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
		22nd November 2006

1. MR JUSTICE TREACY: The appellant in this case, Paula Lawton, appeals against the decision of the Hammersmith & Fulham and Kensington & Chelsea Justices sitting at West London Magistrates' Court on 24th November 2005. The decision which was made was to dismiss informations laid against the respondent by the appellant alleging breaches of bye-laws made under the Towns Gardens Protection Act 1863 in relation to Arundel and Elgin Ornamental Gardens, London W11.
2. There is in fact a preliminary application before the court which is made by the appellant to remit the matter to the Justices for the case stated to incorporate additional detail and materials. We have considered that application but we are satisfied that the case as stated is in sufficient form for this court to deal with the matter and we reject the application to remit.
3. I therefore turn to the matter on its merits. On 8th April 2005 the appellant brought a private prosecution against the respondent for breach of the bye-laws which applied to the above named gardens. Two informations were laid. They alleged identical breaches said to have taken place on 31st October 2004 and 19th March 2005 respectively. I will now read the wording of the latter information:

"On 8th April 2005 at West London Magistrates' Court complaint was made by Paula Lawton of [address given] that on 19th March 2005 at Arundel and Elgin Ornamental Gardens Committee, football or similar games were played and acts done which may damage trees, shrubs and flowers. Contrary to Byelaws created under section 4 of Town Gardens Protection Act 1863."

4. I now turn to the bye-laws themselves. The bye-laws comprise some 17 in number. Bye-law 8 is in these terms:

"No person shall cut, break or otherwise injure the trees, shrubs, flowers, seats, walls, fences, gates or huts or do any act which may injure or damage any property belonging to these gardens."

Bye-law 17 is in these terms:

"No football or similar games may be played in the gardens."

It will be seen that the informations laid conflate the wording of Bye-law 8, which relates to the prohibition on damaging property, with the wording of Bye-law 17 which contains a prohibition on the playing of football or similar games in the garden.

5. On receipt of the summons, the respondent returned the acknowledgment form to the court indicating that he intended to plead not guilty. When the matter came before the court for trial on 19th September 2005, the legal advisor did not formally put the substance of the informations to the respondent and ask whether he pleaded guilty or not guilty in accordance with section 9 of the Magistrates' Courts Act 1980. The legal advisor simply confirmed that he, the respondent, was still contesting the matter as previously indicated to the court.
6. The Justices found that on both 31st October 2004 and 19th March 2005 the respondent was seen in the gardens with his son, aged 5 years, kicking a ball. In his defence the respondent contended that he and his son playing with the ball was not what was contemplated by the prohibition in the bye-laws and did not come within the meaning of the phrase "football or similar games" therein. The Justices, having considered the definition of football in the Compact Oxford English Dictionary, found that the actions of a boy and his father with the football did not amount to the playing of football or similar games. The Justices additionally found that there was no evidence before the court to show that damage may have, or indeed had, been caused to the gardens. As a result, they dismissed both informations.
7. The Justices posed three questions for the opinion of this court. Firstly, whether the court may have erred by not putting the information to the respondent on the day of trial in accordance with section 9(1) of the Magistrates' Courts Act 1980. Secondly, whether the court erred in conflating the wording of two separate bye-laws, numbers 8 and 17, into a single information. Thirdly, whether on the evidence adduced and facts as found there was evidence upon which the court could come to its decision.
8. I shall quote at this point from the case stated. Paragraph 3 is in these terms:

"We were of the opinion that there were two elements constituting the offence in the summons. That, 'football or similar games' need to have been played and that acts are done which, 'may damage trees, shrubs and flowers'.

(4) In relation to the allegation on the 19th March we did not consider that a boy with a football and his father amounted to 'football or similar games'. We were guided by a dictionary definition of 'football' namely the Compact Oxford English Dictionary Oxford University Press. Furthermore, we did not hear any evidence that any damage may have or indeed did take place. We found the defendant not guilty. In relation to the matter on the 31st October 2004 the defendant admitted kicking a soft ball 10 yards to his 5 year old son. Considering the allegation as a whole we did not find that the elements of the offence had been made out, namely that, 'football or similar games were played and acts done which may damage trees, shrubs and flowers'.

(5) Accordingly, we found the defendant not guilty on both counts."

Paragraph 7 of the case is in these terms:

"Mr Fleming-Brown had indicated that he intended to plead not guilty when he returned the 'acknowledgment of the summons' to the court and a trial date was fixed and notified to both parties. On the day of the trial the Legal Advisor confirmed that he was still contesting the matter. The court maintains that the appellant had a copy of the summons throughout the proceedings and was fully aware that the court was embarking on a trial of the information. Therefore, the appellant was not placed at any disadvantage."

9. We have heard today from the appellant in person and briefly from Mr Ian Glen QC, instructed on behalf of the respondent. It is clear to us that the issue of usage of the gardens is one which has been controversial for some time and that differing views are held by differing nearby residents and users of the garden. The appellant and respondent find themselves on opposite sides of the debate. Both sides introduced into the proceedings a great deal of historical detail which was perhaps not entirely helpful in resolving the issue actually before the court.
10. Turning to the first question posed in the case stated, we observe that section 9 of the Magistrates' Courts Act 1980 requires the court to ask an accused whether he is pleading guilty or not guilty. It is acknowledged that this procedure was not strictly followed. It is a procedure which seems to me to be primarily for the benefit of the accused so that he may know the charge against him prior to pleading. In the context of this case, the accused was at no disadvantage. He knew the allegation and was in fact able by his conduct to demonstrate that he understood it but denied it.
11. However, the appellant asserts that she was put at a disadvantage by this procedural error. She claims that she was unaware of the inclusion of the element relating to damage to plants and trees and that the introduction of this element confused proceedings. She asserts that the trial was invalid by reason of this procedural failure and seeks a retrial. We cannot accept this argument. The Justices found that the appellant had a copy of the summons during the hearing and was fully aware of the matter being tried. She herself has acknowledged today that she did indeed have a copy of the information. It is, in my view, incumbent on the prosecutor to ensure that the information is in proper form prior to the start of the trial. I do not consider that there is any basis for holding that this appellant was improperly disadvantaged or that the proceedings should be regarded as a nullity.
12. Next, I have come to the conclusion that the court was in error in conflating the two separate bye-laws into a single information. Playing football or damaging property in the gardens constitute separate and distinct breaches of the bye-laws. They should have been dealt with in separate informations. I consider that the informations as tried were bad for duplicity. The respondent could have sought to have them dismissed on that basis, or indeed could have appealed successfully against any resultant conviction: see Hunter v Coombes [1963] 1 AER 904. The answer to the second question posed by the Justices is "Yes".
13. The Justices found that neither limb of the defective informations had been satisfied and so they dismissed them. The appellant challenges the decision that the admitted conduct of the respondent and his son did not amount to playing football or a similar game. I think that the justices took too narrow a view of what constituted football or a similar game by placing too much emphasis on the dictionary definition which referred to a game between two teams seeking to put the ball into the opposition's goal. By any common sense and natural interpretation, the respondent and his son were playing football or a similar game. I conclude that the Justices misdirected themselves and came to a conclusion to which no reasonable bench could have come. I find that they were in error in their conclusion in this respect at paragraph 4 of the case.
14. The next question to arise is what relief, if any, this court should give. I am conscious that the respondent has already been tried on an information which was seriously defective. In addition, the Justices acquitted the respondent on both limbs of the defective information, and even if they were in error on the football limb there can be no complaint about the decision on the damaged property limb. In my judgment, to order a retrial would be inappropriate. This decision is fortified by the information provided to us today that there has been a recent amendment to the bye-laws which makes the question of what constitutes football academic. A saving has now been provided for play between parents and children in defined circumstances. There can be no public interest in prolonging this matter any further by ordering a retrial.
15. I conclude that the appropriate way of dealing with the matter is to uphold the acquittal, albeit on different grounds from those found by the Justices; namely the defective nature of the information taken with the Justices' finding as to the lack of damage to property. Accordingly, the appeal is dismissed.
16. LORD JUSTICE WALLER: I agree.
17. MR GLEN: My Lord, the question of costs then arises. There is a power, I think, from Central Funds or against the appellant personally. May I say, sitting here thinking about it, I do not want to aggravate any neighbourly dispute by pressing against the appellant, but we are entitled to our costs.
18. LORD JUSTICE WALLER: So you seek your costs from Central Funds, is that the thrust of your submission?
19. MR GLEN: Yes. I am here with my solicitor and obviously our bill will have to be taxed.
20. LORD JUSTICE WALLER: Mr Glen, I think you should have your costs from Central Funds. Obviously the costs judge will want to consider whether a leader was somebody who should have come and represented, but that will be a matter for the costs judge.
21. MR GLEN: I have no comment to make about that.
22. LORD JUSTICE WALLER: Thank you very much.
23. MRS LAWTON: My Lord, I am absolutely horrified because what has been stated does not in fact relate to either the summons that we issued or the case that was brought. As a citizen of this country I am absolutely appalled and it has become now a matter to me not only of being allowed to live in peace in my own home which has now been destroyed by this verdict, but also being allowed to bring an appeal in terms which I defined which has not been heard at this court. May I therefore ask for leave to appeal this issue further on those issues as well as the issue that the court has just defined, that they have dismissed my case. They have confirmed that he was playing football, they have refuted the judge's decision and yet they have found against me and left me with a harrowing bill. This is a matter of tremendous concern to me.
24. LORD JUSTICE WALLER: Why a harrowing bill?
25. MRS LAWTON: I assume that a bill is going to be served on me.
26. LORD JUSTICE WALLER: No, you have not understood that. The costs are from Central Funds. It is not an order for costs against you.
27. MRS LAWTON: Thank you, my Lord. I am sorry, I did not understand.
28. LORD JUSTICE WALLER: Do not think in terms of any harrowing bill. I am obviously sorry that you do not think that we got the decision right. That sometimes happens.
29. MRS LAWTON: Indeed, my Lord. I think you got the decision right but you still found against me which is very frightening.
30. LORD JUSTICE WALLER: I am afraid you do not have permission to appeal.
31. MRS LAWTON: Thank you, my Lord. What happens now?
32. LORD JUSTICE WALLER: I am afraid we are not an advice bureau, but there are places in the court where if you want to go and get some advice you can get it.
33. MRS LAWTON: Thank you, my Lord.