England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		6 March 2015

1. SIR STEPHEN SILBER:
2. introduction
3. Daniel Brooks appeals by way of case stated against a decision of the Justices for the County of Sussex sitting in Brighton, to convict him of the offence of battery contrary to section 39 of the Criminal Justice Act 1988.
4. The question for the opinion of this court is:

1. "Did we apply the correct test in law when we considered whether the prosecution has proved beyond reasonable doubt that the appellant was not acting in lawful self defence when he pushed Mr Wales?"

5. The case for the appellant is that the answer must be in the negative, while the respondent says it should be in the affirmative.
6. The case stated notes the findings of the magistrates, which were that Mr Wales and the appellant knew each other before the date of the incidents. They had been friends, but there had been a falling out in the summer of 2011, and Wales had alleged the appellant had stolen some money from them.
7. Mr Wales had been involved in a motorcycle accident 3 months before the incident which gave rise to the case in the Magistrates Court, as a result of which he had suffered some memory problems, he had some brain damage, and he had to retrain his body to use certain muscles. He had had an operation on one leg and he used a walking stick regularly.
8. The appellant would have been aware of Mr Wales' accident and the fact that he often used a walking stick, and the appellant was about 3 inches taller than Mr Wales.
9. The magistrates found that both the gentlemen found themselves in London Road in Brighton at about 5.15pm on 1 December 2011. The appellant walked past Mr Wales in the street and Mr Wales called the appellant "a fucking cunt" as he passed.
10. As a result, the appellant turned back and walked quickly towards Mr Wales to confront him, and the appellant shouted loudly: "You are a fat fucking spastic" directly at Mr Wales, and was grinning whilst he said those words. Mr Wales look startled and stopped. The appellant walked deliberately towards Mr Wales, and said again "fucking spastic".
11. The appellant was the aggressor at this stage. Mr Wales raised his walking stick and held it with both hands below his neck, not in an aggressive way.
12. The magistrates said:

i. "We did not consider this action was made in an aggressive way. The stick was held close to his body in a protective stance, rather than an aggressive stance. The stick was not raised as it was about to hit the appellant. The appellant did not honestly believe he was about to be hit with the stick."

13. The magistrates recorded that the appellant pushed Mr Wales in the shoulder with sufficient force ao that he fell backwards. At the hearing, it was contended the appellant had acted in self defence when he pushed Mr Wales in the chest, as he believed Mr Wales was about to use the stick on him.
14. The magistrates then set out the legal advice that they had received, which was basically explaining there were two main questions for the magistrates to answer, which were:
15. Firstly, did the defendant believe or may honestly have believed that it was reasonable to defend himself?
16. Secondly, taking the circumstances as the defendant believed them to be, was the amount of force that he used reasonable?
17. The magistrates then found the defendant guilty of the assault of beating and they gave the following reasons:

i. "5. [...] The relevant disputed issues in this case are: Was this self defence? Did Mr Brooks believe that it was necessary to defend himself?

ii. Our findings on the disputed issues: Although Mr Wales held his walking stick in front of himself as shown in court we feel that Mr Brooks being more fit and agile than Mr Wales could have walked away from Mr Wales. Mr Brooks used sufficient force to knock Mr Wales off balance and fall over. We believe the independent witness Mrs Rowden and her account of the words used by Mr Brooks prior to the assault. The evidence of Mrs Rowden was that Mr Wales fell on his back or side. We are unclear as to how the injury to the knee happened."

18. submissions
19. Ms Alison Pryor, who appears on behalf of the appellant has contended that the justices erred in law by rejecting the appellant's defence of self defence solely on the basis of their conclusion that the appellant was more fit and agile than the complainant and could have walked away.
20. Her second ground of appeal is that the justices failed to apply the correct legal test in their reasons, in that they failed to address the question of whether in all the circumstances, the appellant honestly believed or may honestly have believed that it was necessary to defend himself.
21. As the background to her submissions, she reminds me that in Beckford v The Queen [1988] AC 130, Lord Griffiths giving the judgment of the Judicial Committee of the Privy Council said:

i. "The test to be applied for self defence is that a person may use such force as is reasonable in the circumstances as he honestly believes them to be in the defence of himself and another [...]"

22. She also reminded me there is no general proposition that a person who is responsible for a pre-emptive strike against an attacker is not entitled to rely on self defence. She refers again to Beckford and also to the case of R v Bird 1985 2 All ER 513, where it is said there was no duty to retreat because it is explained at page 516 letters (a) to (f) that:

i. "Evidence that the defendant tried to retreat or tried to call off the fight may be a cast-iron method of casting doubt on the suggestion that he was the attacker or retaliator or the person trying allege himself. But it is not by any means the only means of doing that."

23. In support of her first submission, Ms Pryor says that it was not clear from the justices' finding precisely what it was that led them to reject the defence of self defence. She says that the proper interpretation is that the magistrates found that having concluded that the appellant could have walked away, the justices concluded that there was no need for him to defend himself.
24. She criticises the reliance on the duty to retreat, which she says is inconsistent with what is being said in Bird(supra) and Beckford(supra).
25. In support of her second ground, she contends that the approach at the Magistrates' Court was to apply an objective rather than a subjective test and therefore, to that extent, the magistrates were wrong. She places great emphasis on the wording of paragraph 5 of the decision, which I have just read out.
26. In response, Mr Jones says everything has to be considered in the light of the facts that they found and in particular, the fact which I have already read out which was that:

i. "The appellant did honestly believe that he was about to be hit with the stick."

27. It is quite clear that the only attack that he was fearing was being attacked with a stick, so Mr Jones says the first part of the test for self defence has not been satisfied and therefore that had to be rejected.
28. Ms Pryor's response to that is: 'Well, that is not in the reasons that they gave in paragraph 5.' That indeed is correct, but she accepts that if those words in paragraph 2(a) which (I have just read out) that the appellant did honestly believe that he was about to be hit with the stick had been included at paragraph 5, that she would have very great difficulties, in my view, insurmountable difficulties, in pursuing the appeal. Indeed, in my view, it would be unrealistic to look at the reasons of the magistrates just by looking at paragraph 5 and ignoring the other reasons which they have given.
29. conclusion
30. Therefore, for those reasons I have come to the conclusion that the answer to the question posed is in the affirmative, with the result that this appeal has to be dismissed.
31. I am grateful to both counsel for their help, thank you very much.