England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		Thursday, 6th October 2005

1. LORD JUSTICE KEENE: This is an appeal by way of case stated from the decision of the West Yorkshire Justices sitting at Huddersfield on 29th April 2005. The Justices on that occasion dismissed an information laid by the appellant, the West Yorkshire Probation Board, against the respondent alleging that he had failed on two occasions to attend probation appointments as required by a community rehabilitation order (CRO) made by the Huddersfield Magistrates' Court on 12th February 2004.
2. At the hearing on 29th April 2005 the prosecution was represented by Miss Worsley. The course taken at the hearing is indicated in the case stated which, at paragraphs 4 and 5, records as follows:

"4... The prosecution case was not disputed and it was simply read out by Miss Worsley and we found the following facts:

A. A person who identified himself as Charles Edward Boulter, DOB 20/2/75 of 34 Market Street, Paddock, Huddersfield, was made subject to a CRO for 18 months on 12th February 2004 by Huddersfield Magistrates' Court.

b. This same person having been required to attend probation appointments on 31st March 2004 and 23rd June 2004 in accordance with this CRO, failed to do so.

5. These facts were not disputed by the Respondent and the appellant closed their case."

3. The respondent was not present on that occasion but he was legally represented. The respondent had been summoned to appear on an earlier occasion and on his failure to do so he had been arrested on a warrant. When then brought before the Magistrates' Court, on 10th February 2005, he denied the alleged breaches. The matter was then adjourned.
4. At the hearing, on 29th April 2005, his solicitor called no evidence but submitted that the prosecution had failed to prove, to the criminal standard, one of the essential ingredients of the alleged breaches of the CRO, namely the identity of the respondent. In short, it was argued that the prosecution had not established that the respondent was the same person who had been made subject to the CRO and who had breached it. Relying on certain authority, to which I shall come, the defence contended that the fact that the name, address and date of birth were identical was not enough to prove the essential ingredient of identity. Moreover, no adverse inference could be drawn under section 35 of the Criminal Justice and Public Order Act 1994 because the respondent was not in court.
5. The Justices found the following, as set out in paragraph 17 of the case stated, subparagraphs (a) to (d):

"a. The name, date of birth and address of the defendant summoned to court for this breach were exactly the same as those of the person made subject to the CRO on 12th February 2004. The name was not common and as such, this gave rise to a case to answer.

b. The defendant was not in attendance and so it would not be possible to make any adverse inference under section 35 Criminal Justice and Public Order Act 1994.

c. The coincidence of name, date of birth and address alone were insufficient to prove identity beyond reasonable doubt.

d. The probation service had failed to prove an essential element of this breach, namely identity."

6. It appears from the case stated that the proposition set out in paragraph 17(c), to which I have just referred, embodied legal advice given to the magistrates by their legal adviser. Consequently they acquitted the respondent. The legal adviser and that advice are dealt with in paragraph 15 of the case which states:

"Our Legal Adviser emphasised that following this case law, a coincidence of names, dates of birth and addresses alone would be insufficient to prove identity beyond all reasonable doubt."

7. The questions as posed at the end of the case stated are as follows:

"Whether the West Yorkshire Probation Board are bound by the terms of Section 73 of the Police and Criminal Evidence Act 1974? If so, is the burden of proof for the West Yorkshire Probation Board to prove beyond reasonable doubt that the identify of the defendant to the breach action is the same as was made subject to the order, and the same as the Probation Service has attempted to supervise and who has now failed to attend, ie, the same at three points?"

Section 73(1) of the Police and Criminal Evidence Act 1984 deals with proving convictions and acquittals. It provides:

"Where in any proceedings the fact that a person has in the United Kingdom been convicted or acquitted of an offence otherwise than by a Service court is admissible in evidence, it may be proved by producing a certificate of conviction or, as the case may be, of acquittal relating to that offence, and proving that the person named in the certificate as having been convicted or acquitted of the offence is the person whose conviction or acquittal of the offence is to be proved."

8. It is the last part of that subsection which the magistrates presumably had in mind when formulating the questions for this court, namely the reference to proving that the person named in the certificate, as having been convicted or acquitted, is the person the court is concerned with. It does not, in fact, seem to me to advance matters greatly. Whenever someone is being charged with the breach of a community order it is inescapable that it has to be proved by some method that he is the person who was made the subject of that order. It further has to be proved that he has failed to comply with its terms.
9. The relevant statutory provision in the present case is to be found in Schedule 3 to the Powers of Criminal Courts (Sentencing) Act 2000, paragraph 4, which states:

"If it is proved to the satisfaction of a magistrates' court before which an offender appears or is brought under paragraph 3 above that he has failed without reasonable excuse to comply with any of the requirements of the relevant order, the court may deal with him in respect of the failure in any one of the following ways."

10. Then those ways are set out. Those ways include dealing with him in any way in which the court could deal with him if he had just been convicted by the court of the offence.
11. The first point raised by the appellant today is that the Justices were wrong to require proof to the criminal standard that the respondent was the person who had breached the CRO. For the appellant Miss Robinson relies on the well-known Strasbourg case of Engel v Netherlands (No 1) 1 EHRR 647 in support of her proposition that breaches of community orders are not criminal offences. She draws attention to the fact that the wording of paragraph 4 of Schedule 3, which I have just set out, merely refers to it being proved: "to the satisfaction of a magistrates' court" and there is no reference to it having to be proved beyond reasonable doubt or so that the court is sure. It is argued that such wording does not indicate proof to the criminal standard.
12. The contention is that the breach of a community penalty is in its nature simply non-compliance with the court order. The purpose of the breach proceedings is enforcement of the original punishment and the court is concerned simply with ensuring that its own order is effective rather than with a newer offence. Furthermore, it is argued that the most significant sanction for breach is revocation and re-sentence for the original offence. That is not a punishment for the breach, but simply a consequence of what has happened. The punishment is for the original offence which led to the making of the CRO. Miss Robinson points out that one of the options available to the court where a breach is established is simply to let the order continue.
13. Finally, she refers to the House of Lords decision in R (West) v Parole Board and R (Smith) v Parole Board (No 2) [2005] UKHL 1, where their Lordships rejected an argument that a prisoner whose release on licence was being revoked was facing a criminal charge at the Parole Board hearing. Relying on all these points it is submitted that proof that the defendant before the court has breached a CRO only has to be on the balance of probabilities, the normal civil standard.
14. I cannot accept that proposition. This first issue does not, in my view, turn on whether such a defendant faces a criminal charge or new criminal charge, nor with whether or not he is being sentenced for the original offence. It is after all well-established that the sentencing process itself will, where facts are in dispute, require proof to the criminal standard. Thus, where a Newton hearing is conducted by a judge after a plea of guilty in order to resolve a dispute about the facts of the offence, the judge must direct himself in accordance with the normal criminal standard of proof. (See amongst a number of decisions McGrath and Casey 5 Cr App R (s) 460.)
15. There are, as I have indicated, a number of authorities to the same effect. So the fact that a person accused of breaching a CRO is facing the prospect of being resentenced does not take the proceedings, in my judgment, outside the normal criminal process. Indeed, that is clear from the criminal court decision referred to by Mr Elvidge, who appears today for the respondent, in R v Gainsborough Justices, ex parte Green (1984) 78 Cr App R 9 where the court was dealing with an alleged breach of a community service order. It was held there that formal proof of breach was required and that the ordinary procedural rules, as to the presentation of the prosecution's case, applied.
16. It is true that neither that case nor Schedule 3 of paragraph 4 of the 2000 Act expressly refers to proof "beyond a reasonable doubt" or some such similar phrase. In my view that was because the draftsman assumed that in criminal proceedings before a magistrates' court it was enough to require the bench "to be satisfied" as to the alleged breach and that such satisfaction would have to be to the normal criminal standard.
17. The Parole Board cases provide little assistance on this issue. As Lord Bingham makes clear, the Parole Board is concerned not with the imposition of punishment but with assessing the risk to the public (see paragraph 26 of his speech in the West and Smith case). It is, therefore, an entirely different situation. Moreover, the Parole Board is dealing in such cases with someone who has already been sentenced to a term of imprisonment covering a period of possible recall. That is quite different from a situation of a person charged with breaching a community order. Such a person faces the possibility that if the breach is proved he may be sentenced to a term of imprisonment for the first time in relation to that offence, instead of serving his sentence in the community. That is a sharp potential increase in punishment and as a matter of principle it should not occur unless the factual basis for it has been proved to the criminal standard. I therefore would reject this first ground of appeal.
18. The second issue concerns how the prosecution is to prove identity in cases such as this to that standard. As the facts set out already reveal, there was no dispute that the same individual, in this present case, had both been made the subject of a CRO and had breached it. The issue raised, after the close of the prosecution case, was simply whether the prosecution had proved that this respondent was that individual.
19. What seems to have been very influential in the minds of the Justices was a decision of this court in the case of R v Derwentside Justices, ex-parte Heaviside [1996] RTR 384. That concerned a conviction for driving while disqualified where it was clearly necessary for the Crown to establish that the defendant was, at the time, a disqualified driver. The court register showed that a person with the same name and date of birth as the defendant had been disqualified. There was some degree of coincidence of address to the extent that there was an address on the court register which corresponded to one of the addresses at which the applicant apparently had lived at at some time. McKinnon J, who gave the leading judgment with which McCowan LJ agreed, went on to say this:

"As far as I am aware, it has never been accepted that the mere matching of the personal details, whether the name, address or date of birth of a defendant, with those upon a certificate of conviction is sufficient to establish or identify the defendant as the person earlier convicted. It may have been the defendant; but, to avoid obvious mistakes being made, strict proof is required. That is provided by evidence in one of the three ways I have described."

20. Those three ways, as described by the learned judge, were by formal admission under section 10 of the Criminal Justice Act 1967, fingerprint evidence, or the evidence of a witness who was in court on the occasion of the earlier conviction. That decision in Heaviside has since been commented upon by this court in the case of Olakunori v the Director of Public Prosecutions [1998] CO/1814/98 (unreported) 8th July 1998. There the judgment of the court was given by Thomas J (as he then was) the other member of the court being the Lord Chief Justice, Lord Bingham of Cornhill. Thomas J said in terms that the three ways of proving this ingredient, as described in the Heaviside case, were not exhaustive but merely examples. In subsequent passages of his judgment he went on to say this:

"In each case, it is plainly for the prosecution to adduce evidence upon which the justices can be sure that the person before the court whose conviction has to be proved is the person named in the certificate of conviction or other document evidencing the conviction also before the court. It is not of course possible to set out what in every case can amount to sufficient evidence.

... the prosecution will at the close of their case usually be able to establish a case to answer by proof of the coincidence of the name and date of birth of the person convicted and the name and date of birth of the defendant. This might not always be the position, as for example where the names are very common and where there is some material to indicate the possibility of a mistake.

If the coincidence of names and dates of birth is sufficient to establish a case to answer, and then there is no evidence from the defendant, the justices will be able to take into account the provisions of section 35 of the Criminal Justice and Public Order Act 1994, provided that it is in all the circumstances fair for them to do so. In saying that we, of course, emphasise that silence without more proves nothing. At the conclusion of the evidence the justices will be entitled to find -- but it is a matter entirely for them on the facts of each case -- that the identity has been proved. There will be no danger of an obvious mistake in such a case, as the defendant will have decided not to adduce evidence of the possibility of any such mistake.

On the other hand, if all the prosecution have relied on is the coincidence of names and dates of birth, and the defendant gives evidence, then it may well be that, in the light of all the evidence, the justices may be left in doubt on the issue of identity and in such circumstances would not convict. It would be a question of fact in each case."

21. In the light of that decision Miss Robinson submits that the Justices, in the present case, adopted the wrong approach in holding that the coincidence of names, dates of birth and addresses was insufficient to prove identity to the requisite standard. She emphasises that there was no evidence to cast doubt on the respondent being the person who was subject to the order. She asks, no doubt rhetorically: how could Charles Edward Boulter, DOB 20/2/1975/, of 34 Market Street, Paddock, Huddersfield who was summoned for the breach, be a different Charles Edward Bolter from the one made subject to the order and the one that the probation service had attempted to supervise?
22. On behalf of the respondent Mr Elvidge argues, relying upon the Heaviside case, that the mere matching of personal details, whether the name, address or date of birth of the defendant, with those upon a certificate of conviction, is not sufficient to establish or identify the defendant as the person earlier convicted. He seeks to distinguish the facts of the Olakunori case on the basis that the defendant there chose not to give evidence and that there was also evidence that the defendant had told lies about his identity. It is submitted that it would be unfair to draw an adverse inference from the respondent's failure to give evidence when he was not present, when there is no evidence that the court were satisfied that he was aware that such an inference could be drawn when he chose not to give evidence and when he had received no warning.
23. Mr Elvidge contends that the Justices were correctly advised as to the law applicable and that their approach to this issue was sound. He has taken us also to the case of R (Kingsnorth and Denny) v the Director of Public Prosecutions [2003] EWHC 768 Admin, a decision of Mitchell J, sitting alone in the Administrative Court, where on this point Heaviside appears to have been followed. Consequently it is submitted, on behalf of the respondent, that the Justices were right in their approach and that the appeal should be dismissed.
24. I observe that the Olakunori decision does not appear to have been cited to Mitchell J in R (Kingsnorth and Denny) v DPP. The learned judge there cites and relies heavily on this issue in what was said on Heaviside. Given the fact that Olakunori had not been drawn to the court's attention, it seems to me that the Kingsnorth and Denny case really adds very little to the legal picture.
25. For my part I say at once that I am satisfied that the Justices in this case did adopt the wrong approach as a matter of law on this issue. I do not regard their interpretation of the Heaviside decision as being correct, if, and in so far as, they seem to have read it as saying that a coincidence of name, address, and date of birth is, as a matter of law, insufficient to prove that the person before them is the person previously convicted. There is no such legal principle. If that were the true meaning of the Heaviside case, then I prefer the approach of this court in Olakunori, but I do observe that in the Heaviside case, in the passage which is relied upon by the respondent, McKinnon J refers to the matching of personal details in a disjunctive sense because he speaks about the names, addresses or date of birth.
26. In any event, whether the evidence is such as to prove, to the criminal standard, that the defendant is the person in question depends upon all the facts of the case. One consideration, for example, may well be whether the name is a common one. Here the Justices found that it was not. That reduced the risk of any error.
27. But the important point is this: one of the most common ways of proving a necessary ingredient of an offence, or of a breach of order, is by inference from other facts which have been established. This is a process wholly independent of and long pre-dating the narrower topic of inferences from silence under section 35 of the Criminal Justice and Public Order Act 1994. When magistrates have evidence that the person before them has the same name, address and date of birth as the person previously convicted, it is open to them to draw an inference that he is the same person. Whether that inference is to be drawn in any particular case depends on all the facts of that case, which is why I say that it is open to them to draw such an inference rather than that they are obliged to.
28. However, in many cases, where there is such a coincidence of all three factors, one would expect such an inference to be drawn by the Justices in the absence of any further facts which cast doubt on such an inference. Here it seems that the Justices were prepared to draw such an inference in so far as they held that there was a case to answer, but, in any event, the evidence in this case actually went beyond the coincidence of name, address and date of birth. There was the finding, to which I have already referred, that the name was not common. There was no evidence whatsoever to cast doubt on the respondent being that person, no evidence in rebuttal being called on his behalf and no evidence that he had ever suggested that he was not the personal alleged.
29. In all those circumstances I am satisfied that no reasonable Magistrate court could have concluded that the prosecution had failed to prove this ingredient. For my part I would allow this appeal and remit the matter to the Magistrates' Court with a direction to convict the respondent.
30. MR JUSTICE POOLE: I agree. I have not found the question of the appropriate standard of proof a particularly easy one, but have in the event, like my Lord, concluded that such proceedings as these before the justices, in the absence of clear statutory guidance to the contrary, should be regarded as criminal in character. Their deliberations are therefore to be governed according to a criminal standard of proof.
31. That said I have no hesitation on the facts here in concluding that any reasonable Tribunal should have convicted the respondent of these breaches. Thomas J, as he then was, made clear in Olakunori that each case will turn on its own facts. The facts here included , first, exact correspondence of the first name, second name, third name, number and name of street, day, month and year of birth, and, second, the fact that the surname was not particularly common. Even if it had been one that was more common I would have reached the same conclusion, given the extreme unlikelihood of there being two men of precisely the same names, however common, with precisely the same day, month and year of birth residing at precisely the same address during substantially the same period of time. Thirdly, there is evidence that the summons for the breaches was sent to that address. Fourthly, there is the fact that neither on his appearance at court following his arrest on warrant nor at any other time had the respondent raised any suggestion of mistaken identity.
32. It is nothing to the point that the Justices here, unlike the court in Olakunori, were denied recourse to the specific inference available under section 35 of the Criminal Justice and Public Order Act 1994 by reason of the respondent's absence from court.
33. I note the presence of the words "address or date of birth" in the final paragraph at page 5 of the report in Heaviside and I too take it to be disjunctive. But, in any event, Heaviside should not, in my judgment, be taken as authority that in every case of this kind, where a prosecuting authority comes to court armed with the name, address, date of birth of a defendant, but without fingerprints, eyewitness evidence, or a section 35 inference, it should be taken to have failed to prove the identity of the defendant.
34. The respondent, as the Justices found on the facts here, had a case to answer. He did absolutely nothing to meet that case. There was no reason to suppose that on the question of identity he could meet it. On the facts here any reasonable Tribunal should have convicted.
35. LORD JUSTICE KEENE: Are there any applications?
36. MISS ROBINSON: I do not think it is appropriate in the circumstances.
37. MR ELVIDGE: Could I have a direction with regard to public funding in this case?
38. LORD JUSTICE KEENE: Yes, certainly.
39. MR ELVIDGE: I am obliged.
40. MISS ROBINSON: There is one point: in your Lordship's judgment this defendant was not in fact on bail. He had simply been released.
41. LORD JUSTICE KEENE: Is that right? I thought I had gleaned that from the case stated. If you tell me that I will correct it in due course.
42. MISS ROBINSON: It was dealt with on page 9.
43. LORD JUSTICE KEENE: He was not put on bail. You are quite right. I will make sure that is corrected when I approve the transcript. Indeed, I suspect that the shorthand writer will correct it by herself before it even reaches me.
44. MR ELVIDGE: Might I mention that your Lordship gave a citation for the case of Olakunori, which may be wrong. I think your Lordship referred to it as a 2004 citation. I am not sure that is correct.
45. LORD JUSTICE KEENE: Lets us check that before we all part. It is 1998. Let us get the reference as accurate as we can for the benefit of the shorthand writer and those who may be reading this afterwards. What is the best reference we have for it?
46. MR ELVIDGE: I have a reference in my skeleton argument of [1998] EWHC 722.
47. LORD JUSTICE KEENE: Yes, [1998] EWHC 722 Admin it will be. Do you agree with that Miss Robinson?
48. MISS ROBINSON: Yes, that is the only reference I have.
49. LORD JUSTICE KEENE: The trouble is the transcript we have of it, certainly in the appellant's bundle does not give us that reference. Let us have a look and see whether the respondent's bundle helps.
50. MR ELVIDGE: It helps in misleading.
51. LORD JUSTICE KEENE: I am looking at your bundle of the transcript of Olakunori. It gives the date, of course. It does not give the reference you give. My recollection is that the neutral citation method had not come in 1998.
52. MR ELVIDGE: The reference we have been using, and I have just referred to, appears at page 28 of the bundle of the case stated. It appears to be the reference that the magistrates gave.
53. LORD JUSTICE KEENE: I do not think in 1998 we had neutral citations of the sort that you were just giving to us. I think what we better do is we will give the reference, such as it is, that we have on the transcript. Shorthand writer when you refer in my judgment, for the first time, to Olakunori it is [1998] CO/1814/98 (unreported), judgment dated 8th July 1998. Is that not the best we can do?
54. MR ELVIDGE: I agree. I see another document which shows those instructing me regard it as a transcript. They do not use that. I think your Lordship is right.
55. LORD JUSTICE KEENE: Are there any more complications of that kind anyone wishes to raise? Thank you for raising that any way. I am glad we managed to sort that out. It may prevent people from being misled in the future. Particularly if they try to track the case down. Thank you both very much indeed.