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
		12 March 2009

1. MR JUSTICE SWEENEY:

Introduction

2. In the early hours of Thursday 6 September 2007 James Emohare went to the Royal London Hospital seeking treatment for pain in his left shoulder and arm. As he was driving home afterwards along Commercial Road, E1, he was stopped by police officers and questioned about a bag snatch that had taken place in the area. It is common ground that, in fact, Mr Emohare had nothing whatsoever to do with the bag snatch. However there was an altercation between him and the officers questioning him, during the course of which Mr Emohare swung his head, it was alleged, and it caught Police Constable Drake on his head close to his eye. The officer suffered two small cuts. Mr Emohare was arrested and interviewed.
3. On 20 November 2007 an information was preferred against him alleging that he had assaulted Police Constable Drake in the execution of his duty, contrary to Section 89 (1) of the Police Act 1996.
4. The trial took place before justices at Stratford Magistrates' Court on 11 March 2008. The central issue was whether Mr Emohare had deliberately hit Police Constable Drake in the head, or whether it might have happened for some other reason, such as an involuntary reaction to pain when the officer took hold of his left arm. In the result, the justices were not sure that Mr Emohare had acted deliberately and so they acquitted.
5. That, however, was not the end of the matter. Despite acquitting Mr Emohare, the justices accepted the police officers' evidence that, when stopped, he was aggressive in his demeanour and attitude, and objected to being searched. The justices were thus of the view that Mr Emohare's conduct amounted to a breach of the peace, although no such charge had ever been brought against him. The justices therefore bound him over to keep the peace for two years.
6. Furthermore, when Mr Emohore applied for a defendant's costs order under Section 16 of the Prosecution of Offences Act 1985, the justices decided that because his behaviour had, in their view, been reprehensible, he had brought the case on himself, and therefore it would not be appropriate to make an order in his favour - albeit that they recognised that this was not one of the examples cited in the Practice Direction (Costs Criminal Proceedings) [2004] 2 All ER 1070 of circumstances in which it would be appropriate to refuse an order.
7. The justices were later to say, in effect, that Mr Emohare had been fortunate not be charged with an offence under Section 4 of the Public Order Act 1986 to which, in their view, he would have had no defence. I will return to their reasoning later.
8. Since 11 March 2008, but out of time, Mr Emohare, who had the benefit of legal representation only up to 21 August 2008, has made various attempts to appeal against both the binding over and the refusal to make a defendant's costs order. The attempts have included the following.
9. (1) On 17 July 2008 the justices stated a case but this was not lodged or otherwise relied on by Mr Emohare at that time.
10. (2) On 26 August 2008 Mr Emohare applied to Snaresbrook Crown Court for an extension of time in which to appeal against the binding over under the provisions of Section 1 (1) of the Magistrates' Court (Appeals from Binding Over Orders) Act 1956. The application was refused.
11. (3) On 3 September 2008 Mr Emohare lodged an application for judicial review. He sought an extension of time, and to quash both the binding over and the refusal to grant a defendant's costs order. On 11 November 2008 Mr Justice Blair required Mr Emohare to provide further information which he did six days later. On 11 December 2008 permission to bring the judicial review was refused by Mr Justice Plender. As to the binding over, upon the basis that it should have been appealed to the Crown Court, and as that court had refused an extension of time it was not appropriate for the Administrative Court to hear what would be, in effect, an appeal from that refusal. As to the costs issue, the judge took the view that that should have been appealed by way of Case Stated.
12. (4) As will be clear, neither Mr Justice Blair nor Mr Justice Plender were aware that there already was a case stated. It was finally lodged by Mr Emohare on 6 January 2009. The two stated questions relate to the propriety of the binding over and the refusal to make a defendant's costs order.
13. Thus, against the background of that somewhat tortuous history, there are before the court today (1) a renewed application by Mr Emohare for permission to seek judicial review, (2) an application to extend the time for lodging and hearing the Case Stated, together with a notice from Mr Emohare dated 23 February 2009 seeking leave to ask a number of questions that he wishes to pose to the justices.
14. Generally it is, of course, in the interests of justice that appeals are heard in a timely manner, and that accordingly those wishing to appeal do so within the relevant time limit, and to the most appropriate court. Non-compliance with these imperatives will, without very good reason, generally result in refusal of permission to apply out of time.
15. In this case, however, I am prepared to consider Mr Emohare's applications in view of the content of the Case Stated which, in my judgment, raises issues of concern that ought - in order to achieve the overriding objective of dealing with this case justly - to be considered by this court, notwithstanding the history of delay to which I have referred.
16. In my judgment the proper way to do this is to refuse the renewed application for judicial review, but to entertain the appeal by way of Case Stated, granting any necessary extension of time to do so.
17. Mr Emohare's proposed questions are unlikely to produce answers of any help to the court, so I proceed to consider the Case Stated in its original form.

The Case Stated

18. The facts found were as follows:

"(a) We accepted the officers' evidence that the appellant when stopped was aggressive in his demeanour and attitude, and objected to being searched;

(b) We found as a fact, it having been agreed by the respondent at the beginning of the trial, that the appellant had not in fact been involved in the original theft of the bag.

(c) We found that the officer sustained injury to his face, and that the injury was the consequence of the appellant's actions;

(d) In the absence of any evidence to the contrary, we accepted that the appellant had suffered an injury to his arm, and had visited the Royal London Hospital shortly before he was stopped by the police;

(e) However we could not be sure beyond reasonable doubt, from the evidence we heard, that the contact between the appellant's head and that of Police Constable Drake was as a result of a deliberate action by the appellant, or whether it might have happened from some other cause such as an involuntary reaction to pain from the appellant's arm.

Accordingly we dismissed the information."

19. As to the decision to bind over the appellant, the justices stated:

"Having regard to our findings of fact, we were of the view that the appellant's conduct on this occasion was unacceptable and amounted to a breach of the peace, and we indicated to the appellant's legal representative that we were minded to exercise our powers to bind the appellant over to keep the peace. No representations having been made, we then bound the appellant over for a period of two years in his own recognisance of £500 to keep the peace. We also ought to note that we were given to understand after the conclusion of the hearing that the appellant had offered to the respondent an agreement to be bound over to keep the peace in exchange for the respondent's agreement not to proceed with the trial of the issue, but that that offer had not been accepted by the respondent.

No cases were cited to us in the course of the hearing, but we have been referred by solicitors acting for the appellant to a comment in the judgment of Lord Justice McCowan in R v Middlesex Crown Court ex p Khan (1997) 161 JP 240 that -

' ..... if a judge is going to require a man to be bound over in circumstances where he has been acquitted, it is particularly important that he should be satisfied beyond a reasonable doubt that the man poses a potential threat to other persons and that he is a man of violence.'

We should make it clear that on the evidence heard by us in this matter we were so satisfied."

20. As to the decision to refuse a defendant's costs order, the justices stated:

"We were of the opinion that, in view of our finding that the appellant's conduct had been reprehensible, he had brought the prosecution upon himself, and that it would be inappropriate to order him to be awarded his costs from central funds in all the circumstances. Although not relied upon for our decision at the time, we consider that the appellant may consider himself fortunate not to have been charged with an offence under Section 4 of the Public Order Act 1986, to which (on our findings of fact) there would have been no defence. We were of the opinion that in all the circumstances the defendant's conduct was such as to amount to a positive reason for not making an order, notwithstanding that this is not one of the examples of positive reasons mentioned in the Practice Direction (Costs: Criminal Proceedings) [2004] 2 All ER 1070 at paragraph II 1.1, and note the direction in paragraph II 2.1 that -

'Whether to make such an award is a matter in the discretion of the court in the light of the circumstances of each particular case.'"

21. The justices then go on to pose the following questions:

"1 Were we correct in finding that there were grounds for binding the appellant over to keep the peace notwithstanding that we had acquitted him of the offence with which he had been charged?

2 Were we entitled in view of our findings of fact and in all the circumstances of the case to find that there were positive reasons for not making an order under Section 16 of the Prosecution of Offences Act 1985 in favour of the appellant?"

The law

22. As to binding over, generally a binding over to keep the peace is typically only warranted where there is evidence of likely personal danger to others involving violence or the threat of violence (see, for example, Percy v Director of Public Prosecutions [1995] 3 All ER 124).
23. As to an acquitted defendant, in the case to which the justices referred - R v Middlesex Crown Court ex p Khan (above) - this court, comprised of McCowan LJ and Collins J, considered the issue of binding over an acquitted defendant in the Crown Court. The principles obviously apply equally in the Magistrates' Court. At page 243 of the report, McCowan LJ agreed with counsel's proposition that in such circumstances the court must be satisfied beyond reasonable doubt that the person poses a potential threat to other persons and that he is a man of violence. In agreeing, Collins J added on the same page:

" ..... I would underline what my Lord has said about the practice of binding over following an acquittal, where there has been, as there was here, an acquittal on the merits. It is exceedingly rare that it would be appropriate to bind over the defendant who had been acquitted ..... "

24. The Consolidated Criminal Practice Direction at paragraph III.31, which came into force on 2 April 2007 and is plainly premised upon decisions of the European Court of Human Rights (as paragraph 31.1 makes clear), provides the code upon which consideration of making binding over orders must be premised. The relevant parts of the code for the purposes of this case are follows:

"31.2 Before imposing a binding over order, the court must be satisfied that a breach of the peace involving violence, or an imminent threat of violence, has occurred, or that there is a real risk of violence in the future. Such violence may be perpetrated by the individual who will be subject to the order, or by a third party as a natural consequence of the individual's conduct.

31.3 In light of the judgment in Hashman and Harrup, courts should no longer bind an individual over 'to be of good behaviour'. Rather than binding an individual over to 'keep the peace' in general terms, the court should identify the specific conduct or activity from which the individual must refrain.

31.4 When making an order binding an individual over to refrain from specified types of conduct or activities, the details of that conduct or those activities should be specified by the court in a written order served on all relevant parties. The court should state its reasons for the making of the order, its length and the amount of the recognisance. The length of the order should be proportionate to the harm sought to be avoided and should not generally exceed 12 months.

.....

31.8 The court should be satisfied beyond reasonable doubt of the matters complained of before a binding over order may be imposed. Where the procedure has been commenced on complaint, the burden of proof rests on the complainant. In all other circumstances the burden of proof rests on the prosecution.

.....

31.11 When fixing the amount of the recognisance the court should have regard to the individual's financial resources and should hear representations from the individual or his legal representatives regarding his finances."

25. As with all bindings over Mr Emohare had to give his consent albeit that the alternative was the likelihood of a committal to custody.
26. Whilst Section 1 of the Magistrates' Court (Appeals from Bindings Over Orders) Act 1956 provides an ability to appeal to the Crown Court, it does not, of course, preclude an appeal by way of Case Stated instead.
27. As to costs, Section 16 (1) (c) of the Prosecution of Offences Act 1985 provides that where a Magistrates' Court dismisses an information it may make a defendant's costs order. The breadth of the resultant discretion is circumscribed by the Practice Direction (Costs: Criminal Proceedings) [2004] 2 All ER 1070, and in particular by paragraphs II 1.1, 1.2 and 2.1. The relevant aspects of these are as follows:

"II 1.1 Where an information laid before a justice of the peace charging a person with an offence is not proceeded with, a magistrates' court enquiring into an indictable offence as examining justices determines not to commit the accused for trial, or a magistrates' court dealing summarily with an offence dismisses the information, the court may make a defendant's costs order ..... As is the case with the Crown Court ..... such an order should normally be made unless there are positive reasons for not doing so. For example, where the defendant's own conduct has brought suspicion on himself and has misled the prosecution into thinking that the case against him was stronger than it was, the defendant can be left to pay his own costs. In the case of a partial acquittal the court may make a part order.

II 1.2 Whether to make such an award is a matter in the discretion of the court in the light of the circumstances of each particular case.

.....

11 2.1 ..... The court when declining to make a costs order should explain, in open court, that the reason for not making an order does not involve any suggestion that the defendant is guilty of any criminal conduct but the order is refused because of the positive reason that should be identified."

28. Whilst the example given in paragraph II 1.1 is only an example, it is narrowly drawn in conjunctive terms because of the need to respect the presumption of innocence both at common law and under Article 6 of the European Convention on Human Rights. That need is emphasised in cases such as R v South West Surrey Justices ex p James [2000] Crim LR 690 (Lord Bingham CJ and Astill J).

The merits

29. As to the binding over, it is clear that at the time of the hearing the justices' attention was not drawn to the Consolidated Practice Direction that governed - or should have - governed their exercise of the power to bind over, nor to the principles in the authorities to which I have already made reference, in particular ex p Khan (above).
30. Reliance ex post facto on the discovery that whilst he was at risk of conviction the defendant had offered to be bound over instead is insufficient, as is the assertion that having since had ex p Khan drawn to their attention the justices were satisfied beyond a reasonable doubt that Mr Emohare was a man of violence who posed a threat to others.
31. That last proposition is wholly undermined by the justices own findings of fact, which went no further than that, when stopped, Mr Emohare was aggressive in his demeanour and attitude and objected to being searched, and that the contact between his head and Police Constable Drake's might have been an involuntary reaction to pain - that is an accident. It follows that - quite apart from all the procedural defects arising from non-compliance with the Consolidated Practice Direction, combined with the fact that the court was not aware of the requisite principles either as set out in ex p Khan or the Practice Direction itself - there was, in reality, simply no proper basis whatsoever upon which to have made the binding over order.
32. As to costs, the justices' order was premised on the fact that Mr Emohare had brought the prosecution upon himself. Whilst recognising that this does not appear in the relevant Practice Direction as an example of a positive reason not to make an order, the justices nevertheless thought it right to refuse to make an order on that basis.
33. In the Case Stated the justices also point out that, although not part of their thinking at the time, Mr Emohare might consider himself fortunate not to have been charged with an offence contrary to Section 4 of the Public Order Act 1986 to which, in their view, he had no defence.
34. In my judgment such thinking is wholly contrary to the reason why the exceptions to the general rule that a defence costs order should be awarded after an acquittal must be narrowly drawn. Such thinking flies in the face of the decisions of the European Court of Human Rights in cases such as Minelli v Switzerland (1983) 5 EHRR 554 when the court stated at paragraph 37:

"The presumption of innocence will be violated if, without the accused having previously been proved guilty according to law, and notably without his having had the opportunity of exercising his rights of defence, a judicial decision concerning him reflects an opinion that he is guilty. This may be so in the absence of any formal finding. It suffices that there is some reasoning suggestive that the court regards the accused as guilty."

35. On the justices' own findings of fact, Mr Emohare had nothing to do with the hand bag snatch and - however disagreeable his reaction to having been questioned and searched in relation to it - the justices' own findings were upon the basis that it was reasonably possible that his head movement was entirely involuntary in reaction to pain. In other words, as I have already touched on, that it was reasonably possible that what happened to Police Constable Drake was nothing more than an accident. Putting aside any procedural deficiencies arising from not following paragraph II 2.1 of the Practice Direction, this was not a proper basis - whether in fact or in law - to refuse to make a defendant's costs order.
36. Likewise the ex post facto rationalisation that Mr Emohare was guilty of a public order offence with which he had never been charged, and never had the opportunity to deal, and that he was fortunate not to have been charged with it, is thinking which, for the reasons I have touched on already and I repeat, is in wholly inappropriate conflict with the presumption of innocence which should have applied.

Conclusion

37. I would therefore answer both questions stated in the case no.
38. LORD JUSTICE GOLDRING: I agree.
39. Mr Emohare, we therefore quash the bind over order. We quash the order that there be no order for costs. We order that you should have your costs, both of this hearing (which I suspect will not amount to much) and before the magistrates, paid for from central funds.
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