CO/2203/2003 
Neutral Citation Number: [2003] EWHC 2454 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2 

Wednesday, 15 October 2003
 
B E F O R E:

LORD JUSTICE BROOKE 

MR JUSTICE SILBER 

- - - - - - -
MARK JOHN MCAULIFFE
(CLAIMANT)

-v- 

DIRECTOR OF PUBLIC PROSECUTIONS
(DEFENDANT) 
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MS N HARFORD-BELL (instructed by Saunders & Co) appeared on behalf of the CLAIMANT
MR T SPENCER (instructed by Crown Prosecution Service) appeared on behalf of the DEFENDANT
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J U D G M E N T 

1.	MR JUSTICE SILBER:  Mark John McCauliffe appeals by way of case stated against a conviction recorded against him at the Barking Magistrates' Court on 30 January 2003 of assaulting Alison Jillions by beating contrary to section 39 of the Criminal Justice Act 1988.  
2.	The question posed by the case stated is: 
"Where the complainant of an assault denies acting in a way which would give rise to self defence, and we were not wholly convinced by her evidence; and the defendant, in his defence, alleges self defence and the use of reasonable force, was it open to us to convict the defendant of assault on the basis of using excessive force in self defence?"  
3.	Unfortunately, the case stated only deals very briefly with the facts which were found by the magistrates, although it does record at length the evidence that has been given.  It appears that the appellant and the victim had enjoyed a relationship for a number of years, but that they had a dispute on 2 June 2002.  In paragraph 2 of the case stated, the magistrates recorded that they had found "the appellant had assaulted Alison Jillions by using more force than was reasonable in the circumstances when pushing her away from him".  This point is developed later at paragraph 6(v) of the case stated when the magistrates said that they had found that: 
"The [prosecution] had proved, by adducing evidence of the injuries sustained by Miss Jillions, that the appellant had not acted in self defence when pushing Miss Jillions away, but had used more force than was reasonably necessary in the circumstances, and we therefore found the appellant guilty of common assault." 
4.	It is said on behalf of the appellant by Ms Harford-Bell that this reasoning was perverse because the magistrates did not appear to be accepting, in total, the evidence of either witness.  For my part, I consider that the magistrates were quite entitled to accept part of the evidence of one witness and part of the evidence of another witness.  It would therefore appear that what the magistrates had decided was that there had been some attack or threatened assault by Miss Jillions on the appellant who had then used excessive retaliatory force so that they were satisfied that the appellant had committed the offence with which he had been charged. 
5.	Therefore, the answer to the question posed is in the affirmative because, adopting the words of the case stated: where the complainant of an assault denies acting in a way which would give rise to self defence, and the magistrates were not wholly convinced by the complainant's evidence, and the defendant in defence alleges self defence and use of reasonable force, I consider that it was open to the magistrates to convict the defendant of assault on the basis of using excessive force in self defence.  
6.	Before parting with this case, it is necessary to comment on the way in which this matter came before the court.  A case stated ought to state "the facts found" (see rule 26(5) of the Crown Court Rules 1982).  It is also incumbent on the parties to consider if the case stated as drafted sets out all the relevant facts.  That, unfortunately, was not done in this case, but hopefully in future cases the parties will ensure the case stated does set out all the relevant material.  If it does not, there is a risk that the case will have to be remitted for further facts to be formed.  For the reasons that I have already stated, I for my part would dismiss the appeal.  
7.	LORD JUSTICE BROOKE:  I agree. 
8.	MR SPENCER:  My Lord, I would make an application for costs in this matter.  Regretfully, I have not been provided with any figure as to costs.  
9.	LORD JUSTICE BROOKE:  You are applying?  
10.	MR SPENCER:  My Lord, yes, but regretfully, I cannot put a figure before the court.  
11.	LORD JUSTICE BROOKE:  So what are you asking for?  
12.	MR SPENCER:  I would ask for costs to be taxed, if at all possible.
13.	LORD JUSTICE BROOKE:  Yes, can you resist that application? 
14.	MS HARFORD-BELL:  My Lord, we are legally aided in this matter and the consequences for the appellant -- 
15.	LORD JUSTICE BROOKE:  You have one of these representation orders?  
16.	MS HARFORD-BELL:  My Lord, I believe so, yes.  Well is there material showing your clients means available to us?  
17.	MR SPENCER:  I do not believe so.  
18.	MR JUSTICE SILBER:  I have the application here which is quite old now.  It is a few months old and it shows that he is looking for a job.  That is all we are told as of this point.  It does say that he has some £60,000 worth of equity in his house. 
19.	MS HARFORD-BELL:  My Lord, yes, and there are ongoing family disputes with regard to the contact with the child.  I know there has been no contact since the date of this incident, regretfully, and that the costs with regard to that are obviously increasing, but I have no up-to-date information as to his income at the present time.
20.	LORD JUSTICE BROOKE:  We are in a brave new world with these representation orders and we are under a duty to do something about it if the position is not clear to us.  So your solicitor does not know what his client is up to at the moment?
21.	MS HARFORD-BELL:  May I take instructions?  There has been no contact with Mr McCauliffe recently.  The last information was the information that was contained there, and apparently he is not in the country at the present time.  
22.	LORD JUSTICE BROOKE:  He has been able to afford to go out of the country?  
23.	MS HARFORD-BELL:  I do not know for what reason -- whether it is a bereavement or what.  
24.	LORD JUSTICE BROOKE:  We have power under the regulations to refer the matter to the Legal Services Commission to produce an up-to-date report on his means.  On the material we have at the moment, we do not know whether it is appropriate to make an order or not.  
25.	MR SPENCER:  My Lord, if he is properly entitled to legal aid, I think the proper order is for an order for costs, but that order not to be enforced without the leave of the court.  
26.	LORD JUSTICE BROOKE:  That was the old regime, but whether under the new regime it is as simple as this is really unclear.  The courts are encouraged, because of the colossal overrun in criminal legal aid expenditure, to ascertain what the position is before making no order.  Do I detect a certain lack of enthusiasm from the prosecution for pressing very much further?
27.	MR SPENCER:  My Lord, I think it is going to cost more money for the matter to be remitted back to the Legal Services Commission.
28.	LORD JUSTICE BROOKE:  Very well.  We make no order for costs and no order so far as the representation order is concerned.  Thank you both very much.