QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF YOGANATHAN SHANMUGANATHAN||(CLAIMANT)|
|SOUTH WESTERN MAGISTRATES' COURT||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MISS K STEYN (instructed by THE TREASURY SOLICITOR) appeared on behalf of the DEFENDANT
Crown Copyright ©
MR JUSTICE KEITH:
"The Clerk to the Justices gave advice to the clerk to the court and to the Justices themselves concerning 3 points. The Applicant submits that he was wrong to do this since there was a clerk who was controlling the conduct of the case and that the clerk to the Justices had not been present for the whole of the evidence. Was the Clerk to the Justices wrong in law to intervene in these circumstances."
"I enclose for your information the draft served on me by counsel. From this draft I accept[ed] Item 4 as being a point of law for which the justices would be asked to state a case. The court was then enabled to exercise its jurisdiction to hear an application for bail pending the outcome of the appeal."
"You have 21 days from the date of conviction on which to further consider the position. You will be entitled to add, amend or substitute any further points of law [or] jurisdiction on which you are asking the justices to state a case for the opinion of the High Court. Otherwise I will at the end of the 21 day period refer the application as it stands to the Justices."
The claim for judicial review
The remaining questions
"The chairwoman stated that the defendant's good character was no defence. Is this correct given the advice of the Clerk to the Justices that good character can only go to credibility not propensity, likelihood of committing the offences. Did the clerk to the Justices err in law. Did the justices err in fact/law after receiving that advice."
In effect two questions were being asked. First, the claimant's solicitor at his trial had relied on the claimant's good character. It is not in dispute that Mr Mulhern advised the magistrates that a defendant's good character was not a defence to a criminal charge. Thus, the first question was whether that advice was correct. In my view, it cannot possibly be said that that advice was not correct. The magistrates would inevitably have concluded that Mr Mulhern was doing no more than correctly advising them that it was open to them to convict the claimant, even though he had no previous convictions.
"Was the clerk to the court wrong in allowing the Crown to pursue a line of questioning concerning an allegation of false imprisonment. Defence say this is wrongly admitted - inadmissible - irrelevant. Was the clerk wrong in law to allow it since it was irrelevant and prejudicial."
The point being made is that the claimant was originally charged with falsely imprisoning the complainant, as well as assaulting her. That charge was not proceeded with, and the criticism is that despite that the prosecution was permitted to cross-examine the claimant about whether he had falsely imprisoned the complainant immediately after assaulting her, on one of the occasions in question. In my view, it is inevitable that the magistrates would have regarded this point as unarguable. The fact that the claimant had originally been charged with false imprisonment was not put to him, and his conduct immediately after he had allegedly assaulted the complainant was part of the surrounding circumstances on which he could properly have been cross-examined.
"Was the advice given to the justices by the clerk to the justices wrong in law, namely that the evidence adduced that the victim was violent in a bar and also was responsible for damage to the defendant's bed was not relevant and incapable of being evidence that the victim has a propensity for violence. The Appellant submits that this advice was wrong. The Appellant submits that this is [germane] to the nature of the victim and of the relationship from which the offences arise."
The claimant's defence to the charges was that the complainant had attacked him, and that any injuries which he had caused to her had been caused in self-defence. The defence case was that her propensity to violence was demonstrated by the incidents to which questions 6 refers. Again, Miss Steyn did not seek to argue that if the magistrates had been advised that this evidence was irrelevant, that advice might have been wrong. The issue is whether that was the advice given to the magistrates. That will be for the magistrates to say, though I note that in their witness statements neither Mr Mulhern nor the chairwoman of the bench deny what the claimant's solicitor has unequivocally asserted was the advice which Mr Mulhern gave. It follows that the magistrates must consider question 6 as well.