Tony A Gibbons Christopher D Parnell (Appellants) DPP (Defendant)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WALLER,Sir Edwin Jowitt |
| Judgment Date | 12 December 2000 |
| Judgment citation (vLex) | [2000] EWHC J1212-6 |
| Docket Number | CO/1480/2000 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 12 December 2000 |
[2000] EWHC J1212-6
IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
QUEEN'S BENCH DIVISION
Lord Justice Waller
Sir Edwin Jowitt
CO/1480/2000
MR D SMART (instructed by Hedleys, 6 Eldon Chambers, Wheeler Gate, Nottingham, NG1 2NS) appeared on behalf of the applicant
MR J HETT (instructed by CPS Nottinghamshire, 2 King Edward Court, King Edward Street, Nottingham, NG1 1EL) appeared on behalf of the respondent
The appellants, Mr Gibbons and Mr Parnell, were charged with assault under section 47 of the Offences Against The People Act 1898. The allegation against them was that they had jointly assaulted a man called Mark Gitsham. It would seem that there was no issue that there was a fight between Mark Gitsham and the appellants. Their case was, however, that they were simply defending themselves.
From the case stated by means of which they appeal to this court, it is clear that many of the witnesses could not give positive evidence about what had happened, and in particular in relation to the issue whether this was self-defence or whether this was an attack by these appellants. One witness, however, a lady called Sara Stevenson, did give positive evidence that she had seen the incident. According to the case stated, she said that she was watching the incident from the toilets in Market Square, which is in the centre of the city of Nottingham, and that she was about 25/24 yards from the fight.
At the close of the prosecution case, a submission was made of no case. That was rejected. Then the appellants gave evidence. The case thus ran into a second day. Following the completion of the evidence, submissions were made by counsel on both sides and that brought the case to halfway through that second day. According, again, to the case stated, what happened thereafter was that the Stipendiary Magistrate, obviously before delivering any decision, during the luncheon adjournment, as he puts it, "had cause to visit Market Square", in the centre of the city of Nottingham. He says:
"… I did note the site of the alleged assault, the distance between the toilets and the point at which Mr Gitsham was allegedly attacked and any possible obstructions to eyelines. This was not a planned visit to the locus in quo."
The finding of the magistrate as appears from the case stated was that the assault had taken place and that it was not self-defence. What the magistrate says is that he was of the opinion that he could take account of his local knowledge of the locus in quo, particularly of the area known as Market Square, and that he was of the opinion that the witness Stevenson was a witness not known to any party who had given a clear account of this assault, who had correctly identified the assailants, and whose account was so markedly similar to that of other witnesses that her view must have been clear and unimpeded. In the result, he took into account a visit that he made during the luncheon adjournment and found the appellants guilty.
The authorities on the question whether a judge or magistrate should make a visit without either warning the parties or without inviting the parties to attend are perhaps not as clear as they might be. Possibly the reason for that is that there will obviously be circumstances in which it would be a nonsense to say that a tribunal that is trying a case should not be able to take into account its local knowledge. We have an example indeed on this appeal, where Sir Edwin Jowitt clearly had some knowledge of the Market Square in the city of Nottingham, and it would be a nonsense to suggest that he should not be entitled to take account of that local knowledge, as indeed it would have been nonsense to suggest that the magistrate in this case should not take some account of local knowledge. However, there are circumstances where either a reconstruction is going to take place (where clearly the presence both of the lawyers and the parties is necessary), or when what is occurring is not simply the taking of a view in order to have some general impression of the locus in quo but where something of significance is going to occur at that view.
The most recent authority in the criminal context is the case of Parry v Boyle (1986) 83 Cr App R 310, where the judgment was given by Glidewell LJ. In that case the position was that after giving some indication to the parties that the site of a road incident was going to be visited, the magistrate did in fact make a visit without the parties being present. The court in that case sought to give guidance to magistrates as to how to approach these types of situations. Glidewell LJ quoted extensively from the judgment of Widgery LJ, as he was then, in the case of Salsbury v Woodland and Others (1969) 1 QB 324, where Widgery LJ said this:
"It is crystal clear that the judge's conclusions on this question were largely dependent upon the impression which his view had made upon him. In those circumstances Mr Fox-Andrews [counsel for the third defendant] submitted that the judgment should be set aside, for two main reasons. First, he contended that the view was an irregular view, that it vitiated the judgement, and that this...
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