R (on the application of Teresa Skelton) v Winchester Crown Court Crown Prosecution Service (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lindblom,Mr Justice Edis |
| Judgment Date | 05 December 2017 |
| Neutral Citation | [2017] EWHC 3118 (Admin) |
| Docket Number | Case No: CO/5769/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 05 December 2017 |
[2017] EWHC 3118 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lindblom
and
Mr Justice Edis
Case No: CO/5769/2016
and
Mr Matthew Farmer (by direct access) for the Claimant
Mr Michael Bisgrove (instructed by the Crown Prosecution Service Appeals and Review Unit) for the Interested Party
The Defendant did not appear and was not represented
Hearing date 15 November 2017
Judgment Approved by the court for handing down (subject to editorial corrections)
Introduction
In determining this claim for judicial review we must consider whether the Crown Court could properly refuse to state a case for the opinion of this court, having convicted a defendant, on her appeal from the magistrates' court, of an offence of common assault, her main grievance being that the Crown Court should have dealt with a defence of lawful self-defence and failed to do so, thus rendering her conviction unsafe.
The claimant, Teresa Skelton, was convicted of common assault by District Judge Gillibrand, sitting in the Aldershot Magistrates' Court on 29 April 2016. She appealed against that conviction to the Crown Court. Her appeal was heard by H.H.J. Cutler C.B.E. and two magistrates, sitting in the Crown Court at Winchester on 3 and 4 October 2016. The Crown Court dismissed the appeal. On 24 October 2016 Ms Skelton made an application to the Crown Court to state a case. That application was refused on 25 October 2016. On 7 November 2016 the Crown Court provided a statement of reasons, explaining why it had proceeded on the appeal as it did and why it now refused to state a case. On 8 November 2016 Ms Skelton's claim for judicial review was filed with the court, challenging the Crown Court's refusal to state a case.
The incident to which the claim relates occurred on 22 January 2016, at Ashburton Hall in the offices of Hampshire County Council in Winchester. On that day the Hampshire Police and Crime Commission Panel was meeting in the hall. Ms Skelton attended the meeting, despite, it seems, having previously been told by the county council that she should not do so, because it was feared that she might disrupt the meeting. The prosecution's evidence at trial and on appeal, which Ms Skelton contested, was that she had tried to disrupt the meeting, and that, when asked to leave the hall, she had refused to do so. A Police Community Support Officer, P.C.S.O. Laurence Day, arrived and escorted her from the hall with the help of a senior police officer who was attending the meeting, Olivia Pinkney, then the Deputy Chief Constable of Sussex, now the Chief Constable of Hampshire. The prosecution alleged that, once outside the hall, Ms Skelton had kicked P.C.S.O. Day in the shin. She firmly denied having done so. In its statement of reasons the Crown Court said that it preferred the prosecution's evidence that Ms Skelton had kicked P.C.S.O. Day as had been alleged, that she had kicked P.C.S.O. Day in retaliation, that the question of whether lawful force had been used to remove the clamant from the hall did not arise, since the assault occurred after she had been removed, and that she had not raised any issue of lawful self-defence in her evidence.
In the claim for judicial review it is contended, in effect, that in the circumstances it was incumbent on the Crown Court to determine whether P.C.S.O. Day was entitled to remove Ms Skelton from the hall by force, and that the court erred in failing to consider the defence of self-defence that is said to have arisen from the evidence before it, in particular from evidence given by prosecution witnesses. The remedy sought in the claim form is stated to be:
"An order that the Winchester Crown Court state a case for the consideration of the High Court as to whether [it] erred in refusing to consider the defence of self defence when it was plainly raised on the evidence in the case, and erred in failing to reach a decision as to the lawfulness of the forceful eviction on Teresa Skelton from a meeting at Winchester County Council Offices. …."
The application for permission to apply for judicial review was refused on 20 February 2017 by Nicol J.. The application was then renewed, and at a hearing on 5 May 2017 was granted by Ouseley J.. Although the reasons given by Nicol J. for his refusal of permission are before us, we do not have a transcript of the observations made by Ouseley J. when he granted the renewed application.
The issue in the claim
The central issue in the claim is whether the questions submitted to the Crown Court in the application for it to state a case were frivolous, so that the Crown Court could lawfully refuse to state a case for the High Court.
Appeals by way of case stated
Section 28(1) of the Senior Courts Act 1981 provides that "[subject] to subsection (2) [which disapplies subsection (1) to judgments or other decisions of the Crown Court relating to trial on indictment], any order, judgment or other decision of the Crown Court may be questioned by any party to the proceedings, on the ground that it is wrong in law or is in excess of jurisdiction, by applying to the Crown Court to have a case stated by that court for the opinion of the High Court". It is not open to an applicant to pursue a challenge on the grounds that a decision of the Crown Court is against the weight of the evidence.
The Crown Court may refuse to state a case if the application is frivolous. In R. v North West Suffolk (Mildenhall) Magistrates' Court, ex parte Forest Heath District Council [1998] Env. L.R. 9 Lord Bingham C.J., with whom Millett and Potter L.JJ. agreed, said (at pp.16 and 17):
"I think it very unfortunate that the expression "frivolous" ever entered the lexicon of procedural jargon. To the man or woman in the street "frivolous" is suggestive of light-heartedness or a propensity to humour and these are not qualities associated with most appellants or prospective appellants. What the expression means in this context is, in my view, that the court considers the application to be futile, misconceived, hopeless or academic. That is not a conclusion to which justices to whom an application to state a case is made will often or lightly come. It is not a conclusion to which they can properly come simply because they consider their decision to be right or immune from challenge. Still less is it a conclusion to which they can properly come out of a desire to obstruct a challenge to their decision or out of misplaced amour propre. But there are cases in which justices can properly form an opinion that an application is frivolous. Where they do, it will be very helpful to indicate, however briefly, why they form that opinion. A blunt and unexplained refusal, as in this case, may well leave an applicant entirely uncertain as to why the justices regard an application futile, misconceived, hopeless or academic. Such uncertainty is liable to lead to unnecessary litigation and expenditure on costs."
and (at pp.18 and 19), endorsing the decision of the Divisional Court in Bracegirdle v Oxley and Cobley [1947] K.B. 349:
"… It is obviously perverse and an error of law to make a finding of fact for which there is no evidential foundation. It is also perverse to say that black is white, which is essentially what the justices did in [ Bracegirdle v Oxley and Cobley]. But it is not perverse, even if it may be mistaken, to prefer the evidence of A to that of B where they are in conflict. That gives rise, in the absence of special and unusual circumstances …, to no error of law challengeable by case stated in the High Court. It gives rise to an error of fact properly to be pursued in the Crown Court."
The applicant may challenge a decision of the Crown Court to refuse to state a case by making a claim for judicial review. When this is done, it is open to the court to quash the decision to refuse to state a case and proceed to a substantive hearing of the application for a case to be stated, using the affidavit evidence provided by the parties as the "case stated". Adopting that procedure has the benefit of avoiding the delay involved in the Divisional Court having to wait for the case to be returned to the Crown Court (or the magistrates' court) for a case to be stated before deciding whether a conviction should be quashed (see, for example, R. v Reigate Justices, ex parte Counsell (1984) 148 J.P. 193 and R. v Ealing Magistrates' Court, ex parte Woodman [1994] Crim L.R. 372). In R. v Blackfriars Crown Court, ex parte Sunworld Ltd. [2000] 1 W.L.R. 2102, Simon Brown L.J., as he then was, said (at p.2106F-H) that "[if] the court below has already (a) given a reasoned judgment containing all the necessary findings of fact and/or (b) explained its refusal to state a case in terms which clearly raise the true point of law in issue, then the correct course would be for the single judge, assuming he thinks the point properly arguable, to grant permission for judicial review which directly challenges the order complained of, thereby avoiding the need for a case to be stated at all …", and that "[this] court for its part will adopt whatever course involves the fewest additional steps and the least expense, delay and duplication of proceedings".
Permission to apply for judicial review having been granted in this case, it seemed to us that a pragmatic approach was sensible. We indicated this to counsel at the outset. They agreed. We then heard full argument, on the basis that if we were to find the Crown Court was in error in refusing to state a case, we would be in a position to address the questions it had been invited to pose for this court.
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