Hamer, R v

J U D G M E N T

Tuesday 17 August 2010

LORD JUSTICE THOMAS:

INTRODUCTION

1. On 11 July 2008 the appellant and a taxi driver had a fight. It was the Crown's case that the appellant assaulted the taxi driver by striking him in the mouth which resulted in significant injury to his front teeth. It was the appellant's case that he acted in self-defence and that the injury to the taxi driver came about through accident or through some other cause, but that it was certainly not his aggression.

2. The appellant was charged and committed for trial on 19 December 2008. It is a matter of regret that the trial did not take place for over a year. On 12 January 2010, in the Crown Court at Harrow, before his Honour Judge Holt and a jury, the appellant was convicted of assault occasioning actual bodily harm.

3. The appellant had no previous convictions or cautions. However, on 7 October 2008 he had been issued with a Penalty Notice for Disorder ("PND") by the Metropolitan Police. Counsel on behalf of the appellant and the Crown both proposed to put before the jury a formal admission that the appellant had no previous convictions or cautions. Counsel for the Crown very properly told the judge that the appellant had been issued with a PND. The judge indicated that he was prepared to give a good character direction, but only if the jury were told that the appellant had been issued with a PND, although the details should not be given because he considered that they were prejudicial. He said that he would tell the jury that they might think it totally irrelevant, but they were to be given the full picture. Before the appellant gave evidence, an admission was read to the jury to the effect that the appellant had no previous convictions or cautions and that

"On 17 October 2008 [the appellant] was issued with a Fixed Penalty Notice in relation to an alleged minor public order offence."

The appellant then gave evidence.

4. The evidence having been given on a Friday, over the weekend counsel for the appellant diligently considered the matter again. On the Monday he made a further submission to the judge, but the judge upheld the decision that he had made.

5. When he came to sum the matter up to the jury, the judge gave a good character direction, but he added this:

"You have heard about the [appellant]. You know he is a man of 47 years old. You have heard that he has one very minor matter; the lowest possible rung of the criminal justice system; a fixed penalty for a minor public disorder.

Having heard about that, members of the jury, you may think the fair thing to do is just forget about it. It is right that you are told and so nothing is withheld from you, but you may think that the fairest thing to do is to treat this man as a man of good character."

6. At the conclusion of the summing-up the jury retired to consider their verdict. After a retirement of about four hours they returned with a verdict of guilty. The appellant was subsequently sentenced to twelve months' imprisonment suspended for two years, but with conditions of a curfew and alcoholism treatment. He now appeals against conviction by leave of the single judge on two grounds. Both relate to the PND: first, that the judge was wrong to admit the evidence of the PND; and secondly, that his direction to the jury in the passage which we have set out above was wrong.

7. We turn first to whether the evidence of the PND should have been admitted.

FIXED PENALTY NOTICE AND PENALTY NOTICES FOR DISORDER

8. Fixed Penalty Notices, including PNDs, were introduced by the Criminal Justice and Police Act 2001 for certain offences specified in section 1 of that Act. These are called “penalty offences” and include an offence under section 5 of the Public Order Act 1986, namely behaviour likely to cause alarm or distress. By section 2 of the Act, a police officer who has reason to believe that a person aged 18 or over has committed a penalty offence may give him a penalty notice in respect of the offence.

9. A penalty notice is defined as:

"a notice offering the opportunity, by paying a penalty in accordance with this Chapter, to discharge any liability to be convicted of the offence to which the notice relates."

The content of the notice is specified by section 3. Sections 4 and 5 make it clear that if the penalty is paid within 21 days no proceedings may be brought for the offence. It also sets out the right of the person issued with the notice to go to court to challenge the notice. The Act also provides by section 6 that the Secretary of State may issue guidance in respect of penalty notices.

10. The Guidance issued by the Secretary of State in the form of a booklet in 2005 sets out the aim and purposes of the scheme as follows:

"1. To offer operational officers a quick and effective alternative means of dealing with low-level, anti-social and nuisance offending.

2. To deliver swift, simple and effective justice that carries a deterrent effect.

3. To reduce the amount of time that police officers spend completing paperwork and attending court, whilst simultaneously reducing the burden on the courts.

4. To increase the amount of time officers spend on the street and dealing with more serious crime."

The booklet contains guidance as to the circumstances in which the police can issue such notices. It specifies a form of notice to which we will in a moment refer. Under the heading "Crime Recording" it sets out the following:

"The Penalty Notice for Disorder scheme is a positive means of disposal in dealing with recorded crime and reportable offences, and is a major contribution towards narrowing the justice gap.

In order that the integrity of the penalty notice scheme is maintained, reporting and recording of relevant offences must be carried out in accordance with the Home Office counting rules and individual force policies."

11. Although we do not have a copy of the Penalty Notice for Disorder issued to the appellant, we have a copy of the form in use at the time; it made clear two matters: first, that if the penalty was paid, then the proceedings would not be brought; and secondly, the person to whom the notice was issued could challenge it. It then provided:

"A record of this notice will be kept in the interests of justice for administrative purposes. This information may be used to help decide whether or not to issue you with another disorder penalty notice in relation to any subsequent offences for which such notices may be issued."

12. The fixed penalty notice scheme was commented on by this court in R v Gore and Maher [2009] EWCA Crim 1424, where Lord Judge CJ, in giving the judgment of the court, stated:

"11. The penalty notice scheme provides a useful method for dealing with low level crime, for example, the sort of public disorder which occurs in city centres at night, which is troublesome and anti-social, without involving serious criminality. Payment of the penalty involves no admission of guilt on the part of the person to whom it is given, nor does it create a criminal record. These are important limitations."

13. It is clear, in our view, that the scheme was intended to deal with suspected low-level offending and to provide the police with a means of punishing those whom they suspected, with the option given to the person to whom the notice was issued to go to court if he did not wish to pay a penalty. Furthermore, from the number of such notices which have been issued and have been recorded in the criminal statistics, in accordance with Guidance, it has plainly proved a useful means of enabling the police to take steps to deal with the problems of disorder in town centres without (a) the need to prove that an offence had been committed, or (b) that the offence had been committed by the person to whom the notice was issued. However, the scheme goes no further than that. If the notice is accepted by the person to whom it has been issued and he pays the penalty, then there is provision that no further action will be taken in respect of the alleged crime; the person has not admitted a crime nor on an analysis of the scheme has a crime been committed.

14. Fixed Penalty Notices and Penalty Notices for Disorder are in this respect quite distinct from cautions, where a person acknowledges that he has committed a crime. Although it is claimed that such notices deliver “swift, simple and effective justice”,

it appears that the use of the term "justice" has produced a confusion, as the delivery of justice implies the admission or determination of guilt and not the mere issuing of a notice of a penalty based on reasonable suspicion. It is correct to describe Fixed Penalty Notices and PNDs as punishment for suspected offending, or a deterrent, as they plainly do deter. However, it seems to us to cause confusion, and may well have caused confusion in the present case, by the assumption that the issue of such a notice is some form of “swift, simple and effective justice” which is not in the ordinary sense of these terms.

15. It is quite clear that the issue of a notice is not a conviction. It is not an admission of guilt nor any proof that a crime has been committed. The scheme of the Act makes that clear. Any person reading the form would plainly understand that it is not to be regarded as a conviction and will not be held against him save in the respect mentioned. It seems therefore clear, both as a matter of the statutory scheme and as a matter of what a person accepting such a notice would reasonably be led to believe, that he was not admitting any offence, not admitting any criminality, and would not have any stain imputed to his character.

The admissibility of PNDs in relation to evidence of good character

16. It is against that background that it seems to us to follow that the issue of such a notice was not admissible as an admission of an offence which would affect this appellant’s good character. It did not impugn the good character of the appellant and had no effect on his entitlement to a good character direction. In short, it was irrelevant and it should not have been admitted.

17. It may well have been the case that in some circumstances those appearing for the Crown would wish to adduce evidence relating to the matters to which the PND had been issued, but that is not this case and we need not consider that or its relevance to the bad character provision of the Criminal Justice Act 2003. It is clear from what we have said that counsel for the Crown did not want the issue of the PND to go before the jury. It was only the insistence of the judge that led to it being adduced before the jury. Indeed, we think it would be very unfair in circumstances such as the present for such a document to be mentioned to a jury without any attempt being made to call evidence in relation to what had happened. The fact that an officer suspects that someone has committed an offence cannot in this realm be regarded as in any way indicative of the offence being committed by that person; in this realm suspicion is not guilt; nor does suspicion affect the good character of any person. We therefore conclude that the judge was wrong to have insisted that the jury be told of the PND. It was entirely irrelevant to his entitlement to a good character direction. It would have been correct to have kept it from the jury.

The error in the directions to the jury

18. However, the judge compounded the error in the directions that he gave to the jury. In effect, the judge told the jury that the PND was "the lowest possible rung of the criminal justice system". It seems to us that those words must have implied to the jury that the appellant had committed some sort of minor criminal offence. If this was to be mentioned at all to the jury (contrary to our view), the judge should properly have explained to them what a PND was and explained that it was not any admission of guilt, but that it merely evidenced a suspicion by a police officer that an offence may have been committed in respect of which, by acceptance of the notice, no further proceedings would be taken. There was, in our judgment, a plain mis-direction. The issuing of such a notice does not in any way place any stain upon the good character of a defendant. In our judgment the appellant was entitled to a full good character direction.

19. Both points which have been argued on behalf of the appellant are, in our judgment, correct. Counsel for the Crown has very properly continued the stance he took before the trial judge, namely that the evidence should not have been put before the jury. We are greatly indebted to him for the way in which he has conducted this appeal.

The safety of the conviction

20. Against that background we therefore turn to consider whether the conviction was safe. The complainant taxi driver gave a very clear account of what had happened. There was the undisputed evidence that his front teeth were badly damaged so that they had to be removed. The issue that was raised, as we indicated at the outset of the judgment, was whether this was caused in lawful self-defence, or had occurred as a result of an accident, or as a result of the taxi driver biting the appellant, or in some other way (such as the blow having been struck by someone else in the taxi driver's office).

21. The evidence given in the course of the trial was summarised by the judge. It is clear from a careful reading of that evidence that the explanation given by the appellant of his actions in self-defence cannot explain the injury. If we accept, as we feel we are bound to do, the evidence of the appellant as to what he did, that does not provide an account as to how the complainant's teeth came to be struck in such a violent way. The appellant said both in his evidence in-chief and in his cross-examination that the way in which he raised his arm did not cause the injury to the teeth. We have considered whether it was possible that this could have occurred accidentally or whether it could have occurred as a result of the taxi driver biting the appellant. However, it seems to us that neither is a plausible explanation. Therefore, looking at the evidence as a whole, and weighing it against what the judge said when he misdirected the jury in respect of the good character direction, namely that they should forget about the PND, we do not think that the conviction can be regarded as unsafe.

22. It was suggested that the trial had been unfair by reason of the fact that the judge had admitted the evidence of the PND. However, although the judge was wrong to admit that evidence, we do not consider that that rendered the trial in any way unfair. Looking at the overall fairness of the trial and the safety of the conviction, having carefully examined all the evidence, although we have no doubt that the judge was wrong to admit the evidence and was wrong in the direction that he gave to the jury, we are satisfied that this is a safe conviction which it would be fair in all the circumstances to uphold. Accordingly, we dismiss the appeal.

MR McCRINDELL: My Lord, in those circumstances I do wish to make an application to your Lordships in respect of leave to appeal to the Supreme Court.

LORD JUSTICE THOMAS: What for?

MR McCRINDELL: My Lord, as to that issue.

LORD JUSTICE THOMAS: You can only appeal on a point of law. We have decided the points of law in your favour.

MR McCRINDELL: My Lord, of course, but just dealing perhaps with the last aspect of your Lordships' judgment, is it fair that part of the evidence against a particular defendant that is put before the jury presumes that he is guilty of it when, in fact, that is not the position.

LORD JUSTICE THOMAS: What is the point of law you want us to certify? Normally if you want us to certify a point of law for the decision of the Supreme Court, you need to formulate the point of law. The truth of it is that there is no point of law. If we had decided the matter in the other direction, you might have had an argument, but our concern has been whether the conviction is safe and whether this has been procedurally fair. You won on the legal points. But we have decided, as happens from time to time in this court, that although an error has been made of law it does not affect the safety of the conviction.

MR McCRINDELL: My Lord, I appreciate that, but the submission I seek to make is that the process of the trial in respect of Mr Hamer involves a presumption that he is guilty of criminal conduct which he has never admitted and has never been proved against him. That is a

fact of this particular trial process, in my respectful submission.

LORD JUSTICE THOMAS: We are afraid there is no point of law.

MR McCRINDELL: I thank your Lordships.

LORD JUSTICE THOMAS: Thank you very much for your arguments.