R (Murchison) v Southend Magistrates Court
| Jurisdiction | England & Wales |
| Judge | LADY JUSTICE HALLETT,MR JUSTICE JACK |
| Judgment Date | 24 January 2006 |
| Neutral Citation | [2006] EWHC 569 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/315/2006 |
| Date | 24 January 2006 |
[2006] EWHC 569 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2
Lady Justice Hallett Dbe
Mr Justice Jack
CO/315/2006
MR M MAITLAND (instructed by Messrs Portmans) appeared on behalf of the CLAIMANT
MR T NAIK (instructed by Essex Crown Prosecution Service) appeared on behalf of the DEFENDANT
On 7th June 2005, the appellant was convicted of an offence of common assault by the Southend-on-Sea Magistrates' Court. The background to the alleged assault was as follows: on 13th August 2004 DB, the complainant, and his foster brother, LW, were crossing Victoria Avenue in Southend-on-Sea on their bicycles. DB reached the middle of the pelican crossing and shouted to LW, in graphic terms, to get a move on. At this point, it was alleged that the appellant approached and said, "Are you talking to me?" It was alleged he then slapped DB on the head with an open palm and punched him on the arm with a clenched fist. The two boys attended the local police station that same day to report the incident.
On 23rd August, DB returned to the police station to say that he had seen the appellant again; this time at a railway station. The claimant was arrested that day and interviewed. He accepted he was present on the crossing on the day in question, but denied any assault. He said any contact between him and DB was accidental when DB collided with him as he rode his bicycle across the crossing.
At trial, both boys gave evidence. Counsel had the advantage of an incident report in which it was recorded that the boys' foster carer had telephoned the police to say that, in her opinion, the boys had fabricated the allegation as a practical joke. She was called as a witness at trial and without objection gave evidence to the effect that both boys had a history of making up stories. She was sufficiently concerned about what they had said to make the telephone call to the police. No application was made to adduce the appellant's convictions. The appellant declined to give evidence. The Magistrates retired just once.
On their return, the chairman announced that despite inconsistencies in the boys' accounts, the bench found them credible. The Magistrates took note of the appellant's account in interview, but they drew an inference adverse to him from his failure to give evidence. They found the case proved.
The Chairman immediately declared that the bench had seen the appellant's antecedents, and that the bench was minded to adjourn the matter for an "all options" pre-sentence report. Counsel objected on the basis that the chairman's comments indicated the bench must have known of the appellant's previous convictions before reaching their verdict. The legal adviser announced in open court that they had not been informed of the appellant's record at that stage. They only learned of the appellant's record after they had agreed upon their verdict. This was not contradicted by the members of the court. 5.1. The present application for judicial review is based on the same argument that there has been a material irregularity in the proceedings, in that the Magistrates must have known of the appellant's convictions before they convicted him, in law.
Mr Maitland, who appears in this court but did not appear below, argues on behalf of the appellant that the decision to convict is not made until the decision is announced in open court. He referred us to the decision in R v Coates [2004] 1 W.L.R 3043. Coates resulted from the tragic death of Kay LJ. He had presided over a constitution of the Court of Appeal Criminal Division which had heard an appeal but reserved judgment. He died before judgment was given.
In Coates the court held that notwithstanding the apparent agreement of all three members of the court as to the decision, and the reasons for it, for the purposes of section 55 of the Supreme Court Act 1981, the decision was not properly to be treated as binding on the court until announced in open court. Until then, it was open to any member of the court to change their mind.
In further support of his contention, Mr Maitland referred us to the observations of Steyn L in R(Anufrijeva) v The Home Secretary [2004] 1 AC 604, to the effect that notice of a decision is required before it can have the character of a determination having legal effect. This was the ground upon which leave to bring these proceedings was granted. Permission was refused on an alternative ground, which was not pursued before us namely that that the decision was perverse in the light of the evidence.
Mr Maitland referred us, in his very helpful written submissions, to decisions of this court, for example R v Birmingham Magistrates Court ex parte Robinson [1986] 150 JP 1 and R v Downham Market Magistrates Court ex...
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