England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		The Courthouse 1 Oxford Row Leeds West Yorkshire LS1 3BG
		3rd October 2013

1. MR JUSTICE SUPPERSTONE: Mr Croke, who appears in person, renews his application for permission to challenge the decision of the Crown Court (the Recorder of Leeds sitting with two lay justices) to refuse to state a case following the dismissal by the court on 27th July 2012 of his appeal against conviction by the Leeds Magistrates' Court of two offences of assault by beating, battery, contrary to section 39 of the Criminal Justice Act 1988 of two security guards, Mr Holmes and Miss Barass, who were escorting him off the Great George Street premises of Leeds City Council, he having been previously barred by the council from the premises, or at least, on his understanding, from part of the premises.
2. The reasons for refusal to state a case appear to have been in the standard form, namely the application was frivolous and vexatious. I say "appear to have been" because no copy of the certificate of reasons was retained by the court. However, Mr Croke has confirmed that the reasons were in the standard form. He informs me that the Recorder added in manuscript that there was no satisfactory basis for the request.
3. Mr Croke submits that it is clear from the transcript of the Crown Court judgment dismissing the appeal, that the court failed to consider three defences that he raised to the charges against him, namely a mistake, non insane automatism and self defence. However, Mr Croke, during the course of his oral submissions, informed me that whilst self-defence was raised by counsel at the Magistrates' Court, he accepts that, as his case was that he was unconscious, it was, to use his words, "difficult" to run that defence.
4. As for the defence of mistake, Mr Croke says that the incident did not occur in a part of the premises that he had been barred from or, at worst, he made a mistake about that part of the building he was allowed to go into, so when he was stopped he reacted as he did.
5. Finally, the defence of non insane automatism: Mr Croke says that that was not put forward in the Magistrates' Court but he raised it in the Crown Court and suggested that being choked led him to become unconscious, which in the process caused him not voluntarily to struggle. This, he understood, amounted to the defence of non insane automatism.
6. Mr Croke's case is that he was unconscious at the time of the alleged assaults. If that is accepted, the defence of non-insane automatism arises for consideration. If that is not accepted and he is found to have been conscious, then the defences of self-defence and mistake arise for consideration. Mr Croke submits that the court was obliged to give reasons for its decision and that it failed to do so. He referred me to paragraph 2-202 in the latest edition of Archbold in this regard.
7. In my judgment, it is clear from the transcript that the court reviewed with care the evidence that it heard. At pages 7 to 8 of the transcript, having reviewed the material evidence, the Recorder continued:

"Having weighed it all up and thought very carefully about it, we reject Mr Croke's account of what he says happened to him. We find it incredible that he would be subject to a choke hold rendering him unconscious and that when he came round from unconsciousness, as a result of the phone vibrating for a period in his pocket, his first action would be to call the councillor and make the complaint which is what he says he did. He said to us: 'Well sometimes you do not do that which with hindsight you would think would be the natural thing to do.' But we have no doubts that although Mr Croke has made many complaints in the course of this matter, we are quite sure that if he had been assaulted in the way that he says he was he would have put concern for his own health and safety before any concern to complain to a councillor about an attack upon him and his rights. We are, as I say, satisfied about the truthfulness of the accounts we have heard from Mr Holmes and Miss Barass in particular."

The court concluded:

"In those circumstances we are satisfied so that we are sure that each of the assaults that is alleged against him was committed by the appellant and therefore the appeals against these convictions are dismissed."

8. Refusing permission to apply for judicial review on the papers, King J observed:

"On the account given by the prosecution witnesses, accepted by the court, defences now said not to have been considered by the court, namely that of mistake non insane automatism and self-defence could not have arisen."

I agree.

9. In the claim form Mr Croke states that an issue arises under Article 6 of the Human Rights Act. Mr Croke has referred to the well-known principle that "justice not must only be done but must manifestly be seen to be done". He says that the Recorder asked counsel for the Crown as to the procedure to be adopted on the appeal and counsel said that:

"Procedures prevent the Crown from restating its case."

It is not clear what is meant by that statement. Mr Croke correctly made the point that the appeal must be a rehearing. He submitted that a full rehearing did not take place and there was a breach of Article 6 because Crown witnesses did not give evidence in-chief orally. As I understand it, their witness statements stood as their evidence in chief and they were then cross-examined by Mr Croke. Assuming for present purposes that this was the procedure that was adopted, I do not consider that there is an arguable breach of Article 6. Mr Croke informs me that he did not object to the procedure. He does not suggest that his cross-examination of the witnesses was curtailed in any way. There is no indication that he did not have proper time to prepare his cross-examination or his case as a whole. It is clear to me from the transcript that this appeal was conducted on the basis of a rehearing and the court gave careful consideration to the evidence of the prosecution witnesses and truthfulness of that evidence. In my judgment, none of the matters raised by Mr Croke as amounting to a breach of Article 6 are arguable. For the reasons I have given, permission to apply for judicial review is refused.

10. MR JUSTICE SUPPERSTONE: Mr Croke, thank you for your submissions. I appreciate the result will be disappointing for you.
11. THE CLAIMANT: Nonetheless my Lord, would it now be appropriate to make the submission that I alluded to you as you were about to retire?
12. MR JUSTICE SUPPERSTONE: I do not know what submission you are referring to. I did not understand you were going to make any submission. I think what you said to me was that if you were unsuccessful then you wished to say something. So certainly if you want to say something please do.
13. THE CLAIMANT: Thank you my Lord. In the skeleton argument as supplied to the court, bottom of page 6 and particularly the first paragraph of page 7.
14. MR JUSTICE SUPPERSTONE: Let me just pick that up. Not the one that you handed to me this morning.
15. THE CLAIMANT: No the original.
16. MR JUSTICE SUPPERSTONE: There are two or three other skeleton arguments. So let me...
17. THE CLAIMANT: The one this morning was really a copy for the court's convenience, what I was to say in elaboration.
18. MR JUSTICE SUPPERSTONE: This is 5A and 5B. No, 6 and 7, yes certainly.
19. THE CLAIMANT: At point 14 there are several other matters. The final paragraph on page 6 relating to the matter being referred to the Supreme Court which your Lordship has decided not to do.
20. MR JUSTICE SUPPERSTONE: No, I have not said anything about the Supreme Court, what I have done is refused permission to apply for judicial review. If you wish to take this matter further then that must be a matter for you.
21. THE CLAIMANT: It appears that, at that stage, I have run out of process but, in making your Lordship's decision, this court becomes the court of final determination. The court of final determination, whichever court that may be, is obliged, if an application is made to it, to seek advice and guidance from the European Court under Article 307 which was formally 234 of the Treaty of Rome. Any court at any level may choose to seek guidance. There is a case in my studies where even a Magistrates' Courts sought guidance on a matter of forced extradition.
22. MR JUSTICE SUPPERSTONE: Having decided that your application is not arguable I would not be minded to seek guidance.
23. THE CLAIMANT: It was my understanding my Lord, that having made the application the court is obliged to seek guidance.
24. MR JUSTICE SUPPERSTONE: I do not understand that to be the position and if you wish to enquire as to whether you can take the matter further or how you can proceed with the matter, that obviously must be a matter for you. But there is no further order that I am obliged to make or propose to make.
25. THE CLAIMANT: I am grateful for your Lordship's consideration.
26. MR JUSTICE SUPPERSTONE: Thank you very much and thank you Mr Croke for the way you have put your case.
27. THE CLAIMANT: Would it be possible, my Lord, to have a transcript of your judgment at public expense?
28. MR JUSTICE SUPPERSTONE: I think a transcript of the judgment will be produced in any event, but I order that it should be.
29. THE CLAIMANT: I am obliged.