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
		24th January 2006

1. LADY JUSTICE HALLETT: On 7th June 2005, the appellant was convicted of an offence of common assault by the Southend-on-Sea Magistrates' Court. The background to the alleged assault was as follows: on 13th August 2004 DB, the complainant, and his foster brother, LW, were crossing Victoria Avenue in Southend-on-Sea on their bicycles. DB reached the middle of the pelican crossing and shouted to LW, in graphic terms, to get a move on. At this point, it was alleged that the appellant approached and said, "Are you talking to me?" It was alleged he then slapped DB on the head with an open palm and punched him on the arm with a clenched fist. The two boys attended the local police station that same day to report the incident.
2. On 23rd August, DB returned to the police station to say that he had seen the appellant again; this time at a railway station. The claimant was arrested that day and interviewed. He accepted he was present on the crossing on the day in question, but denied any assault. He said any contact between him and DB was accidental when DB collided with him as he rode his bicycle across the crossing.
3. At trial, both boys gave evidence. Counsel had the advantage of an incident report in which it was recorded that the boys' foster carer had telephoned the police to say that, in her opinion, the boys had fabricated the allegation as a practical joke. She was called as a witness at trial and without objection gave evidence to the effect that both boys had a history of making up stories. She was sufficiently concerned about what they had said to make the telephone call to the police. No application was made to adduce the appellant's convictions. The appellant declined to give evidence. The Magistrates retired just once.
4. On their return, the chairman announced that despite inconsistencies in the boys' accounts, the bench found them credible. The Magistrates took note of the appellant's account in interview, but they drew an inference adverse to him from his failure to give evidence. They found the case proved.
5. The Chairman immediately declared that the bench had seen the appellant's antecedents, and that the bench was minded to adjourn the matter for an "all options" pre-sentence report. Counsel objected on the basis that the chairman's comments indicated the bench must have known of the appellant's previous convictions before reaching their verdict. The legal adviser announced in open court that they had not been informed of the appellant's record at that stage. They only learned of the appellant's record after they had agreed upon their verdict. This was not contradicted by the members of the court. 5.1. The present application for judicial review is based on the same argument that there has been a material irregularity in the proceedings, in that the Magistrates must have known of the appellant's convictions before they convicted him, in law.
6. Mr Maitland, who appears in this court but did not appear below, argues on behalf of the appellant that the decision to convict is not made until the decision is announced in open court. He referred us to the decision in R v Coates [2004] 1 WLR 3043. Coates resulted from the tragic death of Kay LJ. He had presided over a constitution of the Court of Appeal Criminal Division which had heard an appeal but reserved judgment. He died before judgment was given.
7. In Coates the court held that notwithstanding the apparent agreement of all three members of the court as to the decision, and the reasons for it, for the purposes of section 55 of the Supreme Court Act 1981, the decision was not properly to be treated as binding on the court until announced in open court. Until then, it was open to any member of the court to change their mind.
8. In further support of his contention, Mr Maitland referred us to the observations of Steyn L in R(Anufrijeva) v The Home Secretary [2004] 1 AC 604, to the effect that notice of a decision is required before it can have the character of a determination having legal effect. This was the ground upon which leave to bring these proceedings was granted. Permission was refused on an alternative ground, which was not pursued before us namely that that the decision was perverse in the light of the evidence.
9. Mr Maitland referred us, in his very helpful written submissions, to decisions of this court, for example R v Birmingham Magistrates Court ex parte Robinson [1986] 150 JP 1 and R v Downham Market Magistrates Court ex parte Nudd [1988] 152 JP, in which it was held that where one member of the court became aware or might have become aware of an accused's record before verdict, there had been a material irregularity and the conviction could not stand. The court emphasised on each occasion that justice must be seen to be done, and any perception of improper bias must be avoided.
10. Mr Maitland argued that any member of the public present in court on the day in question here, and the appellant in particular, would have been left with the impression that justice had not been done and had not been seen to have been done.
11. We now have the benefit of an affidavit from the legal adviser concerned. She says, on oath, that she was invited to join the magistrates after they had reached their decision to convict. They required her assistance in compiling their reasons for their verdict. She said that she offered them her advice and, at her instigation, the members of the court recorded their reasons in writing.
12. She then informed them that the appellant had previous convictions. She asked for their provisional views on sentence, given the Guidelines of the Magistrates' Association. She further advised them that they would need to hear representations as to sentence from counsel. She insists that the court had reached its decision to convict before she joined them.
13. Her evidence, therefore, reinforces, if reinforcement were needed, what was said at court. Namely, the verdict and the reasons for the verdict had been agreed before the bench became aware of the appellant's criminal record. There is nothing in the evidence presented to us to indicate any wavering on the part of any of the members of the courts or disagreement with what their legal adviser had said. On the contrary, their silence, given their judicial oath, must be taken as assent to the assertion that they did not learn of the appellant's previous record until after they had decided to convict.
14. I have considered the decisions put before us by Mr Maitland with care. In my view they can be distinguished from the facts of the present case. Here, on the evidence before us, the Magistrates did not know of the appellant's convictions until after they had not only concluded their deliberations but had also reduced them into writing. There is nothing to suggest n that they might have known of the appellant's record before that time, and that their deliberations have been, or might have been, adversely affected thereby.
15. Their verdict as agreed was announced in open court with the agreed reasons. There was here, therefore, a judgment of legal effect. This is not a case where, although agreement had been reached as to the decision, no judgment had been delivered.
16. Therefore, as it seems to me, the only question for us is whether there is a possible perception of bias or injustice sufficient to justify this court interfering and quashing what would otherwise be a perfectly lawful conviction.
17. Mr Maitland's argument essentially relied upon an assertion that the fact that the Magistrates lost the opportunity to change their minds in the few minutes that elapsed between learning of the appellant's previous convictions and in the short walk from the retiring room to the court amounted to an injustice or a justified perception of injustice.
18. Despite Mr Maitland's valiant efforts, I am not persuaded by that argument. Given the history of this matter and the very short time which elapsed between the inappropriate disclosure of the record and putting the matter right in open court, I am not persuaded that there was in fact any injustice and or that there was any perception of injustice which could have been anything more than exceedingly short-lived.
19. I am, therefore, not persuaded that the conviction in this case should be quashed and, the appeal must be dismissed.
20. However, before leaving this case I should like to make a few observations on the procedure adopted here. On any view, this has produced an unhappy state of affairs. For my part, I would suggest that no advice should be offered by a legal adviser, provisional or otherwise, on sentence until the Magistrates have returned to court, announced their decision on conviction, heard about the accused's antecedents and listened to counsel's submissions.
21. I appreciate that it may have been thought that no harm would be done in following the procedure adopted here, and it might have been thought that it would save time and trouble in repeated retirements. However, these proceedings illustrate the potential for harm. Legal advisers should only attend upon the bench, as Mr Maitland very properly reminded us, when called upon to do so; and then only to assist with matters arising at that stage. 21.1. Given the possibility that in this case the legal adviser went into the retiring room with a copy of the appellant's previous convictions in her hand, I also suggest that legal advisers would be well advised to ensure that any such documentation is left elsewhere when they retire to give the Justices legal advice of the kind sought here.
22. Having made those observations, I am indebted to counsel for his helpful submissions, but I fear he has not persuaded me and, as I have indicated, in my view this appeal must be dismissed.
23. MR JUSTICE JACK: I agree. In my view, the situation which arose in this case is very similar to that which arose in Davies v Griffiths [1936] Weekly Notes 126, [1937] 2 All England Reports at 671. That decision was analysed by Devlyn J in R v East Kerrier Justices ex parte Mundy [1952] 2 Q.B. 26. I would refer, in particular, to page 724 of the judgments.
24. LADY JUSTICE HALLETT: Thank you. Any consequent applications?
25. MR NAIK: My Lady, nothing for the Crown.
26. MR MAITLAND: My Lady, sentencing has been adjourned to a date in April on the understanding that this court would take until then to give judgment, no doubt this decision having been given to Southend Justices and to be sentenced at an appropriately early date.
27. LADY JUSTICE HALLETT: The matter was very properly put before us, Mr Maitland. The sooner they get on with sentence, the better.