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
		5th October 2005

1. LORD JUSTICE SCOTT BAKER: Rafferty J will give the first judgment.
2. MRS JUSTICE RAFFERTY: In the Youth Court sitting at Stratford, D was, on 30th November 2005, convicted of common assault, with reasons, criticised as inadequate, given. On 28th January 2005, an application was made that the Justices should state a case. The Justices' refusal gives rise to limited permission from Crane J.
3. The facts can be briefly stated. D, a juvenile, had been charged with common assault, with handling and with robbery as part of a joint enterprise. It was said, before she was acquitted of the robbery charge, that she was part of a joint enterprise of four youngsters who had set upon the victim. The Crown relied upon the evidence of two witnesses, the victim "K" and an eyewitness "A", each of whom spoke of an attack upon K by a quartet.
4. When police investigated, and when the case was heard, those four were referred to by numbers: girl 1, girl 2, girl 3 and girl 4. At the close of the case for the Crown a submission of no case to answer, its basis being that there was not evidence to show that girl 4 was involved in any violence, was rejected. It was suggested that she was present but not participating. The Justices refused the application.
5. D did not give evidence but her co-accused Z did, claiming to have intervened so as to protect G, under attack from the two witnesses for the Crown. Z was found guilty of common assault. Giving reasons the Justices said that they found the assault to have been begun by Z who pulled back the hood of K and then punched and kicked her. They relied on the victim and AF, the eyewitness, and on the evidence of Z.
6. Mr Bowden criticises the approach of the Justices in reaching their decision to reject a submission of no case to answer since they must have relied upon inadmissible hearsay and inappropriately have treated the evidence of Z in a way which no reasonable bench could have done. He enlarges upon that latter point by suggesting that justices purported to accept and reject in part, whereas-context being all-on these facts they could only either reject or accept.
7. The inadmissible hearsay is suggested as derived from a time subsequent to the event when a witness for the Crown said that the second girl had become known to her by the name "G". On a review of the interviews conducted by video with the complainant and an eyewitness, of the conduct of the case in so far as it is available to us in written form, and to an extent in the reply of the Justices, there seems to me at least to be an unhappy elision of the Christian name, G, with girl 2. That may be by the by in the larger context.
8. After the close of the case for the Crown Z was to say that D and the victim K began a physical contact and she then played her own part per pro D.
9. The criticism made by Mr Bowden that the Justices were not entitled, on these facts, to select part of what she said and to reject others, is based on her subsequent conviction. That the Justices elected to accept the evidence of K meant that they were in logic excluded from accepting any part of the account of Z of G being the first attacked, and must therefore have relied on the inadmissible hearsay.
10. Mr Bowden seeks to fortify his submissions on the position at the close of the case for the Crown by relying on the argument as to inadmissible hearsay and the evidence of Z so as to make, more formidably, the contention for which he argues. Speaking for myself, it does not seem unreasonable so to do.
11. Mr Benson, putting the position of the Crown Prosecution Service, suggests that the proper approach is to ask whether there were before the Justices any admissible evidence of participation, as opposed to mere presence, on the part of D. If the answer to that be in the affirmative then, relying on the familiar authority of Mildenhall Magistrates, the question is determinative and the Justices are entitled to refuse to state a case. Was there any admissible evidence that G was girl 2?
12. The account given in a video recorded interview by the victim, K, includes, in part, the following:

"[Officer] Who punched you?

[The Victim] ... I don't think it was No 4. I think it was 1, 2 and 3. Cos they're the most violent ones out of all of them that were there. Erm, No. 4 was more like a joker type of thing, just there for it, to see it."

13. Further:

[Officer] ...You say there's Girl 1, Girl 2 and Girl 3 were actively attacking you, is that what you are saying?

[The Victim] Yeah.

...

[K] I think it was Girl 2 that came up to me because I remember seeing she had something shiny on the nose.

[Officer] Yeah.

[The Victim] She came up to me and started, cos she had my keys, started bashing me across the head with my keys saying why did I punch her friend and everything. And then, ... she grabbed my hair because I was ignoring her. She grabbed my hair and started, erm, hitting me with the keys.

[Officer] Who was?

[The Victim] Girl 2."

14. Cross-referenced with that might helpfully be the video recorded account given by the eyewitness, AF, which, in part, reads as follows, once transcribed.

[AF]. Basically, erm, that's when we went round the corner. And then girl No. 2, which her, her name is [G] cos she did the second most damage ... [the origin of the inadmissible hearsay criticism]

[Officer] Right.

[AF]... she's the one that grabbed [K's] phone. Right, ok. Erm, how did you know her name? I heard it after the incident as well.

Then further:

" [0fficer] ... then ...the second girl then, girl two, [G], erm, can you just describe what she actually did? Did she say anything to K [the victim]?

[AF] Yeah, she's the one that said ... why you trying to punch my friend for? And started dashing the keys at her head.

and further:

"[Officer] So, so it could only have been the both, [Z] or [G] is what you're saying?

[AF] I'm not sure, I think the possibility, it's more likely that it was either them two cos they did more, more harm."

15. The conclusion which counsel invites us to reach is that that strain of evidence established that girl 2 was this applicant. If support were needed he relies on two further matters, that the victim spoke of girl 2 having as a nose piercing on the left and that when she came to court the applicant appeared to the Justices to be sporting a nose stud on the right of her nostril. For my part that latter point would make little impact on my reasoning, but does not in any way contradict the position for which Mr Benson contends.
16. Far more cogent, however, is what the eyewitness was later to say in her video recorded interview, which reads, in part, as follows:

"[officer] ... was [G] involved in the fight as well then was she? [Throughout I have warned myself that [G] should not be elided into girl 2].

[AF]... she was kicking...

...

[Officer] ... can you describe that third girl then?

[AF]... she was quite tall, she was probably a bit taller than me.

[Officer] Yeah.

[AF] She's light, light skinned ... quite big...,

[Officer] Yeah.

[AF] ... wearing a red suit thing.

[Officer] ... just back tracking a little bit, can you remember what [G]was wearing?

[AF] I think she was wearing a black NIKE hoodie, not like a tight, yeah, tight hoodie, yeah.

[Officer] Yeah.

[AF] But it was blackish but like a velvet kind of material."

17. Cross-referencing that to the response of the Justices, they recited that upon arrest G had provided to investigating officers the clothing she admitted she was wearing at the time of the incident and which included a black zip-up top with a motif. Although not described as a "hoodie" top, nevertheless it is black. In the same vein in which, for my part, I view her presence in court with a nose stud, the further it goes is not in any way to detract from the position for which the counsel for the Crown Prosecution Service contends.
18. The justices reasoned that only G was wearing a black top as follows: having eliminated girl 1 as Z and the only one wearing a cap, girl 3 as light skinned and in a red suit, and girl 4 with a suit similar to girl 3 and wearing a pink rosary, they go on:

"Therefore we were able to infer that girls 3 & 4 were wearing red clothing, ZY (the only one wearing the cap) was known to both [the victim] & AF and as a result we were of the view the other girl in the group was GD (the only one wearing a black top), who AF had clearly seen taking part in the assault."

19. Counsel for the claimant attacks that passage as containing within it an error, in that there is no evidence that girls 3 and 4 were wearing red garments. More accurately put, there was no evidence within the presentation of the case for the Crown that each was wearing red.
20. On behalf of the Crown Prosecution Service, however, counsel submits that that is reasoning based on sound analysis of the evidence and that only D was wearing a black top. Whether it be a hoodie or not is neither here nor there.
21. If he be right about the exclusivity to girl 2 of a black top, for my part I would say there was sufficient evidence, at the close of the case for the Crown, for matters to proceed and that the Justices were right in their decision. I have considered whether the "red suiting" of girl 4 and girl 3 takes the matter any further. As to girl 4, the evidence at the close of the case for the Crown was that "she was wearing something a bit similar to girl 3", whom we know to have been in a red suit. Although there is, as I have already said, no clear evidence of "a bit similar" meaning "a bit similar in colour", nothing about description detracts from the position for which counsel for the Crown contends.
22. For my part, therefore, by this simple route, I would say it was open to the Justices to conclude that given that girl 4 was not involved, and girl 3 was in red, they were entitled to deduce that D was in black. That being so, there was a case for her to answer. Whether it were or were not the strongest case ever to reach the courts is neither here nor there. Her submission was bound to fail.
23. That being so, the Justices were correct to decline to state a case, for the reasons I have given and there is no need to proceed to consider the Sunworld procedural points.
24. I regard the limited permission given by Crane J as encompassing the arguments advanced by counsel for the claimant. I regard his granting of limited permission as focusing the spotlight on evidence before the close of the case for the Crown and thus would agree that the Justices were entitled to refuse to state a case.
25. LORD JUSTICE SCOTT BAKER: I agree. The Justices were entitled not to state a case. Accordingly the application for judicial review is refused. As the claimant is a child within the terms of the Children and Young Persons Act 1933 it seems to me that an order should be made under section 39 of that Act prohibiting publication of anything likely to lead to her identification. Do you agree with that Mr Bowden and Mr Benson?
26. MR BOWDEN: Yes.
27. MR BENSON: Yes.
28. LORD JUSTICE SCOTT BAKER: Very well. We will make that order then. Thank you very much for your assistance.