Pearson v Director of Public Prosecutions

J U D G M E N T

Monday 24 November 2003

THE LORD CHIEF JUSTICE: I will ask Mr Justice Mackay to give the first judgment.

MR JUSTICE MACKAY:

1. This is an appeal by way of case stated against the conviction of the appellant on 6 December 2002 at the Leeds Magistrates' Court for the offence of common assault.

2. The facts of the case were relatively simple. The complainant, Mr Tatterton, went to a night club late on 13 December 2001, where he had been in conversation with a woman named Joanne Smith. In the past he had had a relationship with her and prior to that she had had a relationship with the appellant. Mr Tatterton's evidence was that for no reason the appellant assaulted him while on the dance floor and repeatedly punched him to the head; that he fell to the ground with the appellant on top, whereupon the appellant was pulled off him by others and left the club via the fire exit. Mr Tatterton accepted that he had been drinking and was in the company of other friends, some of whom were on the dance floor at the time. He denied having been involved in any prior confrontation with the appellant at the club that night.

3. The appellant's evidence by contrast was that he had gone to the club that night expressly to win back the affections of Miss Smith and had spoken with her. She had not been happy as a result of that conversation. He persisted in wishing to speak to her and she sought refuge with her friends. Later on he approached her while she was on the dance floor. He then said that somebody hit him with a fist from his right. He swung round and hit his assailant in self-defence and only then did he see that it was Mr Tatterton. He then sought to leave the premises, tripped and fell onto Mr Tatterton and was pulled away by others.

4. He accepted that he had had a previous verbal confrontation over the matter of Miss Smith when their relationship ended; that he had sought out Mr Tatterton at his place of work; and that he had thereafter harboured feelings of animosity towards him.

5. Three members of Mr Tatterton's group gave evidence as to what they had seen of relevance that night. None claimed to have seen the whole of the assault or fight.

6. The submissions made at the end of the evidence to the magistrates were that the prosecution had to prove beyond reasonable doubt that the appellant was guilty of common assault. Not surprisingly, that was common ground between both prosecution and defence. The defence further submitted that the Bench had to be satisfied beyond reasonable doubt that the defence of self-defence, once raised by them, had been rebutted by the prosecution to that standard.

7. The second submission does not appear to have been contentious and appears from the Case Stated to have been accepted by the magistrates as a correct statement of the law, which it self-evidently was. They proceeded to make certain findings of fact as to what the evidence amounted to and gave their reasons in open court in a short but comprehensive form. They said that Mr Tatterton had come across as a credible witness; that there was no evidence that he had exhibited any aggressive behaviour that night and that he had been happy and relaxed. As to one of the witnesses from his group, because there were discrepancies in what she said she had seen of part of the attack, the Bench said that they were not relying on her evidence. The other two friends of the complainant did not actually witness the attack. They said that they had heard from the defendant who conceded that he had struck the first blow but that it was in self-defence and they then said:

“We find Stephen Tatterton's version of events the more compelling. He appeared happy, calm and unconcerned about [the appellant's] presence in the club, whereas [the appellant] had actively sought to come to the club, had a confrontation with his ex-girlfriend and was in a distressed and emotional state. He knew that Tatterton had been involved with his ex-girlfriend and he sought to attack Tatterton.”

They concluded:

“We are satisfied that this was an act of aggression and not of self-defence. We therefore find Pearson guilty of this offence.”

8. The first question set for the opinion of this court is:

“Were the justices entitled to convict the appellant of an offence without referring in their reasons to the burden and standard of proof, particularly when self-defence had been raised as an issue?”

At the heart of the appellant's submissions on this question lies the proposition that the justices' reasons as stated in open court gave the appearance of applying the wrong test, similar to or approaching the balance of probabilities, by appearing to weigh up the two conflicting accounts of the main protagonists.

9. In my judgment, because of the nature of this case it was inevitable that the magistrates had to address the question that they did address. Both these witnesses could not be right. Either one was right and the other was wrong, or, conceivably, both were wrong. A comparison, therefore, of their evidence was both necessary and inevitable. But in my judgment it was not the case that in so doing the justices fell into an error of the type found in Evans v Director of Public Prosecutions [2001] EWHC Admin 369, of creating in the mind of an informed bystander acquainted with the facts that they were applying the test of the balance of probabilities, that one witness was more likely to be right than the other and therefore the case was proved. This, in my judgment, was not such a case. It is common ground that the justices' reasons given in open court do not have to resemble a High Court judgment or be “in any elaborate form”. The essential requirement is that they should be sufficient to inform a defendant as to why he has been found guilty. As it was put by Tuckey LJ in Queen on the application of McGowan and Brent Justices [2001] EWHC Admin 814, [2002] Crim LR 412:

“.... Justices do not have to state their reasons in the form of a judgment, reciting the charges, the evidence they have heard and all their findings of fact. The essence of the exercise in a criminal case such as this is to inform the defendant why he has been found guilty. That can usually be done in a few simple sentences.”

10. In this case the magistrates said that they found Mr Tatterton credible as a witness; that he was calm, relaxed and unconcerned at the presence of the appellant. The appellant, on the other hand, on his own account had sought out this young woman, having come to the club with the express purpose of so doing, was distressed and was emotional. Therefore, this was not simply a comparison of the evidence of two witnesses without there being any influential evidential feature sufficient to make the account of one prevail over that of the other so as to satisfy the criminal standard of proof. Reasons were given by the magistrates drawn from other evidence in the case, largely from the appellant's own evidence, on which they made their key finding of fact, as it appears to me, that the appellant “sought to attack Tatterton”, concluding that they were satisfied that this was an act of aggression and not self-defence. In the context of a case where the appellant's counsel had shortly before raised in his submissions both the burden and standard of proof relating to self-defence, where the prosecution appeared to have accepted those submissions, and where the justices, too, seem to have accepted them, it is plain, in my judgment, that the first question posed for our decision in this case must be answered in the affirmative.

11. The second question is:

“Were the justices entitled to convict the appellant when a number of prosecution witnesses' evidence was rejected as being inconsistent with the complainant's evidence?”

No separate oral submissions have been addressed to us today on this question, but it seems to me that it should be dealt with. The appellant complains that the justices purported to rely on the evidence of Miss Hurry, one of the witnesses in the complainant's group, although they stated that because of discrepancies in her account she was not a reliable witness in relation to the fight. None of the other witnesses called even claimed to have seen the fight. “Her account” in the sense described by the magistrates must mean her account of the fight itself. It was that part of her evidence which contained discrepancies and was therefore disregarded -- disregarded in the sense that it could cast no light on the central issue of fact as to whether the appellant attacked Mr Tatterton or vice versa. Both Miss Hurry and Mr Dawson had given potentially important evidence that Mr Tatterton's demeanour prior to these events had been “relaxed and happy” (in Miss Hurry's words) and “outwardly calm” (in those of Mr Dawson). The justices were not bound to accept or reject the entirety of any witness' evidence, it being a trite proposition that the credibility of a witness is not a seamless web. They were plainly entitled to reject, for example, Miss Hurry's evidence about the fight itself, but accept what she had to say about the events and the behaviour of the protagonists earlier that night. Their decision so to do cannot be categorised, in my judgment, as perverse or open to challenge in this court.

12. The third and final question is:

“Were the justices entitled to convict the appellant without making findings that the Crown had discharged its duty to establish that he was not acting in self-defence?”

Literally answered, it seems to me that the only answer could be that they were not so entitled to act. But the question as framed is not in my opinion helpfully posed. The respondent says that this is not what the justices did. In their reasons given in open court they expressly found that the Crown had so satisfied them by saying:

“We are satisfied that this was .... not self- defence.”

It is suggested that it was somehow incumbent on them as part of their reasons to recite that they had considered what the appellant honestly and genuinely believed at the time he struck the complainant. In my judgment, this is an attempt to impose on the magistrates a duty as to how to express their decision in open court by setting out the full ingredients of the issue of self-defence, of dealing separately with each step of the process with reasons at each stage, which is a duty that ought not to be on them. It is not appropriate to place it as high as this. Nor was it on the facts of this case necessary for them to state what view they had formed on how exactly the course of the incident had unrolled and developed as it went on. There could be no criticism of their response to the evidence and to the reasons they gave for it.

13. In my judgment, therefore, while, literally speaking, the third question should be answered in the negative, it does not avail the appellant to any extent. I would answer the questions posed: “Yes”, “Yes” and “No”, and I would dismiss this appeal.

14. THE LORD CHIEF JUSTICE: I agree.

15. MR SANDIFORD: My Lord, there is only the question of costs. I understand the appellant is legally aided.

16. THE LORD CHIEF JUSTICE: What is the situation with regard to his financial position?

17. MR ARMBRISTER: My Lord, he lost his job as a result of this particular incident. He was of good character. He was actually a legal executive and those who employed him saw him in court that day and dismissed him the next. He has now moved away from the area and those who instruct me now report that he was unemployed at the time he was granted legal aid.

18. THE LORD CHIEF JUSTICE: He is still unemployed at the present time?

19. MR ARMBRISTER: As far as I am aware that is the position. I caused enquiries to be made, but he has moved to the east coast.

20. THE LORD CHIEF JUSTICE: He is not at court today?

21. MR ARMBRISTER: He is not at court today.

22. THE LORD CHIEF JUSTICE: Mr Sandiford, you have heard what has been said to us. What order do you think we should make?

23. MR SANDIFORD: My Lord, it puts me in a difficult position. I have instructions to apply for costs, but it is a matter for discretion to impose an order for costs on a young man who has already lost his job over this incident.

24. THE LORD CHIEF JUSTICE: And the practicalities may be more expensive to try and enforce an order for costs from the public's point of view. Is that what you are saying?

25. MR SANDIFORD: My Lord, can I put it this way? I make the application with no great enthusiasm.

26. THE LORD CHIEF JUSTICE: You will not be surprised in those circumstances we make no order for costs.

27. MR SANDIFORD: I am obliged.