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
		9th May 2008

1. MR JUSTICE OUSELEY: The appellant was convicted before Lowestoft Magistrates' Court of one offence of felling trees with a estimated volume in excess of five cubic metres without a licence issued by the Forestry Commission, contrary to section 17 of the Forestry Act 1967. He appealed against his conviction to the Ipswich Crown Court, which dismissed his appeal on 29th August 2007. Mr Rockall appeals by way of case stated against that conviction.
2. HHJ Goodin stated a case but only in relation to one issue which the appellant sought to raise. This concerned the so-called "garden defence" to the felling. The judge refused to state a case on two other points which related to whether the information had been proved by the prosecutor to have been laid within six months of the Forestry Commission having notice of the commission of the alleged offence.
3. The time of the laying of the information has already been before the Divisional Court in 2007 on a preliminary point. It concluded that, taking the date of 12th August as the date of notice to the Forestry Commission, which for those purposes the prosecutor conceded, the information had been laid by fax just in time at 4.00pm on Friday 10th February rather than at 10.00am on Monday 13th February, which would have been too late; see Rockall v Department for Environment, Food and Rural Affairs [2007] 1 WLR 2666; [2007] EWHC 614 (Admin).
4. The question, however, remained whether the prosecutor was in fact notified on 12th August 2005, as assumed for the purposes of that case, or whether it might have been notified earlier. That issue was before the Ipswich Crown Court. It concluded that notice was received on 12th August, that is the date, on the Forestry Commission case, when the informant from the Parish Council told the Forestry Commission of the felling at Deer Park Lodge, Woolverstone, in Ipswich, owned by the defendant. There is room for real debate as to whether for this statutory purpose that sort of information can constitute the relevant notice, but there was a concession before the Crown Court and Mr Payne, who appears before us for the prosecutor, does not feel able to resile from it.
5. The defendant contended that the Forestry Commission officer had in fact visited the Deer Park Lodge estate on 11th August and so, in the absence of other evidence, the informant might have told the Forestry Commission before 10th August of the felling of trees and thus the Forestry Commission might have been notified of the breach before 10th August. The Crown Court however accepted the Forestry Commission evidence that that happened on 12th August and rejected the contrary evidence of the defendant.
6. The questions which the appellant had unsuccessfully sought to raise in relation to this issue were these:

"(1) On the whole of the evidence and given, in particular, that the evidence of neither the appellant not Mr Hill was challenged as untruthful and that their evidence as to the date of Ms Allen's visit to Deer Park Lodge was corroborated by contemporary documents, could a reasonable bench properly find that the Respondent had discharged the burden of proving beyond reasonable doubt that the Forestry Commission had no notice of the alleged offence prior to 10th August 2005.

(2) Whether the court's reasons for concluding that the Forestry Commission was first notified of the felling of Friday 12th August 2005, and not before, were adequate or sufficient".

7. The judge in declining to state a case in relation to those questions said, through the court manager in a letter of 4th October 2007, that he did not feel that he could properly state a case on this jurisdiction issue. He said it was:

"... a question of fact as to the date on which the Commission first became aware of the felling, which turned on the evidence before the Court, and was decided on that evidence. It was abundantly plain from the evidence that the Respondent's case was that Mr Rockall and Mr Hill [a chartered surveyor who advised Mr Rockall] were mistaken or untruthful on that point; that counsel for the Respondent chose not to accuse either of them of lying is of no assistance."

8. The appellant seeks an order requiring the judge to amend the case stated so as to deal with those two questions. The procedure adopted by the appellant in seeking an order that the case stated be amended is one which has been sanctioned, and which is not objected to in consequence, by the decision in Sunworld Ltd v Hammersmith and Fulham London Borough Council [2000] 1 WLR 2102. The issues therefore before this court are whether it is arguable that the court's decision on the date of notice was irrational and whether it is arguable that the reasons given by the judge, at that point, were legally inadequate.
9. I turn to the first question: is there an arguable case that the conclusion of the Crown Court in relation to the evidence was irrational? I emphasise how high the ultimate test is; see for example the decision in Bracegirdle v Oxley [1947] 1 KB 249, repeated in a number of subsequent decisions, see again, for example, R v North West Suffolk (Mildenhall) Magistrates' Court, ex parte Forest Heath District Council [1997] EWHC 1575. Although I am concerned only with arguability at this stage, the high threshold test which would ultimately have to be satisfied impacts on what has to be shown for such an error arguably to exist.
10. The Crown Court was faced with two competing sets of evidence on the date of notice. The prosecutor called Ms Lindsey Allen, a Forestry Commission official, who said that she was told of the felling on 12th August and produced the office entry of the complaint or information being made on that day with a timed entry. She explained, by reference to her diary entries, that she had visited the Deer Park on Monday 15th August and set out in her diary the subsequent acts she had taken in consequence, including speaking on the 16th to Mr Rockall's surveyor, Mr Hill, who raised the question of the garden exemption, and noting her further visit on the 17th to the Deer Park Lodge for the purpose of measuring the extent of felling, which is of course a necessary part of the offence. She gave evidence in accordance with her diary entries and said that an earlier entry on the 11th, saying that there had been site visits but with the location unspecified, did not include a visit to the Deer Park, she was "pretty sure".
11. In the light of what Mr Lamming for Mr Rockall says about the questions put, or rather not put, to his witnesses in cross-examination, I point out that it was not suggested to Ms Allen that she was lying about what she did about the diary entries. It was only suggested that she was mistaken over the dates and the sequence of events recorded; Mr Lamming had plainly regarded that as at least a plausible contention to place before the Crown Court. There was no dispute that a visit took place for measurement purposes on 17th August 2005.
12. The defence evidence was this. The defendant himself gave evidence that he received a call from Mr Heard, his estate manager, on 11th August, saying that someone from the Council was there about the felling. He said he could remember that it was about then because that was the week in which his birthday fell. That reference to the Council was not without interest since the informant was a member of the Parish Council or was acting on its behalf.
13. The evidence of Mr Rockall was "supported" by an entry in the estate manager's diary for 11th August. At the bottom of the page for that day, after various timed activities had been noted, including activities up to 5 o'clock, there was an untimed entry referring to a visit not from the Council but from the Forestry Commission, with a reference in brackets to Lindsey Allen. The maker of that entry was not called to give evidence.
14. The defendant also called Mr Hill. Mr Rockall had telephoned Mr Hill, he said, in order to get him to pursue what he had been told over the telephone by Mr Heard. Mr Hill said that he had gone to the site and, in the light of what Mr Rockall said, had expected to be dealing with some form of local authority intervention, but found the estate manager rather unclear as to who had been round about the felling. Mr Hill said that he had picked up the visiting card of Ms Allen on that occasion, the 12th, and, although he had been instructed by Mr Rockall to make contact with whoever was making these enquiries, he did not in fact make any telephone contact with Ms Allen until, it is agreed, 16th August, that is the Tuesday after the Thursday on which it is said by the defendant her first visit took place. He was asked about what he was doing during those days. He said he had been engaged in work on the 12th at a hotel in Northampton. His diary entry showed that he was in the office on Monday the 15th but out of the office on the 16th, when telephone contact was in fact made and when he helped draft a letter to be sent to Ms Allen. His evidence about his whereabouts was supported by diary entries which showed him visiting the Deer Park on the 12th and 18th August but those diary entries said nothing about what he was doing there nor about telephone calls which he might have made nor about any card he had picked up. So they can show whereabouts but not much more. No questions were asked of Mr Rockall in cross-examination and it was not suggested to Mr Hill in cross-examination that he was lying, although, just as with Ms Allen from the defence point of view, the prosecution case clearly was that it was Mr Hill was who was mistaken.
15. Absent any explicit judicial reasoning for the moment, the Crown Court was clearly faced with a conflict between Ms Allen, the informant note, and her diary entries and recollection, and the defendant with the estate diary and Mr Hill and their recollections. The estate diary, unlike the telephone call, referred to the Forestry Commission. Mr Hill did not note the dealings or events but merely his presence. The estate manager did not give evidence and there was a conflict between what he said about who had visited him on 11th August, according to Mr Rockall (and Mr Hill said he was uncertain in speaking to him), and what was recorded in the estate diary. But there was potential congruence between what he told Mr Rockall about the Council visiting and the informant on behalf of the Parish Council. The estate diary does not say when the entry was made, nor does it say what the time of visit was.
16. The Crown Court saw Ms Allen give evidence and her evidence was supported by her diary. He could see the obvious improbability of the sequence of events noted in it over the 15th, 16th and 17th, which also fitted with the informant note of the 12th, all being the product of mistaken entries, and yet they were not said to be lies. The judge was entitled to regard all that as very potent evidence. He was entitled to regard the evidence of Mr Hill, which was in reality the lynchpin of the defence case, as being much less certain and more capable of being mistaken, particularly as, on what Mr Hill was saying had happened, he had effectively done nothing about getting in contact with the Forestry Commission until the Tuesday, when he was busy, despite an explicit instruction from Mr Rockall to find out what was happening. Mr Hill would have failed to take advantage of a day in the office on the Monday to get in touch. The judge was also entitled to consider what Mr Rockall was told, which was not that the Forestry Commission had come to the estate but that the Council had done so.
17. In my judgment, it is perfectly obvious that a court rationally could conclude on that evidence that, as one set of diaries was a mistake and unreliable, it was that of the defendant. A court could rationally be wholly satisfied that what was set out in Ms Allen's diary and evidence was true and reliable beyond a reasonable doubt.
18. The second question is whether the reasons provided by the judge were adequate. Related to that is a question of whether the Crown Court adopted that reasoning which I regard as perfectly rational, rather than some other reasoning which can be stigmatised as arguably irrational. It is wholly undesirable, for the reasons which the Crown Court in its appellate capacity has to give, to become the focus of challenge in the way in which the Administrative Court has become familiar with in other areas. What is said in Archbold 2008 ed. at 2-202 by summation of the authorities is that the court must say enough to demonstrate that it has identified the main contentious issues in the case and how it has resolved each of them. The reasoning required will depend upon the circumstances. In some cases a bald statement of the evidence of a particular witnesses is accepted will be sufficient. In others, reasons may have to be advanced to explain why apparently powerful points in favour of the unsuccessful party have been rejected. Mr Lamming picked up on that latter statement and referred to its source, namely R v Harrow Crown Court ex parte Dave [1994] 99 Cr.App.R 114, a Divisional Court decision. He submitted that the evidence of the defendant here fell into just that category.
19. Whilst acknowledging the skill of Mr Lamming's drafting of the questions for the case stated, a fuller examination of the evidence does not put the evidence called on behalf of the defence so obviously as he would suggest into that category. It is important to recognise the nature of the issue which the judge was faced with when one considers what he actually said. I now turn to his approved note of judgment.
20. In paragraph 5 he set out in summary form the evidence which he had heard from the appellant and respondent. He did make comments in the course of that paragraph about the nature of the estate manager's diary entry and the inconsistency between the diary entry about the Forestry Commission and the evidence, unchallenged, of Mr Rockall that he was not told that it was the Forestry Commission who visited but someone from the Council. Having made those comments, the judge then said this:

"The question for us is whether or not we are sure that the Forestry Commission had no notice of the commission of this offence before 12th August. Dealing with [Mr Hill's] evidence for instance we are entirely sure that had he received notice that the felling was to stop, to cease, on or about noon or early afternoon on Friday 12th he certainly wouldn't have waited until Tuesday 16th before making telephone contact with the commission as we are sure he did. We are sure, in sum, of the evidence of Lindsay Allen, supported by her own documentation, that the Commission was first notified of the felling of the alders on Friday 12th August and not before."

21. Although it is possible, in my judgment, to be critical of the fullness of that reasoning and it might have been helpful if more had been said, I do not consider that reasoning to be either legally inadequate or to betray an irrational approach. When one deals with reasons, it is necessary to understand that they are not addressed to the Divisional Court with a view to being analysed there by those who know nothing of the case, but are addressed to those who have been present at, and have called, the disputed evidence and know what the issues were. It is perfectly clear that the judge was faced with a stark contrast between the evidence of Ms Allen, supported by her diary and the informant document, and the recollections of Mr Hill and Mr Rockall with less full diaries and supported by the curious entry in the estate diary, the maker of which gave no evidence, and which contradicted the evidence of Mr Rockall in a critical way as to who had called. In reality, the judge is simply making the point that the evidence of Lindsay Allen, with her documentation and the sequence of events recorded, satisfied him and the magistrate beyond reasonable doubt as to when notice had been given. They were satisfied that Mr Hill's recollection could not be right because, for example, of the way he had reacted to it. There were other aspects which the judge could have dealt with, but it is clear from the preceding paragraph that he had those in mind and was unhappy about the conflict between the diary entry and what Mr Heard, who made it, said to Mr Rockall his employer.
22. In reality it does come down to a short point and there is sufficient in what the judge has said in his reasons for it to be clear that they are legally adequate, even if lawyers can find some way of criticising the fullness of what was said. In particular, the emphasis by Mr Lamming on the absence of accusation that his clients were lying is a perfectly fair point but loses all its force when it is recognised that that was exactly the position that Ms Allen with the other diary was in.
23. When the judge refused to state a case in terms I have already referred to, he commented that Mr Rockall or Mr Hill might have been lying or mistaken. The question of whether they were lying was not part of the judgment, although it is clear that the implication of what was found was that Mr Hill in particular, and Mr Rockall, were completely mistaken. In my judgment, that letter, although it indicates the real doubts which the judge had about the reliability of the defence evidence, does not show some form of covert reasoning or indeed any irrational reasoning. What it does is simply emphasise for the simplicity of the point that someone was clearly mistaken and someone's evidence was clearly unreliable and that it was not Ms Lindsay Allen's evidence which fell into that category. On that basis, there is no arguable case that the reasons given are legally inadequate. Accordingly, because the two questions posed which I have referred to could not be answered favourably to the appellant, there is no basis for requiring the case stated to be amended.
24. This court queried in the course of argument whether the fact that the Crown Court concluded that Mr Hill was mistaken, for the specific reason that he did not react as quickly as he would have done and had been required to, without that actually being put to him in cross-examination, was unfair. In reality, this case turns on what Mr Hill and his diary showed he was doing and could have done between 12th and 16th August, particularly on Monday 15th, if what he said was right. I do not think, in light of the evidence actually given by Mr Hill as to where he was, what he was doing and why, and how it related to his instructions, that to point to the improbability of his leaving it as long as he says he did to make contact with the Forestry Commission involves any unfairness. It is an obvious matter for the defence to cover and it is not necessary for judicial thinking, perhaps after the event, to be trailed to the extent which this point would entail. This was a legitimate conclusion from the evidence, which properly arose out of an issue fairly before the court to the defendant's knowledge. Indeed, it was not argued originally as a separate point and was seen as part of the reasons case anyway. Accordingly, I would make no order for the case stated to be amended.
25. MR JUSTICE UNDERHILL: I agree. On the question of the inadequacy of the judge's expressed reasoning, his reasons were not perhaps as full and clear as they might have been but such deficiencies as there were were not in my view not such as even arguably to constitute an error of law.
26. MR JUSTICE OUSELEY: Well, this application is dismissed, Mr Lamming. Thank you both very much for your submissions. They were very helpful.
27. MR LAMMING: My Lord, it follows that we will be in touch with listing with regard to the main point in the case.
28. MR JUSTICE OUSELEY: Indeed.
29. MR LAMMING: As indicated in my skeleton for the purpose of this application, we will be filing a skeleton argument in relation to the point that now remains.
30. MR JUSTICE OUSELEY: Thank you very much.
31. MR PAYNE: My Lords, so far as costs are concerned, exclusively for the preparation for this point alone, not preparation for the appeal to date, I have a schedule of costs prepared by my instructing solicitors.
32. MR JUSTICE OUSELEY: Has Mr Lamming seen it?
33. MR PAYNE: He has. I believe a copy was provided to him yesterday.
34. MR LAMMING: I have, but I seem to have mislaid it.
35. MR JUSTICE OUSELEY: Is there an issue arising out of it?
36. MR LAMMING: My Lord, I think not. I would just like to look. Not in principle and I do not think so on figures either.
37. MR PAYNE: It omits, I regret, my Lord, the cost of my attendance for yesterday.
38. MR JUSTICE OUSELEY: Former members of the Bar always find that the most interesting part.
39. MR LAMMING: My Lord, I do not take any issue over the figure on the schedule that I have and I can understand my learned friend's embarrassment in what he was going to add.
40. MR PAYNE: Well, by calculation, assisted by my clerk, the figure that should be added is the comparatively modest one of £850.
41. MR JUSTICE OUSELEY: What is the arithmetic of all of that?
42. MR LAMMING: It will be £1,660.
43. MR JUSTICE OUSELEY: I see.
44. MR LAMMING: I do not think I can make any submissions against that.
45. MR JUSTICE OUSELEY: I do not think you can. Not without showing us what your fee is. There will be an order for payment of costs by the appellant to the respondent in the sum of £1,660.
46. MR PAYNE: My Lord, I am very grateful.
47. MR JUSTICE OUSELEY: Thank you very much to both.