Preston v The Crown Prosecution Service
| Jurisdiction | England & Wales |
| Judge | Mr Justice Supperstone |
| Judgment Date | 04 February 2013 |
| Neutral Citation | [2013] EWHC 456 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/7962/2012 |
| Date | 04 February 2013 |
[2013] EWHC 456 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at:
Manchester Civil Justice Centre
1 Bridge Street West
Manchester
M60 9DJ
The Honourable Mr Justice Supperstone
Case No: CO/7962/2012
Mr Lacide (instructed By David Lacide & Co Solicitors) Appeared On Behalf Of The Claimant.
Mr Lodata (instructed By The Crown Prosecution Service) Appeared On Behalf Of The Defendant.
(Draft for Approval)
The appellant appeals by way of case stated against his conviction by Ormskirk Magistrates' Court on 10 April 2012 of an offence of common assault contrary to section 39 of the Criminal Justice Act 1988. On 21 November 2011 information was preferred by the respondent against the appellant that on 24 August 2011 he did assault Miss Patricia Sheldon by beating her contrary to section 39 of the Act. The complainant and the appellant are related. Miss Sheldon is his half sister.
At paragraph 2 the statement of case sets out a brief summary of the evidence, which includes the following:
"ii. The complainant Miss Sheldon had a long history of mental health problems and suffered from Bi-Polar and was at the time of the allegation taking medication for her condition
iii. The complainant had previously been excluded from the home address of the appellant, namely 10 Heversham, Skelmersdale. It was accepted by Miss Sheldon that this was the case and that her understanding was that she was not welcome at the address
iv. Miss Sheldon told the court that on the day of the offence, whilst in her pyjamas and slippers, she attended the home address of the appellant for the purpose of speaking to a different member of the family other than him
v. Miss Sheldon maintained throughout her evidence that she was not angry or aggressive towards the appellant. Miss Sheldon told the court that she went up the stairs to look for ' Lee'. Miss Sheldon told the court that the appellant came at her 'like a raging bull!'. Miss Sheldon denied any attempts to kick or knee the defendant in the stomach or groin area. Miss Sheldon's recollection was that more than one punch was administered by the appellant and put it as many as 'ten or twenty'.
vi. Ms Gemma Dudley was upstairs in the house and she testified that she saw Miss Sheldon enter the property and, when Miss Sheldon did not leave at the request of the appellant, a struggle ensued at the top of the staircase. She told the court that the appellant and Miss Sheldon were forced through the spindles in the struggle. She witnessed the appellant punch the complainant once to the face and she shouted 'stop' when she saw blood on the face of the complainant.
vii. The Section 9 (of the Act) statement of Dr Gill confirmed on the examination of Miss Sheldon on the 24.08/2011 that she had sustained a laceration to the right cheek, under her right eye, loosening of her upper teeth, bruising and swelling above her right eye, bruising to the bridge of her nose and a laceration to upper inner of top lip.
…
x. The appellant told the court that he had made numerous requests for Miss Sheldon to leave the property. Miss Sheldon did not leave and eventually made her way up the stairs. The appellant denied that he had lost his temper but did accept that he had punched the complainant twice to the face in self defence, as he believed that during the struggle she was going to bite him. The appellant maintained that the force used was reasonable force throughout. The appellant believed that the cut to the complainant's face, under the eye, was attributable to the watch that he was wearing on his right wrist at the time of the first blow. He also believed that the loosening of the complainant's teeth and the marks to his knuckles were attributable to the second blow."
The findings of fact made by the justices included the following. The appellant's evidence that Miss Sheldon came at him on the landing was not accepted. Both the evidence of the appellant and Ms Dudley corroborated each other as there were kicks to the stomach and wrestling, that resulted in them both being on the floor and the appellant kneeling over her. The first punch was reasonable in the circumstances, as the appellant had knowledge of Miss Sheldon's mental health issues and of a previous violent incident in the family. Ms Dudley's evidence of only seeing one blow was due to her view being obstructed. Ms Dudley observed the punch to the mouth and saw the raised clenched fist again and saw the blood and shouted "Stop". Her actions caused the appellant to stop. The second punch was unreasonable as he was already restraining her with a locked arm and was leaning over her. It would have been unlikely that Miss Sheldon would be able to bite the appellant, taking into consideration her size and physical strength, whilst he was holding her down on the floor with a locked arm, as per his own evidence. The second punch was therefore unnecessary and went beyond what was reasonable and constituted excessive force. The appellant was a man of good character and this went to his credibility. However, the Crown had convinced the court beyond all reasonable doubt that excessive force was used.
The question for the opinion of this court is stated by the justices in the following terms:
"Whether we misdirected ourselves in applying the law of self defence to the above findings of fact in concluding that the force used by the...
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