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
		3rd May 2006

1. LORD JUSTICE SCOTT BAKER: The applicant is a minor now aged 17. He moves for judicial review, permission having been granted on paper by Sullivan J. In July 2004 he was charged with assault occasioning actual bodily harm on Barry Cox. He was then aged 15. We make an order under section 39 of the Children and Young Person's Act 1933.
2. On 23rd July of 2004 proceedings in the South Staffordshire Youth Court sitting at Tamworth were adjourned to enable his solicitors to take instructions with a view to entering a plea to the charge. On 13th August 2004 there was a further adjournment because the prosecution wished to consider increasing the allegation in gravity to section 20. On 3rd September 2004, the applicant pleaded not guilty to assault occasioning actual bodily harm. Nothing further appears to have been done at that stage with regard to uprating the charge.
3. After a number of further adjournments, a trial date was fixed for February 2005. On 21st January 2005 a pre-trial review was adjourned for seven days and on 28th January the pre-trial review was adjourned again, on this occasion because the Crown Prosecution Service had no papers at court. On 4th February the Crown Prosecution Service told the court that they were reconsidering the charges with a view to a Section 18 charge, grievous bodily harm with intent, or, more probably, as they put it, a charge under section 20.
4. The trial date was vacated for the prosecution to serve medical evidence. The medical evidence was apparently served but on 11th February the prosecution had a query over it and the case was adjourned until 18th February. On 18th February the medical evidence was agreed but the Crown Prosecution Service said that they wished to update it. A charge of unlawful wounding or grievous bodily harm under section 20 was laid against the applicant. No evidence was offered against him on the section 47 assault and the Justices formally dismissed that charge.
5. We do not have adequate information as to the full circumstances of this case. On 4th April of this year the applicant's solicitors asked the Crown Prosecution Service in writing for the prosecution papers. In particular, there was sought a typed copy of the statement made by the injured party and the prosecution's case summary. Despite that request (as long ago as 4th April) and efforts to obtain the relevant information since, the Crown Prosecution Service have provided nothing.
6. Mr Rimmer, who has appeared today before us but who did not appear at any stage in the court below, says that as far as he can elicit, the position appears to be as follows. The allegation of assault occasioning actual bodily harm related to soft tissue injuries, very probably more than one, and accordingly the information was laid in the ordinary way alleging actual bodily harm, namely all the harm arising out of the assault on 3rd July on the complainant, Barry Cox. In February of the following year or thereabouts, it appears to have become clear to the Crown that one at least of the injuries, namely the injury to the victim's eye, was more serious than had previously been appreciated because it was said that the medical evidence showed that the complainant suffered a detached retina and some loss of peripheral vision. It seems that this was the basis for, first of all, consideration of a section 18 charge and, in the event, the addition of the section 20 GBH.
7. It seems to me that the Crown Prosecution Service made a fatal error in February 2005 in offering no evidence for the lesser offence of section 47 and inviting the Justices to dismiss the charge. One of two things should have happened. Either the Crown Prosecution Service should have applied for the charge to be amended so as to be uprated to section 20, or alternatively, the section 47 allegation should have been adjourned. Had either of those things been done, the present difficulties would not have arisen.
8. The April trial date was again adjourned, on this occasion because the applicant had examinations. The trial date was eventually fixed for 15th September of last year with a time estimate of several days. The trial duly took place in September. It is a little difficult to see why a relatively simple case of this kind required three days to be set aside for the hearing, but it may be that there is information in the case summary that the prosecution have failed to provide that would give some explanation for that. At any rate, on 15th September four witnesses gave evidence for the prosecution. They were the complainant, his daughter, his brother and an independent witness, a Mr Singh, who was a shopkeeper who was close to the incident. Those witnesses having given evidence, the prosecutor then asked for a short adjournment because it was his view that the evidence did not establish that the applicant was the perpetrator of the eye injury. There was then a discussion between the prosecution lawyer and the defence lawyer. We are not privy to the contents of that discussion because the prosecution have not appeared in this court and fresh counsel in the form of Mr Rimmer now appears for the applicant.
9. At any rate, what happened was that the prosecution offered not to proceed with the section 20 allegation if the applicant pleaded guilty to assault occasioning actual bodily harm under section 47. He did so and a basis of plea was, we understand, tendered to the Youth Court. Unfortunately, no copy of that basis of plea is available for us today and we are unaware of its contents.
10. Judicial review is sought quashing the decision of the justices to allow the Crown to proceed with the allegation of assault occasioning actual bodily harm because, so it is submitted, the allegation had already been dismissed and the applicant acquitted of the offence.
11. It appears from such information as we have that the prosecution considered continuing with the section 20 allegation, notwithstanding that the evidence did not identify the applicant as the perpetrator of the eye injury, on the basis that a collection of minor injuries could be said to amount together to grievous bodily harm. Be that as it may, it seems to us that if the Crown was unable to substantiate that the applicant was the perpetrator of the eye injury, that would be the end of the case against him in respect of that injury, whatever the nature of the injury. In those circumstances, it seems to us that the plain inference from the material that we have is that the applicant was being invited to plead guilty to assault occasioning actual bodily harm, the actual bodily harm being the very soft tissue injuries occasioned in the alleged assault that the Crown Prosecution Service had decided not to proceed with when they offered no evidence in February of 2005.
12. It is a long-standing principle of our law that a man should not be tried twice for the same offence. The recent changes in Part 10 of the Criminal Justice Act 2003 in relation to serious offences have no bearing on the present case. The question is whether the applicant had previously been in jeopardy on the charge that is before the court. A plea of autrefois acquit is not established unless it is shown that a verdict of acquittal of the previous charge necessarily involves an acquittal of the subsequent charge. In the Crown Court the position is covered by section 17 of the Criminal Justice Act 1967 which is in these terms:

"Where a defendant arraigned on an indictment or inquisition pleads guilty and the prosecutor proposes to offer no evidence against him, the court before which the defendant is arraigned may, if it thinks fit, order that a verdict of not guilty shall be recorded without the defendant being given in charge to a jury. The verdict shall have the same effect as if the defendant had been tried and acquitted on the verdict of a jury."

13. There is a comparable provision in the Magistrates' Court in the form of section 27 of the Magistrates' Courts Act 1980:

"Where on a summary trial of an information the court dismisses the information, the dismissal shall have the same effect as an acquittal on indictment."

So the position in the Magistrates' Court is in line with that in the Crown Court. My Lord's researches have shown that there were virtually identical provisions in the Magistrates' Courts Act 1952 and earlier comparable legislation going right back to the end of the last century.

14. The applicant's point is simple. The allegation against him of assault occasioning actual bodily harm on the complainant was disposed of on 18th February 2005 when the Justices formally dismissed the charge against him. It is quite irrelevant that the Crown Prosecution Service chose to call no evidence because the allegation was disposed of on the merits by the dismissal by the Justices. The court, it is submitted, is functus officio. He cannot be proceeded against again for the same offence.
15. I have already adverted to what appears to have happened in September of last year. The prosecutor was aware that he was going to have difficulty in proving the section 20 grievous bodily harm allegation and suggested that the matter might be resolved by the applicant pleading guilty to the lesser offence of assault occasioning actual bodily harm, which we think must relate to other soft tissue injuries that the victim suffered. That is, other than the injury to the eye.
16. Counsel then appearing for the applicant was not at that stage aware that the assault occasioning actual bodily harm had been dismissed by the Justices the previous February. Everybody's attention was drawn to that by the Clerk of the Court. But there was then some discussion, the position being that defence counsel submitted that the court was functus, the Crown prosecution Service inviting the Magistrates to conclude (and this was supported by their legal advisor) that they were not. In the event, the view of the Court Clerk prevailed.
17. The prosecution argued that there has been no hearing on the merits and that autrefois acquit did not apply. Also, as I have mentioned, the Justices were advised accordingly by their clerk. The law, so it seems to me, was conclusively resolved by Rose LJ in R v G [2001] EWCA Crim 1215. In that case the defendant pleaded not guilty to the first count of common assault on R, the second count of assault occasioning actual bodily harm on M, and a third count of affray. On the date fixed for the trial, the prosecution sought to add assault occasioning actual bodily harm on R because of the injuries that he had sustained. Counsel for the prosecution indicated that no evidence would be offered on count 1 (that is the common assault charge) on the basis that the defendant did not take any point about autrefois acquit. The Justices directed a verdict of not guilty under section 17 of the 1967 Act, and the learned judge concluded that the defendant was not entitled to rely on the doctrine of autrefois acquit.
18. The matter came before the Court of Appeal Criminal Division and the court, presided over by Vice President Rose LJ, held that the mens rea necessary for common assault and assault occasioning actual bodily harm were the same, the only difference between the offences being whether injury had actually been caused to the victim. Where a verdict of not guilty had been entered in relation to a common assault the defendant was entitled to rely on an offence of autrefois acquit when faced with a charge based on the same facts of assaulting the same victim and occasioning him actual bodily harm, and that accordingly the judge's ruling was wrong.
19. The court did not follow the earlier decision in Brookes [1995] Crim LR 630, pointing out that no reference had been made in that case to section 27 of the Magistrates' Courts Act 1980 and, had the Court been referred to that section, the decision of Turner J would surely have been different.
20. Rose LJ referred to Professor Smith's commentary in the Criminal Law Review in respect of Geladi [1993] QB 329, [1995] Crim LR 630-631, where he said an acquittal of an offence under section 20 is inconsistent with an offence under section 18 on the same facts. The greater offence includes the less. Rose LJ inferred that Professor Smith was unimpressed with the decision in Brookes.
21. It is plain, in my judgment, that section 27 of the Magistrates' Courts Act 1980 makes the situation, for practical purposes, indistinguishable from section 17. Therefore, what Rose LJ had to say in Geladi is not only of direct relevance to the present case but is also binding upon us. What should have happened in the present case is that the prosecution should have applied in February 2005, either to amend the ABH to section 20, thereby leaving the option to the court to convict on ABH if it was not satisfied of GBH, or, alternatively, to have the ABH allegation adjourned, leaving it undisputed with the effect being the same. There was, in my judgment, no purpose whatsoever in offering no evidence on the assault occasioning actual bodily harm.
22. The legal advisor to the Justices provides an additional ground for seeking to justify the court's decision and that is that the Magistrates did not provide any certificate under section 44 of the Offences Against the Person Act 1861 and that, in the circumstances, there was no determination on the merits. In my judgment, section 44 and section 45 have no bearing on the present circumstances which are governed in effect by section 27 of the Magistrates' Courts Act 1980. It seems to me that sections 44 and 45 are concerned wholly with private prosecutions.
23. In these circumstances, I would therefore quash the decision of the Justices convicting the applicant of assault occasioning actual bodily harm. Before leaving this case, I would like, however, to make the following further observations. First, it is imperative that the prosecution of young offenders is conducted expeditiously. It is difficult to see why an offence alleged to have been committed in July 2004 was not tried until September 2005. The Crown Prosecution Service has been distinctly unhelpful in providing information to the court. Further, the picture presented to this court is of a continuing failure on the part of the Crown Prosecution Service to get on with the case. I would also make this observation, that where there is delay of this nature the court itself should exercise firm control to ensure that delay is kept to a minimum and the case should have been heard sooner.
24. The second point is that the Crown Prosecution Service submitted that the Youth Court should take the course that it did. A course that is, in my view, wrong in law. Although the Crown Prosecution Service was served as an interested party, it has not appeared before us to defend the Youth Court's decision, nor has it conceded that the decision was wrong. This has resulted in a four hour time slot being set aside for the hearing of this application. In my view, it is less than helpful for the Crown Prosecution Service, having taken a point of this kind -- and nobody is criticising them for getting the law wrong -- but once there is an application for judicial review they should not bury their heads in the sand and they should make up their mind whether they are going to maintain that the decision of the court was correct or whether it is, on reflection, indefensible and they should inform the court of their position.
25. The Crown Prosecution Service's failure in this case has been compounded by the fact that although they were asked to supply very relevant information about the complainant's statement and also about its case summary, they have failed to respond, thus leaving this court to do the best it can to infer what appears to have happened from such information as is available. I hope that these observations will be drawn to the attention of someone sufficiently senior in the Crown Prosecution Service to ensure that in future there are no more failures of this kind.
26. I would allow the application for the reasons I have given.
27. MR JUSTICE OPENSHAW: I entirely agree.
28. MR RIMMER: My Lords, I am obliged. As far as the question of costs is concerned, my client is Legally Aided and might I ask for an order for legal services funding taxation. My instructing solicitor reminded me this morning, and I am happy to yield to the advice given, that rather than taxation costs be ordered from central funds.
29. LORD JUSTICE SCOTT BAKER: I would have thought central funds was the right place. You can have that, certainly.
30. MR RIMMER: I am grateful.
31. LORD JUSTICE SCOTT BAKER: Would you and your instructing solicitor be kind enough to see that a transcript of this judgment goes to the right place in the Crown Prosecution Service?
32. MR RIMMER: My Lord, I have certainly taken on board your judgment and I am sure my instructing solicitor will make sure of that.
33. LORD JUSTICE SCOTT BAKER: I am sure it has more chance of getting there if he does it than if the matter is simply left in the air. I am very grateful to you for your assistance.