CO/4837/2007 
Neutral Citation Number: [2008] EWHC 952 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Friday, 18 April 2008
 
B e f o r e:

LORD JUSTICE HOOPER 

MR JUSTICE MADDISON 
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Between: 
KINGSLEY UKPABI 
Claimant

v 

CROWN PROSECUTION SERVICE 
Defendant 
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Computer‑Aided Transcript of the Stenograph Notes of  
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Mr N Clarke (instructed by Pollecoff Solicitors) appeared on behalf of the Claimant
Ms P Lees (instructed by CPS) appeared on behalf of the Defendant
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J U D G M E N T
1.	MR JUSTICE MADDISON:  Kingsley Ukpabi appeals by way of case stated against his conviction at the Highbury Corner Magistrates' Court on 7 February 2007 of two offences of assaulting police constables in the execution of their duty, contrary to section 89 of the Police Act 1996.  The evidence given at the trial can be taken from paragraph 4 of the statement of case, of which paragraph no criticism has been made. 
2.	The prosecution's evidence was given by Police Constables Hanley and Singer.  Very briefly, it was to the effect that, at about 2 o'clock on the morning of 10 November 2006, they were called to an address in north west London by the female occupant, who said that she had been assaulted and that her assailant was still immediately outside the address.  The officers found the appellant in that position.  He swore at them.  He refused, when asked, to move away from the door.  He struck out at Police Constable Hanley but did not connect.  A struggle ensued, during which the appellant spat in Police Constable Hanley's face, put Police Constable Singer in a headlock and punched him several times in the chest.  It was these alleged actions which formed the basis of the charges.  The appellant was forced to the ground, handcuffed and arrested, although he spat again whilst being carried to a waiting police vehicle.  
3.	The appellant also gave evidence.  He said that he did not swear at the police, but he accepted that his actions had exacerbated the situation in the sense that it would not have escalated had he moved away when asked at the beginning.  He said that Police Constable Hanley had grabbed him and tried to pull him down stairs.  He (the appellant) had put his hand up as a reflex action, but had not swung a punch.  He had also been grabbed by Police Constable Singer and a struggle had then ensued, but it was not true that he had either put Police Constable Singer in a headlock or had punched him.  He only spat once, and not at Police Constable Hanley but to clear his mouth of dust.
4.	The magistrates heard submissions from the parties' advocates as to whether or not, in the circumstances, the officers were acting in the execution of their duty, and whether or not the appellant spat at and punched the officers as alleged.  They found that the officers were acting in the execution of their duty, and no point is taken by the appellant in relation to that particular finding.  
5.	Their specific findings of fact, which it is unnecessary to recite in detail, made it clear that they accepted the account given by the police officers, save that they appear also to have accepted the defendant's concession that had he moved away at the beginning of the episode, the incident would not have escalated in the way that it did.  
6.	The appeal has been prompted by what the magistrates said when they returned to court.  In a nutshell, the appellant contends that they found him guilty even though they said that they were not sure of what had happened.  
7.	The questions for the opinion of this court set out in the case stated are: 
"1.  Whether we adopted the correct burden and standard of proof in the case? 
2.  Whether that burden and standard of proof was adopted properly in our consideration of the case?"  
8.	In their case stated, the magistrates indicate that they were well aware of the criminal burden and standard of proof, and I have no reason to doubt that.  Indeed, I would expect that to be the case.  However, in the case of Evans v Director of Public Prosecutions [2001] EWHC Admin 369, Bell J, giving a judgment with which Lord Woolf LCJ agreed, concluded that because the magistrates in that case had given the impression in their remarks made in open court that they had applied a lower standard of proof than that required, an impression of injustice had been created, the provisions of Article 6 of the European Convention on Human Rights had not been seen to be observed and the appeal against the conviction in that case should be allowed.  That was so even though there was no finding that the magistrates had not in fact applied the appropriate standard of proof.  
9.	It is therefore necessary to consider in some further detail what the magistrates in the present case actually said.  Unfortunately, it has not proved easy to ascertain exactly what they did say.  
10.	The prosecuting advocate at the claimant's trial made a file note which was obviously intended as no more than a brief summary and which, in my judgment, does not provide a reliable basis for determining what the magistrates said.  
11.	I turn to a note made by Mr Clarke of counsel, who represented the appellant before the Magistrates' Court and has done so before this court.  His note of what the magistrates said reads as follows, as supplemented during the course of oral argument: 
"A struggle ensued and the Defendant said he acted in a way which caused it to escalate.  As to what happened next and why, we are not sure.  We tend to believe the officers and therefore find the Defendant guilty on both charges." 
12.	This morning we have been referred by Ms Lees to notes made by the court clerk or legal adviser of what the magistrates said.  Insofar as the note is material, it reads as follows: 
"Struggle ensued.  Def said he acted in way to cause it to escalate.  We cannot be sure what happened next and why, but we find PCs evidence believable."  
That corresponds quite closely with the note made by Mr Clarke.  
13.	One might normally expect to have a reliable record in the form of the case stated itself, but in this case, matters developed in the following way.  The magistrates issued a draft case stated which was sent to the appellant's solicitors.  On 23 April 2007, the solicitors replied to the Magistrates' Court pointing out differences between the draft case stated and Mr Clarke's note as to what the magistrates had said.  The end result was that some significant amendments were made to the statement of case.  It is unnecessary to analyse in detail the precise differences that resulted between the draft and the final statement of case.  That significant amendments were made following the receipt of the letter from the defence solicitors gives rise to a degree of unease, although in the event the final version of the statement of case more closely corresponds with the note of Mr Clarke and with the note of the court clerk or legal adviser than had the initial version in the draft.  
14.	The relevant passage of the statement of case in its final form is taken from paragraph 8(iii) and it reads as follows: 
"In giving our reasons we stated that we had found that a struggle had ensued and that the appellant acted in a way to cause it to escalate.  We went on to say that we could not be sure what exactly happened next and why but we find the officers' evidence believable."  
Interestingly, in the draft statement of case the magistrates went on with the words "... and were sure that the assaults occurred", but those words do not appear in the final version of the case stated.  
15.	Piecing together, as best as can be done, the account given by the magistrates in their final case statement, the account of Mr Clarke and the account of the clerk to the court, I am satisfied that the magistrates, when explaining their reasons for convicting the appellant, did convey the impression that they had applied a standard of proof lower than the criminal standard, which required them of course to be sure of guilt before convicting.  I am satisfied of this, even though it is impossible to know precisely what words the magistrates used.  
16.	I come to this conclusion having regard to their use of the words (or words to this effect): "We tend to believe the officers", and having regard also to the fact that when the defendant said that he caused the incident to escalate by refusing to move away, he was referring to a point before violence had broken out.  It follows that when the magistrates said that they could not be sure what happened after that point, they would be creating the impression that they could not be sure what happened when violence broke out and thereafter.  
17.	We appreciate the point made by Ms Lees, on behalf of the respondent, that the magistrates were lay magistrates, and that it is inappropriate to engage in too technical a semantic exercise.  We also have been referred by her to the case of McCubbin v DPP [2004] EWHC 2504 in which the case of Evans v DPP was referred to, but which was clearly distinguishable from the case with which this court is dealing, in the sense that the case of McCubbin did not turn on anything said by the magistrates in open court to give rise to unease as to whether or not they had applied the correct standard of proof.  
18.	In the circumstances, I would allow this appeal and quash the appellant's conviction.  I would answer the questions for the opinion of the High Court by saying that there is no reason to believe that the magistrates in fact applied the incorrect burden and standard of proof, but that they created the impression by their remarks in open court that they had not applied the correct standard of proof.  
19.	LORD JUSTICE HOOPER:  I agree.  Any supplementary orders? 
20.	MS LEES:  My Lord, no.
21.	MR CLARKE:  My Lord, as you have heard, the appellant is represented on a legal aid order ‑‑ 
22.	LORD JUSTICE HOOPER:  Do you want costs out of central funds?
23.	MR CLARKE:  Yes, my Lord. 
24.	LORD JUSTICE HOOPER:  We make a costs order so that he can recover his travelling expenses.
25.	MS LEES:  Thank you, my Lord.  
26.	LORD JUSTICE HOOPER:  Yes, thank you.
27.	MR CLARKE:  My Lord, the appellant tells me, and I recall that he is right, that he paid £200 before legal aid was granted in respect of this matter.  
28.	LORD JUSTICE HOOPER:  Yes, we order the repayment.  If that turns out to be something which we do not have the power to do, come back to us in writing.