Moses Adler v Crown Prosecution Service
| Jurisdiction | England & Wales |
| Judge | PRESIDENT OF THE QUEEN'S BENCH DIVISION |
| Judgment Date | 09 July 2013 |
| Neutral Citation | [2013] EWHC 1968 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 09 July 2013 |
| Docket Number | Case No: CO/1246/2013 |
[2013] EWHC 1968 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
PRESIDENT OF THE QUEEN'S BENCH DIVISION
and
Mr Justice Cranston
Case No: CO/1246/2013
Mr Neil Corre (instructed by Sonn Macmillan Walker) for the appellant
Mr Simon Heptonstall for the CPS
Hearing dates: 18 June 2013
Approved Judgment
PRESIDENT OF THE QUEEN'S BENCH DIVISION
On 16 and 17 October 2012 the appellant was tried by District Judge Brennan at the Willesden Magistrates' Court for an assault on Mr Brian Moore, the then Chief Constable of Wiltshire contrary to s.39 of the Criminal Justice Act 1988. The judge found the case proved. He imposed a conditional discharge of two years, a contribution to costs of £250 and compensation to Mr Moore of £250. The appellant appeals by way of case stated to the High Court on the question of whether there was sufficient evidence for the judge to find that Mr Moore had lawfully arrested his friend JC whom the appellant had tried to free by assaulting Mr Moore.
In the present case the principles of law were not in dispute. Nor were the majority of the facts. The point arose in the context of the hearing before the judge where the question had arisen as to whether Mr Moore, who was out jogging in plain clothes, had arrested JC. There was no doubt that Mr Moore had seen JC break a window of a car. There was no doubt that he had told JC he had seen him do that and had taken hold of him. The sole issue turned on whether there was sufficient evidence for the judge to find that Mr Moore had made clear by the use of the appropriate language to JC in those circumstances that he was under arrest, as is required by s.28(1) of the Police and Criminal Evidence Act 1984 (PACE).
Stating cases for the Divisional Court
As the Criminal Procedure Rules make clear there is a fundamental distinction between a case stated where the issue is a question of law on the facts found and a case stated where the issue is whether there is sufficient evidence for a finding which underpinned a conclusion.
In the former case, as Part 64.5 (1) and (5) make clear, the facts as found by the first instance court must be set out, but the evidence must not. In Tuthill v DPP [2011] EWHC 3760 (Admin) this court emphasised at paragraphs 19–20 the importance of complying with the rules, as the evidence had been set out in the case stated when the only issue for the court was a question of law. In a postscript to the judgment at paragraphs 31–33 the court made clear that it would consider making an order for costs against the Justices Clerk or HMCTS if unnecessary costs were incurred because the evidence had been set out.
In the latter case, where the issue is the sufficiency of the evidence for the findings made which underpinned the decision, Part 64.5 (2) makes clear that the evidence shall be specified in the case. In the present appeal the District Judge did not do that. The case was stated as if there was a question of law; the facts were found, but the evidence was not set out. This meant that expense had to be incurred by an application to this court. The single judge ordered that the case stated be amended by the addition of a transcript of the evidence of Mr Moore. It was on the basis of the transcript that the appeal was conducted.
We would urge again that those requesting that a case be stated make clear what the issue is and those drafting the case comply with Part 64.5 of the Criminal Procedure Rules.
The facts as found which are undisputed on the appeal
The facts, save on the one issue to which we have referred, are largely undisputed. They can be summarised as follows:
i) On 22 May 2012 the appellant, then aged 19, and a friend, JC, who was 17 years old, had participated at a demonstration in relation to the attendance of Israeli politicians at a nearby local hotel. The appellant was a man of good character and evidence of good character was given by his rabbi.
ii) Mr Moore, the then Chief Constable of the Wiltshire Constabulary, was in London on a secondment as Head of the UK Border Force. On 22 May 2012 he was out jogging, off duty in jogger's clothing. Mr Moore was 53 years old and 6'1" high.
iii) When he was jogging he saw JC break the front passenger window of a Mercedes in his full and clear view. Mr Moore called out to JC to stop. JC did not stop but instead entered another car, a BMW. Mr Moore grabbed JC by the arm, pulling him from the car and saying, "I am a police officer and I have just seen you smash the car window. Out."
iv) Mr Moore took JC, holding on to his arm, back towards the damaged motor car, hoping to get a uniformed officer involved. However, he had no mobile phone to call the police himself. He thought he had the attention of an adult who was nearby and said, "Call the police. I am a police officer and I have just seen him break a window of the Mercedes car."
v) JC then began to struggle. Over the course of the next two and a half minutes, Mr Moore repeatedly told JC and the gathering crowd that he was a police officer, that he needed help and that he wanted the police to be called.
vi) The appellant, recognising JC, came over and, having asked what was going on, was properly told by Mr Moore that Mr Moore was a police officer and that he had detained JC for breaking the window of the Mercedes car. He explained clearly to the appellant that he had no identification on him as he was out jogging.
vii) The appellant then laid hands on Mr Moore who was still holding the struggling JC. A struggle involving all three ensued, culminating in Mr Moore taking JC to the ground and the appellant continuing to try to help JC escape.
viii) It was clear to the appellant that the window of the Mercedes car had been broken and both the appellant and JC were repeatedly told by Mr Moore that he was a police officer and why he needed help.
ix) JC and the appellant were arrested formally by uniformed officers.
The decisions made by the CPS and the judge
JC was charged with assaulting Mr Moore and causing criminal damage to the car to the value of £700. At the outset of the trial the prosecution offered no evidence against JC on the criminal damage allegation and that was dismissed. We asked for an explanation of this. We were told that the owner of the Mercedes had not attended court. We then asked why the prosecution had not relied on the evidence of Mr Moore who had seen JC smash the window. We were given no explanation as to why this had not been done, as counsel representing the CPS before us had not been at the hearing and did not know why the CPS had not pursued the case. At the end of the prosecution case the judge accepted the submission of no case against JC. It was again unclear why the judge had reached this conclusion.
In relation to the arrest of JC the judge found that:
i) It was Mr Moore's belief that he was detaining JC for uniformed officers to arrest him, although once JC struggled, he believed he was arresting him. At no stage did Mr Moore use the word "arrest" or "I am arresting you". He had told him he was detaining him. Mr Moore's evidence was that he was unsure of the difference between "detain" and "arrest".
ii) Mr Moore was entitled to arrest JC under s.24 PACE (applicable to police officers) and under s.24A PACE (as an ordinary citizen). The judge concluded that what Mr Moore said to JC satisfied the conditions in s.28 and he had therefore lawfully arrested JC. The reasons were:
a) Mr Moore saw JC break the car window and try to escape from the scene.
b) Mr Moore made it clear by his words, by holding on to JC and marching him back to the damaged car, that JC was not free to leave. He also made it clear to JC that he had seen him break the car window.
c) By calling out for help, for the police to be called and holding JC throughout he was ensuring JC did not escape before a constable in uniform could take him to the police station.
d) Mr Moore made it clear to JC that he was a police officer and had arrested him for criminal damage and JC knew that.
In relation to the appellant the judge found:
i) As between the appellant's account and Mr Moore's account of what had happened, he accepted Mr Moore's. He rejected the appellant's account that he was punched by Mr Moore. Mr Moore had made clear to the appellant that he was a police officer and why he needed help.
ii) The appellant did not genuinely believe he was trying to free JC from a racist or other attack.
iii) The appellant had no defence to the charge of assault on Mr Moore.
The issue that was not raised
There was no dispute that the appellant had struck Mr Moore. The judge had rejected the evidence of the appellant that he was trying to free JC from a racist or other attack. There was no evidence that the appellant thought that JC was being wrongfully detained or arrested. At the outset of the hearing we therefore raised the question as to why the issue before the judge had not turned on s.3 of the Criminal Law Act 1967 — whether the appellant had been...
To continue reading
Request your trial