England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		22nd October 2004

1. MR JUSTICE GIBBS: This is an appeal by way of case stated brought by Barry John Buckley. He was convicted by the Justices on 23rd January 2004 of the offence of common assault. The particulars of the assault were that, on 8th December 2002 in Chester, he assaulted Amy Louise Hales by beating her, contrary to section 39 of the Criminal Justice Act 1988.
2. The incident from which the charge arose can be quite briefly summarised. Unfortunately, as has been mentioned in the course of counsel's submissions, it was the sort of disgraceful drink-fuelled incident of petty disorder that is all too commonly found on the streets of our cities these days. A group of girls, including Amy Louise Hales, were being noisy and abusive on the streets of Chester. They all appeared to be under the influence of drink. The appellant and his girlfriend, Tanya Marie Cheers, were in the vicinity and it is plain that the abuse began to be directed at Miss Cheers. As the Justices found, the matter went beyond abuse and Miss Cheers became surrounded by the girls and an arm was raised in her direction. As the Justices again found, the appellant genuinely believed that his girlfriend was under threat of some violence.
3. There was a dispute in the course of the contested proceedings as to what the appellant did by way of reaction to the perceived threat. Several of the prosecution witnesses, who consisted at least in part of the girls forming the group that I have described, said that the appellant punched Miss Hales several times to the face. Other witnesses on the appellant's behalf said that there had been no more than a push, and the appellant in particular gave evidence suggestive of a minimal degree of force by way of a push to Miss Hales.
4. The Justices resolved the issue of the degree of force largely in favour of the appellant's case, in that they doubted whether there had been any punches, and resolved the issue on the basis that there had been one push. Their findings of fact were as follows:

"a. Tanya Marie Cheers was in fear, being surrounded by the group of girls who were shouting abuse.

"b. An arm was raised in the direction of Tanya Marie Cheers.

"c. John Barry Buckley was acting in self-defence to protect his girlfriend.

"d. The prosecution witnesses were mistaken in believing that punches were thrown.

"e. The blow thrown by Barry John Buckley connecting with the head and face of Amy Hales was a push with an open hand, not a punch.

"f. The injuries caused by the push namely slight bruising to the left side of the head and mild whiplash showed that the force used was unreasonable."

5. I have observed that the issue as to what the appellant did was resolved largely in favour of his case. However, the Justices, as will be seen from the findings that I have just quoted, did not resolve the matter entirely in the appellant's favour. They found that the force used in administering the push was significant and certainly more than minimal. In coming to that finding, they relied upon medical evidence, which is not seriously challenged in this court, and, as I understand it, was not seriously challenged in the court below.
6. Having made those findings, the statement of case indicates the approach which the magistrates then took. In paragraph 19 onwards of the statement of case they said:

"19. We requested advice from the Legal Adviser on self defence. Having informed Mr Simm and Mr Rogers, we were referred to paragraph 8-23065-Stone's Justices Manual (copy attached)."

7. The passage to which they were referred included a rehearsal of the now classic principle of self-defence upon which juries and other fact-finding Tribunals are directed, namely the principle set out in the Privy Council case of Palmer v R [1971] 55 Cr App Rep 223. The principle is as follows:

"Where there has been an attack so that defence is reasonably necessary, it should be recognised that a person defending himself cannot weight to a nicety the exact measure of necessary defensive action. If a jury is of the opinion that in a moment of unexpected anguish the person attacked did only what he honestly and reasonably thought was necessary, that should be regarded as most potent evidence that only reasonably defensive action was taken."

8. I return now to the Justices' reasoning:

"20. We believe in pushing Amy Hales once with his open hand causing the injuries confirmed by Dr Lister, Barry John Buckley went beyond what he honestly and instinctively thought was necessary. We needed to consider whether the degree of force used was commensurate with the degree of risk which he believed to be created by the threatened attack.

"21. We took account of the gender and size of Barry John Buckley, height approximately six feet and of stocky build and the gender and size of the much smaller victim. We considered the fact that the group of girls surrounding Tanya Cheers were not actually hitting her but using insulting words to put her in fear. We decided such a forceful push was unjustified. Barry John Buckley had moved to stand in front of his girlfriend and had other options available to him to protect her. He could have led her away distancing them from the scene.

"22. We accept that it is difficult to decide exactly how much force is needed but due to the comparison of their sizes, simply placing his arm in the way of her perceived blow would have been sufficient to prevent the assault.

"23. Even if he honestly believed his girlfriend to be under threatened attack from the raised arm, his reaction to forcefully push away the young female, who was much smaller than him, was not commensurate with the degree of risk. We therefore decided that the force used was unreasonable."

9. The question for this court is framed as follows:

"Having accepted that Barry John Buckley was acting in self defence and/or defence of another by using one single push, were we entitled to find that the force used by Barry John Buckley was unreasonable given that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action?"

10. The framing of the question posed is mildly criticised by Mr Medland, but it seems to me that the point of the question is clear. It requires this court to determine whether it was open to the Justices, having regard to their findings on the evidence, to convict the appellant in the face of his self-defence, or his defence of another. Alternatively, whether, if it was open to the Justices to do so, they reached their decision as a result of an error of law and/or irrationally. If they reached their decision irrationally, plainly it would follow that the decision would be perverse.
11. Mr Parry has presented a skeleton argument to the court, which is very helpful, and he has restricted his oral submissions on what is essentially a very short point to the necessary minimum relevant for this court to decide the issue. He submits that, on the basis of the Justices' findings, they must have concluded that some force was necessary. He submits that, once having come to that conclusion on the facts of this case, the degree of force which they found had been used was so minimal that there was no room for them to find that the force was more than reasonable. He further submits that the Justices misdirected themselves in the passage from which I have quoted by reason of their use of the words "he could have led her away distancing them from the scene". He submits that that is an irrelevant consideration having regard to their finding that the use of some force could be justified.
12. In his written argument, he also criticises the Justices for taking account of the fact that the appellant's girlfriend was not actually being hit but was being put in fear by insulting words. He submits that it is inconsistent with their finding of fact that an arm was raised in the direction of the appellant's girlfriend.
13. In response, Mr Medland submits that the force used was in fact not the minimum that was conceivable. He points to the Justices' reasoning as disclosing at least one example of force which might have been used of significantly lesser degree than that used by the appellant, namely by placing his arm in the way of a perceived blow. He submits that the use of other forms of force to a lesser degree than that used in this instance can also be imagined, namely restraining the other girl with his arm, physically blocking her, and so forth. He submits that the reference to the possibility of leading the girlfriend from the scene is a perfectly permissible consideration in the overall context of the degree of force required to be used. For those reasons, he submits that the decision to which the Justices came was open to them and the route which they took to it was the correct one.
14. My conclusions are as follows. It is, of course, not for this court to substitute itself or its own views for those of the fact-finding Tribunal. The Justices heard all the evidence, saw the witnesses, and were in the best position to assess the appropriate decision in this case. Provided that the decision was open to them, and that there was no error in law, this court will not interfere.
15. In my judgment, whilst the force used in this case was not as great as that alleged by the prosecution witnesses, according to the Justices' findings, they were well entitled to find that significant force was used. The fact that it was administered by an open hand as opposed to a clenched fist is but one of the considerations that the Justices entertained. The other considerations were the relative size of the appellant and the victim, their gender, and the amount of injury caused by the blow. They were, in my judgment, entitled to be satisfied that a forceful blow by way of a push, which caused the injuries in question, went beyond reasonable self-defence. They properly directed themselves as to the test in Palmer, as indeed Mr Parry has conceded that they did. His real point is whether they reached a conclusion that was open to them, having directed themselves about that test. In my judgment, that conclusion was open to them. Accordingly, this appeal must be dismissed.
16. MR MEDLAND: My Lord, in the court below the appellant was fined £100 and ordered to pay £100 costs. I raise obviously just the question of costs at this stage. I am invited to ask your Lordship to consider a contribution towards the costs of the respondent in this matter. The figure that I put before the court for consideration is £860.
17. MR JUSTICE GIBBS: Mr Parry, obviously these appeals are expensive. They are more expensive than the summary proceedings, but what do you say about it?
18. MR PARRY: My Lord, yes. The only point that I can realistically advance in respect of the question of costs on the appeal is that Mr Buckley does have the benefit of a representation order granted by Collins J. He is legally aided, therefore.
19. MR JUSTICE GIBBS: Well, is there a contribution?
20. MR PARRY: I am not aware of one, no.
21. MR JUSTICE GIBBS: Is there any way that we can find that out or not, Mr Parry?
22. MR PARRY: I would have thought, my Lord, that it would be -- I would have thought that if a contribution was ordered --
23. MR JUSTICE GIBBS: It would be on the face of the order.
24. MR PARRY: I would have thought so, yes. These appeals are governed by the civil public funding certificates as opposed to what you would find in the lower court, certainly in respect of ...
25. MR JUSTICE GIBBS: Do you have a copy of the order?
26. MR PARRY: My Lord, I do, yes. I have a copy of Collins J's order of 25th April and, further, the amendment of 5th July.
27. MR JUSTICE GIBBS: Well, it is not apparent that there is any.
28. MR PARRY: It is certainly my experience before, at case stated appeals, that, where an appellant has been publicly funded, there was no order for costs save detailed assessment of the appellant's costs.
29. MR JUSTICE GIBBS: I think you are probably right. But that is not always the outcome in general civil proceedings.
30. MR PARRY: Indeed.
31. MR JUSTICE GIBBS: I will make no order as to costs, unless, Mr Medland, you would like to persuade me to the contrary?
32. MR MEDLAND: My Lord, I have applied once, it is not going to get better by repetition.
33. MR JUSTICE GIBBS: I think the alternative is to make what is sometimes described as a lottery order, which is to say that you shall have an order for costs, but it is not to be enforced.
34. MR MEDLAND: Well, I would not be asking my Lord for that.
35. MR JUSTICE GIBBS: Very well. No order as to costs.
36. MR PARRY: My Lord, can I ask for detailed assessment of the appellant's costs?
37. MR JUSTICE GIBBS: Yes, you can.
38. MR PARRY: Thank you.