Director of Public Prosecutions v Dibley

1. LORD JUSTICE CLARKE: On 1 July 2002, the respondent, who was then 16 years of age, was acquitted by a division of the Mid Kent Youth Court sitting at Sittingbourne of an offence which was said to have occurred on 28 March 2002.

2. The alleged offence was that the respondent together with W, aged 19, and M, aged 17, with intent to cause Mrs Abazi harassment alarm or distress, used threatening abusive or insulting words or behaviour or disorderly behaviour thereby causing her or another harassment, alarm or distress. It was alleged that the offence was racially aggravated within section 28 of the Crime and Disorder Act 1998 contrary to section 4A(1)(5) of the Public Order Act 1986 and section 31(1)(b)(4) of the Crime and Disorder Act 1998. The respondents, W and M, were charged with what in short may be described as racially aggravated threatening behaviour. W and M pleaded guilty. W and the respondent were also charged with criminal damage to Mr and Mrs Abazi's car. They both pleaded guilty. As I have indicated, the respondent was acquitted of racially aggravated threatening behaviour.

3. For some reason, the justices were not asked to find him guilty of threatening behaviour if they were not sure that he was guilty of the racially aggravated offence although, as far as I am aware, he could have been so charged in the alternative.

4. The appellant, the DPP, asked the justices to state a case for the opinion of the High Court which they did on 12 September 2002. On 23 September 2002, the appellant filed an appellant's notice in which the grounds of appeal were stated in section 7 as follows:

"The justices were wrong to find the respondent not guilty of the offence, subject to appeal, in particular having found that the respondent used aggressive and threatening words and behaviour and was present as a member of the group whilst other members used racially hostile language is directed towards the victims and was jointly involved the justices were wrong in finding that the respondent did not thereby demonstrate hostility based on the victim's membership of a racial group."

5. In section 8 it was stated that the appellant's skeleton argument would follow within 14 days of filing of the notice. In part C of the notice, it was stated that a video recording of close circuit television footage, which is central to the case, would be lodged with the skeleton argument. In fact, no skeleton argument was lodged until 13 January 2003.

6. As I see it, there is no hint in the appellant's notice that the DPP was seeking remission to the justices, or that the DPP was saying that no reasonable justices could have found the facts as they did, or that there was no evidence upon which the justices could have found the facts as they did. The appellant's notice was simply saying that on the facts found by the justices they were wrong to convict the respondent. The reference to the CCTV is puzzling because it could not be admissible on the hearing of a case stated.

7. On 18 October the appellant signified an intention to apply for the case stated to be remitted back to the justices for amendment. On 14 November an application notice was prepared on behalf of the appellant, the application being that it be ordered, one, that the case stated be returned to the Youth Court, and, two, that the following words in paragraph 6(v) thereof be deleted:

"or intended that the others should be helped in demonstrating racial hostility towards the victims we were not satisfied that the respondent in his drunken state was aware of the racial hostility being expressed by the co-defendants towards the victim."

The appellant says that there was no evidential basis upon which the justices could have found the facts set out in paragraph 6(v)of the case. In particular, they say that there was no evidence upon which they could be satisfied

"that the respondent in his drunken state was aware of the racial hostility being expressed by the co-defendants towards the victim."

8. On the same day Miss Angela Joanneau, who as I understand it represented the prosecution at the hearing before the Youth Court, made a statement in which she set out the basis of the case to submission to which I have just referred. In particular, she says in that statement that on the respondent's own evidence he was perfectly aware of what his co-defendants were doing and saying. She appends to her statement the notes she took of the respondents's evidence. She also refers to the video recording.

9. As I understand it, the application notice and the statement were sent to the defence on about 18 November, but owing to a misunderstanding on the part of the appellant, they were not lodged with the court. A date for the hearing of the case was initially fixed, namely 16 January 2003, at the beginning of December. It was subsequently adjourned until today for the convenience of counsel. In the event, the application notice was not lodged until 7 January 2003. The appellant's skeleton argument was received by the court on 13 January. It is dated 10 January.

10. In that skeleton, it was correctly conceded -- as it has been today by Mr Pote on behalf of the appellant -- that as the case stands at present, the appeal would have to be dismissed because there would be no proper basis for arguing that the respondent was guilty of the offence charged, even on the basis of joint enterprise.

11. It is plain that the essential complaint of the appellant is a complaint that the justices failed to find the facts in accordance with evidence. In one sense, it is the facts about which a complaint is made, not the law.

12. However, I recognise that it can be said that the justices erred in law if it can be shown that there was no evidence on which they could make the finding of fact in paragraph 6(v), or that no reasonable justices could have reached that conclusion on the evidence. It is said that we should remit the matter to the justices for them to reconsider their finding of fact and to amend the case by the deletion of paragraph 6(v). The court undoubtedly has jurisdiction so to order under section 28(A)(2) of the Supreme Court 1981.

13. It is, however, correctly accepted by Mr Pote that we cannot today resolve the question whether there was evidence upon which the court could reach that conclusion. It would be a matter for the magistrates to consider the whole question, as it is now advanced on behalf of the appellant. On the face of the materials we have seen, there is undoubted force in the submission made in the skeleton argument and in the light of Miss Joanneau's statement as to the justices' finding in paragraph 6(v). However, these events took place as long ago as 28 March 2002. Remission to the justices will cause delay. It is also likely to cause some difficulty to the justices because it is now some considerable time since they heard the evidence, although there are no doubt notes of evidence and there is, of course, the video.

14. This case does not raise any question of principle which requires a decision of this court. Indeed, it is not now suggested that the justices misdirected themselves in law with regards to the mens rea of the offence of racially aggravated threatening behaviour when allegedly committed as part of a joint enterprise. It is simply said that the justices erred in making the finding of fact in paragraph 6(v).

15. As I have already indicated, the appellant did not take this point in the appellant's notice. This morning we have been shown some correspondence between the court and the Crown Prosecution Service in relation to the stating of the case. The position appears shortly to be as follows. On 10 July 2002 the Crown Prosecution Service wrote to the court inviting the justices to state a question of law for the opinion of the High Court.

16. One of the questions then proposed was, "could any bench/justices upon the facts, properly directed upon the law, have reached the conclusion that the defendant should be acquitted; in other words was the decision of the justices perverse?" I note, as I think is recognised by Mr Pote, that that question is not a question as to whether there was sufficient evidence to justify any finding of fact. Nor is it a question as to whether the justices acted irrationally.

17. There then followed some further correspondence during which the justices "Reasons for Verdict" document was sent to the Crown Prosecution Service. The correspondance included a letter of 24 July from Miss Joanneau to the court.

18. On 5 August, the court wrote to the Chief Crown Prosecutor enclosing a draft case and saying that the Crown Prosecution Service had 21 days in which to make representations. The draft case included both questions sought including the one which I have quoted.

19. Unfortunately, we do not have a record available of the representations made by the Chief Crown Prosecutor to the court in response to the letter of 5 August or to the draft case. However, it seems reasonably clear that there were representations. It just happens that Miss Joanneau, who is here, does not have the Chief Crown Prosecutor's file with her. It is clear that there were representations, because on 12 September the court wrote to the Chief Crown Prosecutor enclosing the final case, saying this:

"Although the justices considered all your representations they did not take them all into account because as a general rule the case should contain only the facts found by the justices. The only exception to this is where one of the questions is whether there is sufficient evidence to support a particular finding of fact. Neither question in the present case falls into this category and it would be wrong to attach evidence (such as a video) to the case. Rule 81(3) of the Magistrates Court Rules requires that:

'the case shall not be so stated in evidence unless one of the questions is whether there was evidence upon which the court could come to its decision. Therefore, the video has not been appended to the case. "

There was a further paragraph which I do not need to read.

20. It is thus clear from that letter that representations had indeed been made by the Chief Crown Prosecutor. Whatever those representations were, they do not appear to have included the suggestion that there was insufficient evidence to support the finding of fact in paragraph 6(5), and that the decision of the justices was accordingly wrong in law. If they had, they would no doubt have included a proposed question to that effect.

21. In any event, as I have already indicated, when the appeal notice was lodged, it did not make the complaint which is now made; on the contrary. It simply asserted that the justices were wrong in law on the facts found, a point which it is now properly conceded is bad.

22. The question then is whether in all the circumstances it would be just to exceed to this application. For my part, I have reached the conclusion it would not, although I see the force of the point which the appellant wishes to make. It is of the upmost importance that cases in these Youth Courts be determined as soon as possible.

23. There has here been significant delay, which is no fault of the respondents. The case, as I have already indicated, does not give raise to any significant question of law of any real public importance.

24. In all the circumstances, I do not think that justice requires that this matter be remitted to the justices to reconsider their findings of fact or to amend the case, and perhaps to ask a further question of the kind which I have indicated. In these circumstances, I would refuse the application, and it follows that I would dismiss the appeal.

25. MR JUSTICE JACK: I agree.