Hamer, R v

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.

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.

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

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.

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

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.

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

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.

A penalty notice is defined as:

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:

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:

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:

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.

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 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.

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.

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.

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.

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.

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).

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.

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.