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
		15 February 2012

1. MR JUSTICE IRWIN: On 11 February 2010, the claimant and a lady who subsequently became the complainant were involved in an argument whilst both were driving. The complainant's account amounts to this: the claimant, Mr Jefferies, was driving behind her, road conditions were poor, and she suspected that there was ice on the road. She had her young daughter in her car and she was travelling slowly. The claimant, she said, became impatient, hooted, and then overtook her. Shortly after that both vehicles arrived at traffic lights which were on red and so both vehicles stopped.
2. The complainant then gave evidence to this effect: that Mr Jefferies left his vehicle and stormed back towards her car, shouting abusively at her. She anticipated that he would try and open her car doors, but she managed to lock them in time, and thus pre-empted him, as she says that he did in fact try to open her car doors. After his abusing her from outside, she then drove off.
3. The lady rang the police. On her own account, she was calm with the police, something the claimant says would help in his case because he said that if she was frightened by him she would not have been able to be calm. The police took a statement from her over the telephone. Then later in the day an officer visited Mr Jefferies at home in order to deliver a Fixed Penalty Notice for an offence under section 5 of the Public Order Act 1986. The claimant refused to accept the notice and chose to be tried. By the time he was tried before Magistrates, he was represented by a solicitor, something which he subsequently said was unnecessary, but nevertheless he was so represented.
4. The Crown Prosecution Service considered the facts and by then concluded that the appropriate charge was a charge under section 4 a) of the Public Order Act 1986, using threatening, abusive or insulting words or behaviour with intent to cause harassment, alarm or distress. The Magistrates convicted. The claimant appealed to the Crown Court and the appeal was heard on 15 December 2010. The tribunal in the Crown Court consisted of HHJ Moss and two justices. The function, of course, was to re-hear the case from the beginning. They did indeed do that and they upheld the conviction.
5. The claimant advances, or seeks to advance, four complaints in relation to this hearing. However, before touching on those it is helpful to complete the procedural history. The claimant asked the Crown Court to state a case. HHJ Moss refused to do so on the grounds that the application was frivolous or vexatious. The claimant seeks judicial review of that decision. In fact, Judge Moss did subsequently write, explaining his decision and his approach on the relevant points, and so the Crown Court's thinking is clear. The Single Judge gave permission for judicial review on one ground only: namely, that the court had declined to admit to the convictions of the complainant in the case. The other complaints which Mr Jefferies sought to advance were all dismissed, rightly, by the Single Judge and it is not necessary to go into them.
6. The facts in relation to this ground can be summarised as follows. Firstly, by reference to the account of the Judge who said this:

"An important factor in our ruling that her previous convictions were inadmissible, was that throughout this incident, she remained seated in her car, in the driver's seat. Those 3 convictions were for affray; assault on police, and making off without payment. Mr Jefferies accepted that she did not get out of her car - hence our reasoning that none of the 3 convictions was relevant - or admissible".

7. It is clear from that account from the Judge that the Crown Court were operating on a misunderstanding of the facts which favoured the position of Mr Jefferies. It seems likely that the official printout of the convictions of the criminal record of the lady complainant was not available to the Crown Court. Mr Jefferies has illuminated this today. It seems likely that a telephone check was made, someone looked at the official record and relayed to the court and to Mr Jefferies the suggestion that there were three convictions, as he summarised in that note. In fact, the lady only has one previous conviction, for an offence of affray dating from 1998. The other matters, which were said to be convictions at the time were matters where she had been investigated to some degree, but it was concluded by the officers handling those matters that there was no basis to charge her. She was never charged with any other matter, never mind convicted of it. Nevertheless, the factual position does appear to be that on that erroneous basis, that there were in fact three convictions, the Crown Court declined to admit the convictions as not being helpful to the case.
8. There was a letter of 12 January from the court, in which the position was set out. The letter states:

"...Obviously the bench [meaning the Judge and Justices of the Crown Court] was aware of the detail in order to assess Mr Jefferies' application. We ruled that her previous convictions were NOT relevant to the issues in the present case; either because they were too old - or irrelevant or both."

That letter is confirmatory of the position as set out by the Judge in his own written response.

9. The claimant says that the conviction, or convictions as he believed them to be, should have been taken into account. The law is clear on a number of points. Firstly, there is a gateway for the admission of the bad character of a witness who is not a defendant under the Criminal Justice Act 2003. The relevant gateway here is section 100 (1) of the Act, which in its relevant parts reads:

"In criminal proceedings evidence of the bad character of a person other than the defendant is admissible if and only if -

...(b) it has substantial probative value in relation to a matter which -

(i)is a matter in issue in the proceedings, and

(ii)is of substantial importance in the context of the case as a whole..."

10. Here, even accepting that the account given by the complainant was of substantial probative value, and/or was a matter in issue in the case and was of substantial importance in the case as a whole, the credibility of the complainant does not constitute those matters. Credibility is important and bears on those issues but it does not itself constitute the issue in question.
11. Even if one assumed that it did, the nature of this single conviction does not bite on credibility. There is no suggestion of any conviction involving an ingredient of dishonesty which would bite on the credibility of the complainant witness. In the context of the agreed finding that the lady never left her car, and her own account that she locked the doors, it is in my judgment entirely understandable that the court did not consider the conviction for affray or, even if they brought them into account, the other convictions, to be relevant in terms of propensity. Whilst on other facts a conviction for affray might show propensity for aggression, that is no help here, for the reasons that the Judge has explained. I cannot see for myself how this conviction could be of "substantial importance in the case" in these facts.
12. Moreover, I am reminded of the decision of this court in the case of R v Renda [2006] 2 All ER 553, where the Court of Appeal (Criminal Division) emphasised that it would be rare where the decision or ruling arising from the bad character provisions of the Act would be interfered with, where the appellant Judge, conducting a re-trial, had properly exercised the discretion which resides in the court whether or not to admit bad character evidence.
13. For those reasons, this application is dismissed. There is nothing in the application because it was not wrong to refuse the stated case here.
14. LORD JUSTICE GROSS: I agree. Thank you.
15. MR GULLICK: My Lord, just couple of points on Mr Justice Irwin's judgment. My Lord, Mr Justice Irwin said that the complainant's case was that the complainant drove behind her. I think that should be the claimant drove behind the complainant.
16. MR JUSTICE IRWIN: The claimant did drive behind the complainant.
17. MR GULLICK: My Lord, yes. I think your Lordship said that the complainant's case was that the complainant drove behind her.
18. MR JUSTICE IRWIN: That's for the transcript, yes.
19. MR GULLICK: Also, section 4 of the Public Order Act, it is section 4 a) in this case.
20. LORD JUSTICE GROSS: Thank you very much.
21. MR GULLICK: My Lord, can I apply for costs on behalf of the Crown Prosecution Service?
22. LORD JUSTICE GROSS: You can apply.
23. MR GULLICK: In my submission, costs should follow the event in this case. The claimant has lost his claim for judicial review.
24. LORD JUSTICE GROSS: What are you asking for?
25. MR GULLICK: Simply my costs. Can I hand up a schedule. I have to accept it was not served on Mr Jefferies until I gave it to him this morning and it hasn't been served on the court. (Handed).
26. LORD JUSTICE GROSS: A certain degree of persuasion has been exercised by this court to get the final criminal record. Speaking for myself, I have a degree of sympathy with Mr Jefferies's irritation at the mutations through which the record went before we finally got to the position we are now in.
27. MR GULLICK: I can't dissent from your Lordship's point that it took some time to arrive at the final conclusion as to the record.
28. LORD JUSTICE GROSS: Yes.
29. MR GULLICK: I would simply say that your Lordships' judgments have found that even if the error in Mr Jefferies's favour had been the position, nonetheless, Mr Jefferies would have lost.
30. LORD JUSTICE GROSS: Something unsatisfactory about the way in which it was dealt with.
31. MR GULLICK: I now, as regards to Mr Jefferies having provided the handwritten note this morning, realise what has happened in this case. I will of course relay your Lordship's comments to those who instruct me.
32. MR JUSTICE IRWIN: The situation might very well be that had the Single Judge been aware of what had happened, permission would not have been granted.
33. MR GULLICK: I will also relay that comment.
34. MR JUSTICE IRWIN: Also, Mr Gullick, speaking for myself, I wish I had 12 hours 15 minutes to prepare this case. 12 hours 15 minutes?
35. MR GULLICK: Not only did I have to research the matter and draft the skeleton argument but also photocopy the authorities' bundles which involved some time in the library.
36. LORD JUSTICE GROSS: Yes, I understand that. Somebody had to do the work for this case.
37. MR GULLICK: My Lord, indeed.
38. LORD JUSTICE GROSS: And that fell to you.
39. MR GULLICK: Ultimately, my Lord.
40. LORD JUSTICE GROSS: We will rise very briefly. We haven't heard from Mr Jefferies. Mr Jefferies, I assume you do not want to pay costs?
41. THE CLAIMANT: Absolutely, my Lord.
42. LORD JUSTICE GROSS: If you have to pay any costs you would rather pay less than they are asking for.
43. THE CLAIMANT: Most certainly.
(A short adjournment)
44. LORD JUSTICE GROSS: We have, a few moments ago, dismissed the claimant's application. Mr Gullick, for the Crown Prosecution Service, as interested party, now seeks costs. In the ordinary way we would have been minded to accede to that application with possibly a very limited adjustment on the basis that costs follow the event and the CPS has been successful in resisting the application today. But we are somewhat troubled by the manner in which the case proceeded. Putting it very shortly and without repeating the reasons which my Lord gave a little while ago, it was not until very recently that the true position as to the claimant's antecedents was established, and then only after some pressure from this court. Errors were made as to how the matters were summarised at the Crown Court and continued for sometime thereafter, as seen in the acknowledgement of service. It is possible, though we could put it no higher, that had those errors been corrected, a Single Judge may not even have given permission in that the error as to convictions was, if anything, in the claimant's favour.
45. In all those circumstances we are not inclined to give the CPS its costs in the sum which it has sought. We think, however, that as it has succeeded, it should get some costs. The way in which we seek to do justice in the matter, and also to reflect the fact that the work in this case has been done by Mr Gullick of counsel who appeared this morning, we would make an order in the following terms: the CPS is to get the sum for Mr Gullick's attendance today, that's £165 in full. The CPS should also get -- instead of the £1,176 claimed for preparation -- the CPS should get £500, but we emphasise that that total of £665 reflects, on the material available to us, work done by Mr Gullick himself, rather than others, and for our parts, so far as it is a matter for us, we would expect that full amount to go to Mr Gullick. The order however is made in favour of the CPS. It is in a reduced amount to reflect our concerns with the way in which the manner was handled until very recently.
46. Thank you very much.
47. LORD JUSTICE GROSS: Do you want an order for time?
48. MR GULLICK: It is a matter for my Lordships, whether you want to extend the usual 14-day period.
49. LORD JUSTICE GROSS: Twenty-eight days. Thank you.