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 WC2A 2LL
		6th December 2007

1. MR JUSTICE HENRIQUES: This is an appeal by way of case stated from Deputy District Judge Cousins sitting at Teesside Magistrates' Court on 8th and 9th November 2006. The appellant and one Stokes were both convicted of affray contrary to section 3 of the Public Order Act 1986. Both were sentenced to identical community orders.
2. A preliminary point arises with which the respondent has not taken issue. The appellant was convicted on 9th November and an application to state a case must be made within 21 days. On 17th November an application was made to the Justices but it failed to comply with Rule 64 of the Criminal Procedure Rules in that the application failed to identify the question of law on which the opinion was sought. The Clerk to the Justices responded on 29th November, pointing out the non-compliance. A properly drafted application was received by the court on 12th December 2006. R v Bromley Magistrates' Court ex parte Waitrose Ltd [1980] 3 All ER 464 is clear authority for the proposition that an application may correct the original application outside the 21 day time limit, provided the amendment was made within a reasonable time. Whilst it is, of course, desirable that the point of law to be decided should be included in the application within the time limit, this amendment was made some 13 days after the omission was pointed out and, accordingly, I would treat this application as being within time.
3. On 25th June 2006, at about 11.00pm, an incident occurred at the Europa restaurant in Middlesbrough. The appellant and a man by the name of Stokes were involved. Stokes was seated on the upper of two floors at a corner table and was described as being the worse for drink. Stokes indicated throughout the proceedings that he had no memory of events that night. The appellant entered the restaurant at ground floor level and he was warned by a member of staff that Stokes was upstairs, there being existing bad feeling between the two men attributable to an earlier fight. In due course, the appellant went upstairs and was joined by a friend. Together with his friend, the appellant approached Stokes and spoke to him. Voices became raised and both the appellant and Stokes shouted and at this point the police were called.
4. By the time the police arrived both men were fighting. The evidence from six police officers caused the Deputy District Judge to conclude that both men were engaged in fighting, neither more vigorously than the other. People in the vicinity were frightened and perceived unlawful violence. Indeed, one of the police officers sustained just such violence. After arrest, and when interviewed, the appellant raised the issue of self-defence and continued to do so at trial. He asserted, without contradiction from Stokes, that Stokes had struck the first blow. Stokes accepted that he may have done so but said that he was drunk and vulnerable and may himself have feared violence.
5. The Deputy District Judge found that it was an even position between the two defendants before her but concluded that both could have stopped and, no matter how momentary their behaviour, it was no longer reasonable nor necessary and thus unlawful. Either could have taken simple avoiding action. The appellant could have retreated in the same way as he approached. He was not stuck in a corner, being in the same position he had assumed when he arrived. Stokes could have stepped away or sat down or indeed stopped the moment the police arrived but failed to do so. The Deputy District Judge concluded that both defendants were threatening and using unlawful violence towards each other and that a person of reasonable firmness present at the scene would have feared for their personal safety.
6. Since a person is guilty of affray only when using or threatening unlawful violence, self-defence is an answer to a charge of affray. The only evidence available to the District Judge concerning the start of the fight came from the appellant himself and it was that Stokes attacked him and he responded in necessary self-defence. The Deputy District Judge concluded that when the police officers observed the fighting the appellant was no longer acting in lawful self-defence. She concluded that, when observed by the police officer witnesses, his conduct in striking or offering violence to Stokes was neither reasonable nor necessary.
7. In his admirable submission to us, Mr Murray has drawn attention to the fact that there is no reference in the case as stated to any subjective element in the Deputy District Judge's approach to the law. It is not necessary here to review or restate the law of self-defence. The classic pronouncement on the law is stated by the Privy Council in Palmer v R [1971] AC 814, approved and followed by the Court of Appeal Criminal Division in McInnes 55 Cr.App.R page 551.

"It is both good law and good sense that a man who is attacked may defend himself. It is both good law and common sense that he may do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances."

8. Palmer is correctly cited as supporting the proposition that the old rule of law, that a man attacked must retreat as far as he can, has disappeared. Whether the accused did retreat is nevertheless an element for consideration in determining whether he was acting in self-defence, as is his ability or inclination to do so. The fact that a man engages in violence to defend himself does not justify the continued use or threat of violence beyond such time as is reasonable and necessary to defend himself. The kernel of Mr Murray's argument is that the test as apparently applied by the Deputy District Judge was a wholly objective test. In Palmer, Lord Morris of Borth-y-Gest said that where a person attacked had only done what he honestly and instinctively thought was necessary, that would be most potent evidence that only reasonable defensive action had been taken.
9. There is nothing in the case stated to indicate that the judge applied her mind to the facts as they were perceived to be by the appellant himself. He gave evidence and did not at any stage dispute that he was engaged in physical violence with Stokes. It must be the fact that he sought to justify his continued use of violence because he believed that, had he desisted, he would have sustained and been subject to a continued attack by Stokes. That is an aspect of the case which was simply not dealt with by the Deputy District Judge. It is said by Mr Hadfield on behalf of the respondent that in stating, as she did in the case, that:

"It was an even position between the two defendants, but I believe that both could have stopped, and, no matter how momentarily, their behaviour was no longer reasonable or necessary and became unlawful."

she must have had regard to the subjective element of self-defence.

10. We are not able to accept that submission. It is perfectly possibly from the case stated that the Deputy District Judge applied a wholly objective test. The two questions as posed for our consideration were these:

"1. Was the court entitled to conclude that there was a point during the course of the incident when Mr Duffy's actions ceased being legitimate self defence?

2. Was the court entitled to infer that Mr Duffy had a duty to retreat, or, in some other way, refrain from using force himself whilst remaining under attack from a third party?"

11. I, for my part, do not consider that either of those questions direct themselves to the essential aspect of this appeal. The real question for our consideration is this: did the judge consider the subjective element of self-defence? Reading the case stated, I cannot be satisfied that the Deputy District Judge did have regard to that subjective element. Had she done so, she would have at least summarised what the appellant had to say about his continued acts of violence and she would have expressed herself as either accepting or not accepting the submissions as made by the defendant. There is a very real possibility here that she adopted a purely objective approach to the law of self-defence.
12. Accordingly, I would allow this appeal for the reasons that I have indicated.
13. LORD JUSTICE DYSON: I agree.