R Osher Friedman v Snaresbrook Crown Court
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nicol |
| Judgment Date | 17 July 2019 |
| Neutral Citation | [2019] EWHC 2209 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 17 July 2019 |
| Docket Number | No. CO/5166/2018 |
[2019] EWHC 2209 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Mr Justice Nicol
No. CO/5166/2018
and
Mr D. Sonn (instructed by Sonn Macmillan Walker) appeared on behalf of the Claimant.
THE RESPONDENT did not attend and was not represented.
Mr L. Chimweze (instructed by the Crown Prosecution Service) appeared on behalf of the Interested Party.
This is a judicial review of the refusal of Snaresbrook Crown Court to state a case for the opinion of the High Court. As is usual, the Crown Court has not appeared and is not represented. The effective defendant is the Crown Prosecution Service, which was named as an interested party. The CPS failed to lodge an acknowledgement of service within the prescribed time. It has issued an application for an extension of time. That application is not opposed by the claimant and I grant the necessary extension. The claimant is represented by Mr David Sonn. The CPS is represented by Mr Leslie Chimweze. I am grateful to both of them for their submissions.
The origin of the proceedings was an incident on 16 January 2017 when Mr Pond, a parking enforcement officer, was on duty in the area of Leaside Road and Theydon Road in Hackney. Mr Pond considered that a gold Lexus car was illegally parked on a double yellow line. He began to enter the details of the vehicle into his handheld machine with a view to ticketing the Lexus. The owner of the Lexus was a man called Mordecai Friedman. He considered that he was entitled to park the vehicle where it was. He and the claimant Osher Friedman, the brother of Mordecai, became engaged in an argument.
Mr Pond had a bike. It was blocked by two parked vehicles. He tried to move it out. The claimant says that in doing so the black box on the rear of the bike hit him in the chest. Whether it did or not, no injury was caused to the claimant. Mordecai Friedman then moved his car to the rear of the bike, effectively blocking Mr Pond in. Mr Pond tried to call for assistance from his control room. The claimant shouted over him. Mr Pond tried to move his bike free. It is said that this resulted in the bike striking the Lexus twice. If that happened, no damage apparently was done. Mr Pond continued to try to get out of the confined space. As he did so, the bike collided with Mordecai Friedman. The claimant took hold of Pond, together with another onlooker, and pulled him so that the bike went up into the air and Mr Pond landed on the ground. Thereafter, the claimant punched Mr Pond while he was lying on the ground.
The claimant was prosecuted for an offence of common assault contrary to the Criminal Justice Act 1988 s.39. He pleaded not guilty. His defence was that he had acted in defence of himself or his brother or to prevent the commission of an offence by Mr Pond. He was convicted by the Stratford Magistrates' Court on 22 November 2017. He was given a conditional discharge for six months and ordered to pay compensation of £175 to Mr Pond and costs of £625.
The claimant appealed to Snaresbrook Crown Court. The appeal was heard by Her Honour Judge English and justices. On 24 April 2018 the appeal was dismissed. The conviction and sentence were upheld. The claimant was also ordered to pay £520 towards the prosecution's costs of the appeal.
On 12 August 2018 the claimant applied to the Crown Court to state a case for the opinion of the High Court. The claimant had two submissions. (a) There was insufficient evidence for the Crown Court's adverse findings of fact and (b) the court had misinterpreted the Criminal Justice and Immigration Act 2008 s.76. The question which the claimant asked the court to state was “Did we err in law in finding that the claimant's single punch to the complainant was not a lawful act in defence of another or the prevention of crime?” In a written decision dated 10 October 2018, Her Honour Judge English refused to state a case on the grounds that the conclusion of the court had not involved a decision as to the law, but was a finding of fact, having applied the law to the particular circumstances of the case.
The present claim form was issued on 21 December 2018. Permission to apply for judicial review was granted by King J on 13 February 2019. For the purposes of the present application, it is not necessary to say more about the Crown Court's reasons for dismissing the appeal, although those were given in some detail. Section 76 of the 2008 Act says this:
“(1) This section applies where in proceedings for an offence—
(a) an issue arises as to whether a person charged with the offence (‘D’) is entitled to rely on a defence within subsection (2), and
(b) the question arises whether the degree of force used by D against a person (‘V’) was reasonable in the circumstances.
(2) The defences are—
(a) the common law defence of self-defence …
(b) the defences provided by section 3(1) of the Criminal Law Act 1967…
(3) The question whether the degree of force used by D was reasonable in the circumstances is to be decided by reference to the circumstances as D believed them to be, and subsections (4) to (8) also apply in connection with deciding that question.
(4) If D claims to have held a particular belief as regards the existence of any circumstances—
(a) the reasonableness or otherwise of that belief is relevant to the question whether D genuinely held it; but
(b) if it is determined that D did genuinely hold it, D is entitled to rely on it for the purposes of subsection (3), whether or not—
(i) it was...
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Isle Investments Ltd v Leeds City Council
...not found in the judgment. It may also set out the evidence on which findings are based: cf. R (Friedman) v Snaresbrook Crown Court [2019] EWHC 2209 (Admin) at §13. It may express further or more detailed findings of fact. (7) It is well-established that an aggrieved party may “obtain more......