the parties to ensure that all relevant facts are included.”
That is not, of course, to say that agreed errors cannot be corrected. Thus in R (on application of Russell) v Director of Public Prosecutions [2006] EWHC 3054, Mr Justice Goldring (as he then was) admitted agreed corrections of small fact to the case.
It is quite clear from the material placed before the court that there are real issues as between those who signed witness statements on behalf of the appellant and the court. In the circumstances we take the very clear view that this court is limited to the four corners of the case and we decline to go beyond them.
With that preliminary point, we turn to the facts. The allegation against this appellant was that on 27 May 2007 at Flackwell Heath in the County of Buckinghamshire, without lawful excuse, he destroyed a Vauxhall Astra belonging to Lynne Julie Russell. There is no doubt that damage was done to that lady's motor car.
The key evidence at the hearing was provided by a witness, Paul Collins. The case stated repeats his evidence in this way:
“At about 8 pm on 27 May 2008 he was standing on the balcony having a cigarette. He saw four males at the bottom of the steps. Two walked over to the garages and came back empty handed. One of the males jumped on the bonnet of the car and kicked in the windscreen. Another male went around the side of the car and either kicked or punched in the side window. The body movements observed were as if he was kicking or punching. He could hear smashing and then thumping. Another male went around the back of the vehicle and kicked in the window. The male who went round the side was the smaller of the two and was recognised by Mr Collins who described his view as 'ever so clear', it was daylight and he was 18-20 yards away. He stated he had a clear and unobstructed view. There was a brick wall but he could see the car and the passenger side and the bonnet. There were 2 spaces and the car was not parked in the one nearest the wall. The wall was over 6 ft but Paul Collins was standing about 15 ft up and could see over the top of the wall from where he was standing. Nothing was obstructing his view.”
[Mr Collins] said he called for his wife to telephone the police who attended.
At a subsequent identification parade Mr Collins identified the appellant, being the smaller of the two, who, he said, was at the passenger side of the vehicle. He said that he had known the appellant for some 6 or 7 years. He was 100 per cent sure of his identification. There were other witnesses to the incident but none other gave evidence that added to that provided by Mr Collins in relation to the identification of the appellant.
It is important to note the submission made by the appellant's solicitor at the close of the prosecution case. According to the stated case, it was argued that there had been four males and one female present. It was not possible to be clear as to the role of the males. It was not possible to see behind the wall as to what was going on on the driver's side. Mr Collins had said that the male to the rear of the car could not be seen except for his head and shoulders. The appellant was 5-foot tall and was said to be on the passenger side of the car. From the body movements it looked like he was punching or hitting the car. It was entirely possible that Mr Collins was mistaken.
The Crown submitted that Mr Collins' evidence was credible and reliable. He said he had a clear view of the passenger side, front and part of the back of the car.
The magistrates then determined that there was a case to answer, and heard the appellant as well as his co-defendant (who was acquitted) give evidence. The appellant said he had never touched the car. He had not known it was smashed until he walked around the back.
The case goes on at paragraph 6:
“In view of the submissions from the defence in relation to the obstruction caused by the wall we felt it was appropriate to conduct a site visit. This course of action was supported by the appellant …..
We do not recollect any discussion or agreement about which car would be used to be parked in the relevant position at the 'view'. We had not agreed to a reconstruction of events; our intention was to have a view of the scene.”
The issue which arises on this appeal concerns what happened at the view. We quote from the case as to the circumstances:
“We arrived first at the site and therefore before the defence advocate. On arrival at the site, we parked our car in the parking space which it was accepted had been the space where the vehicle, the subject of the charge, had been parked. The magistrate who was driving parked in that space in order to secure it as the car park was busy at the time. Had we been advised that another car needed to be parked there for the purposes of a reconstruction we would have...
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