R & Ors v Director of Public Prosecutions

MR JUSTICE GIBBS: This is an appeal by way of case stated against the decisions of District Judge Tain in the South and South East Hampshire Youth Court in the course of a trial, and at the conclusion of the trial, of the appellants and others which took place on 18th, 19th and 20th June, 30th June and 1st July of this year.

The outcome of the trial, as it affected these appellants, was as follows: R was convicted of violent disorder and of unlawful wounding contrary to section 20 of the Offences Against the Person Act. The district judge found no case to answer against him on a charge of common assault. J was convicted of violent disorder, unlawful wounding and common assault. M was convicted of violent disorder and acquitted of common assault.

The grounds of appeal are: first, that the district judge was in error in failing to exclude the identification or recognition evidence of a 14 year old witness, B, the admissibility of that evidence having been taken as a preliminary issue.

The second ground is that B's evidence having been admitted, the district judge was wrong to reject a submission of no case to answer at the conclusion of the prosecution case. It is argued that since B was the sole identifying witness and his evidence was so flawed, the district judge was wrong to allow the case to proceed further.

Finally, it is submitted that the district judge was wrong at the conclusion of all the evidence to have convicted these appellants.

Originally a complaint was made that there was no sufficient evidence set out in the case stated to enable the appeal to be properly considered. Now, however, it is agreed, subject to the court's approval, which has been given, that the appellants solicitor's notes should be relied on.

The factual background of the case is as follows: on 26th April 2003 a group of at least 20 young people were creating a noisy disturbance in the street. A man called A came out of his nearby house and asked the youths to keep the noise down because there were children sleeping. He was immediately set on by one of the older members of the group, hit in the face, and knocked to the ground. Others, it was alleged, including these appellants, joined in the attack on A when he was on the ground. The victim undoubtedly was attacked and suffered injuries which included a double fracture of the arm.

J and M, who were both convicted of wounding A, were alleged to have kicked him whilst he was on the ground. All three appellants were alleged to have been behaving violently towards A and others as the incident developed. Another man, called O, fell victim to the crowd of youths and suffered some injury. J is alleged to have run at him, together with a number of other youths from the crowd, and subjected him to repeated assaults. Efforts were made to help the first victim, A, and eventually he was taken back to his house. As this was happening the violence and threats continued, directed by the group of youths towards the two named victims and others.

In the case of each appellant, identity was the issue. One witness identified each of these appellants as taking part in the violent incident and behaving in the way that I have already described. As has been mentioned, that witness was the 14 year old B. His evidence was that each of the appellants was well known to him. He described each appellant by name as playing an individual part or parts in the attack.

After the arrest of these appellants they made it clear that the identification or recognition by B was disputed. Further, that they were willing to cooperate in a video identification procedure involving both B and any other potential identification witnesses. Preliminary arrangements were made for such a procedure to be carried out. In the case of R and a co-defendant, H, who was subsequently acquitted, video shots were actually taken of them for that purpose. In the case of J and M, they were due to attend but their appointment was cancelled due to the illness of a police officer. By then the trial was due to start in a few days' time.

It seems that the view was taken that the priority was to proceed to trial promptly, since all the defendants in the case, including these appellants, were classed as persistent young offenders. However, the effect of that decision was, as the district judge found, that there was a breach of the codes of practice under the Police and Criminal Evidence Act 1984. The relevant provisions derived from Part D: "Code of Practice for the Identification of Persons by Police Officers," that code taking effect from 1st April 2003.

So far as relevant, the provisions of the code are as follows:

The breach of the code of practice is not in dispute in this appeal, nor was it before the district judge. Further, it is common ground that a breach of code of practice, whilst it should always be regarded seriously, does not result in itself in the exclusion of the relevant evidence. The question of exclusion is a matter for the discretion of the court under section 78 of the 1984 Act. The district judge had a discretion to exclude the evidence of B if it appeared to him that:

It is submitted on behalf of the appellants that other witnesses present at the scene should have been given the chance to participate in the identification procedure even though, in the event, the prosecution only relied on B. It is submitted that those witnesses might, for example, have been able to say that one or more of the appellants was not present, or was not responsible for the particular violence alleged.

It is submitted that the harm done in that context, by the admission of the evidence of B, is demonstrated by a number of factors emerging in the course of the trial. In particular the court has been told of the acquittal of the defendant, H, notwithstanding the fact that he was named by B, and after alibi evidence had been called on H's behalf.

Reference is also made, although these points are not central to the appellants' case, to two other youths: one, S, who was not brought before the court, despite the fact that B, at some stage, had named him; secondly, a youth called D, who had not been prosecuted, notwithstanding the fact that B had named him in his witness statement. In D's case the matter went as far as a statement by D being read unopposed in the course of the trial, confirming that he was not present at the scene.

A further matter said to reflect adversely on the credibility and reliability of the witness B was that the appellant M was acquitted of common assault, even though B appears to have confirmed his participation in the course of his evidence.

It is further submitted by reference to the solicitors' notes of the evidence at the trial, that there are three particular witnesses, T, F and O, who could have been invited to attend identification parades, but in the event were not.

It is further submitted that whilst there may have been reasons in the mind of the district judge for distinguishing, for example, between these three appellants who were convicted, and H who was acquitted, and for other distinctions that the district judge drew, that the district judge gave no, or no sufficient, indication of his reasoning in drawing such distinctions.

In response to the submissions of Mr Lofthouse, on the appellants' behalf, Mr Concannon submits that the district judge was entitled to exercise his discretion as he did and the exercise of that discretion cannot be criticised. He submits that there are reasons which can be found in the note of the evidence which fully justify the distinctions which the district judge drew between one charge and another, and between co-defendants. He submits that the failure to specify precisely what those distinctions were does not vitiate the decisions of the district judge, nor the convictions of these appellants. He refers to paragraph 8 of the case stated where the district judge says this:

Mr Concannon submits that in his approach there set out, as in his approach to the admission of the evidence in the first place, and to the rejection of the submissions of no case to answer, the learned district judge was acting properly in the exercise of his discretion and disclosing, in some detail, the processes of his reasoning. He submits that this court, being an appellate court, cannot and should not substitute its judgment for that of the district judge under those circumstances; and that the district judge was entitled to be convinced by some evidence, but remain doubtful about other aspects of the evidence, even where the evidence came from the same witness.

Finally, the case of R v Gleeson, a decision of the Court of Appeal on 16th October 2003, EWCA Crim 3357, was drawn to the court's attention by Mr Concannon who invited the court to conclude that it applied to this case.

In my judgment, in considering whether the district judge erred in the exercise of his discretion, the context is very important. Clearly the young witness, B, was in a position to identify the participants for a period, and in circumstances which gave him more than a fleeting glimpse of them. His evidence was to the effect that he knew these particular appellants well. Accordingly, in my judgment, it was reasonably open to the district judge to admit his evidence of recognition, notwithstanding the lack of identification procedure. Indeed, it could be said, in the present context, that the identification procedure, so far as B was concerned, would probably achieve no more than to test whether or not he did know the appellants well, and would be less effective, if at all, in testing whether he was truthful or accurate regarding the parts that they played in the incident.

As regards the other witnesses who could have been given the opportunity of picking out suspects on identification procedures, in the event they did not give any evidence to implicate these appellants. In my judgment, if one looks at the reality of the matter it was highly unlikely, or at best highly speculative, to suppose that the consequence of any identification procedure involving other witnesses would or could have left the defence in any better position than they actually were. Thus I would hold that the district judge was entitled to make his preliminary rulings as to the admissibility of evidence.

As regards his rejection of the submission of no case to answer, I have considered additional factors arising as a result, it is said, of the way young B gave his evidence and the district judge's findings arising out of that, in particular, such inconsistencies as arguably were revealed in cross-examination. Secondly, I have considered criticisms of the district judge's decision to convict these appellants on most counts, but either to acquit or to hold that there was no case to answer in respect of at least one appellant in respect of at least one charge. Thirdly, I have considered criticisms of the view that the district judge formed at the conclusion of the case that he was not satisfied of the guilt of H, but was satisfied of the guilt of these appellants.

In my judgment, when one examines the notes of evidence, helpfully taken by the appellants' solicitor, there is nothing irrational about the conclusions of the district judge and they are capable of being justified by the evidence that he had heard. It is to be noted that B said that these appellants were among those he knew "really well". It is true that he also included S in that category. However, he did not describe S as having carried out any identifiable part in the evening's events. So far as D was concerned, he did not fall into the category of people whom B knew well and B did not, in the event, identify him in the course of his evidence.

B, on the other hand, specifically said that he did not know H well and had not spoken to him. He does not appear to have been able to name any clear part played by him in the events of that evening. It is trite to observe that a verdict of not guilty, such as that in the case of H, cannot be taken as a finding that he was not involved or as a rejection of B's evidence. It goes no further than simply to signify that the state of the evidence was such that in his case the district judge could not be sure of his guilt.

Thus, as I have already said, I would hold that there were clear distinctions on the facts which justified the district judge's decisions on the submissions of no case to answer. It is, I think, unfortunate that the district judge did not expressly set out the reason for the distinctions that he drew in the case stated. It would be more helpful, not only for this court, but for defendants in the position of these appellants, to know the precise process of the district judge's reasoning in that regard. There is, in my view, nothing to prevent a judge, in those circumstances, setting out the reasons in full. It is unfortunately the case that this court is unable, despite the notes with which we have been provided, to say whether the district judge gave satisfactory reasons in the course of his judgment concerning these verdicts.

Having found that there was a case to answer, in my judgment there was nothing which emerged thereafter that gave rise to criticism of the verdicts that were reached on the guilt of these appellants. The acquittal of M in relation to common assault was not, in my judgment, inconsistent, a measure of doubt having arisen on B's evidence as to whether M was involved in that particular episode.

For the reasons given, I would hold that there was no error of law or irrationality on the part of the district judge in his approach to any of the decisions complained of. Thus the answers to the questions posed in the Case Stated at paragraph 7(a)-(d) should, in my judgment, in each case be "yes".

As a footnote, I have considered the case of Gleeson raised by Mr Concannon and, without going into detail, it is, in my judgment, not a case which can have any application to the current facts.

For the reasons given I would dismiss the appeal.

LORD JUSTICE THOMAS: I agree that for the reasons given by my Lord this appeal should be dismissed. May I just add one observation as to the form of the case that was before us. As my Lord has pointed out, the case stated, which plainly, in the circumstances, called for the relevant evidence and the reasons to be set out, contains neither of these.

There was before the court an application to remit the case to the learned district judge, but fortunately that did not become necessary because the notes of Mr Suter were sufficiently accurate that they could be agreed by the Crown.

It is unclear to me whether reasons were given at the time the verdicts were pronounced by the district judge. They may have been, one simply cannot say. However, the district judge did fail in his duty to state a case properly to this court. For the reasons that my Lord has given, it would obviously have been of great assistance to this court, had the evidence been properly set out and reasons given.

In the circumstances of this particular case the district judge's failure to set out his reasons was pointed out to him by the solicitors on behalf of the appellants. It was of great importance that the district judge should have considered that, because this is a case involving young offenders and it is fortunate that the court has been able to proceed in the way I have described. Were that not the case the failure by the district judge would have had unfortunate consequences.

I very much hope that in cases of this kind in the future, particularly where young offenders are involved, careful consideration will be given as to whether the case stated adequately meets the needs of the argument that is to be addressed to this court, and in the particular circumstances of cases of this kind, whether the reasons for the decision sufficiently appear on the face of the case stated.

For the reasons already given by my Lord I agree that the appeal should be dismissed.

MR CONCANNON: My Lord, I am duty bound to apply for costs. I am aware that there are --

LORD JUSTICE THOMAS: What is the position there? There is a representation order?

MR LOFTHOUSE: My Lord, there are representation orders for each of them and I gather that none of them would have the means to meet any costs.

MR CONCANNON: My Lord, I accept that.

LORD JUSTICE THOMAS: Well, is there any point in me making an order?

MR CONCANNON: There is none.

LORD JUSTICE THOMAS: Very well.

MR LOFTHOUSE: My Lord, one thing, I have not presented to the court the signed witness statement of Mr Suter producing his notes.

LORD JUSTICE THOMAS: We are very grateful to Mr Suter for his having taken those notes, because otherwise, for the reasons I have endeavoured to state, it would have been very unjust for his two clients.

MR LOFTHOUSE: My Lord, thank you.

LORD JUSTICE THOMAS: Thank you both very much indeed.

LORD JUSTICE THOMAS: We thought we ought to come back to deal with the question of reporting restrictions, the matter having been raised with us. I think you indicated to us that the district judge had lifted the restrictions and you said you would want the restrictions lifted if your appeal succeeded, but your submission would be that if the appeal failed then you felt that there was no real need to identify them yet again.

MR LOFTHOUSE: My Lord, could I put it, in a sense, a little lower than that, because I said: no need for this particular case to be further brought to the public's attention. Although, my Lords, I have to be frank, there are ASBO's, Anti-Social Behaviour Orders, and there are leaflets being put around -- including these defendants -- among the local population, by either the local authority or the police, with their photographs on them. I do not want the court in any way to be misled.

LORD JUSTICE THOMAS: I am sorry, can you explain to us, in a little more detail, that point?

MR LOFTHOUSE: My Lord, yes. After the criminal proceedings, the -- I suppose the local authority with the police -- made applications against these defendants for Anti-Social Behaviour Orders. There has been a great deal of publicity in those parts as to the making of that order in respect of them and, I think, others. Those orders were made, I presume, after the sentencing hearing in this case.

LORD JUSTICE THOMAS: Yes.

MR LOFTHOUSE: As part of the activity of the authorities in respect of these defendants there have -- I understand and I have seen a copy -- been leaflets being handed around alerting the local population to the terms of the Anti-Social Behaviour Order and bearing photographs.

My Lord, I bring this to the court's attention only because I do not want the court to be misled. I am not saying that they are not the subject of publicity, they have been and are. All I say, my Lord, is that it has to come to an end some time and perhaps, in a small way, this does not need to be added on to it. The public will know they have been convicted, but to be told they have come here on a point of law would perhaps appear rather dry to the public, and be told that their convictions stand.

LORD JUSTICE THOMAS: The point has been raised with this that even if this case were reported with the young people concerned simply being referred to as X Y and Z, anybody who took the trouble to link it up could identify these particular appellants by their true identity. But in practice, if they were referred to by letters rather than by names, would any of these young people suffer any further publicity than they are suffering already? The answer is probably no, is it not?

MR LOFTHOUSE: My Lord, the answer may be no. I do not imagine, incidentally -- the gentleman from the press was kind enough to alert me to the argument he was proposing -- the newsworthiness of this case is not going to be great in Cleethorpes. If they are called A, B and C one imagines that the Portsmouth Evening News will be calling them A, B and C in Havant and Portsmouth. The only importance of this case is to the people in and around Havant or Portsmouth.

LORD JUSTICE THOMAS: What you are saying to us is that really it will not take a great leap of imagination if the local paper refers to an appeal having been dismissed by this court. Even if it does not name them, there will be an immediate connection?

MR LOFTHOUSE: Can I show your Lordship what they printed about --

LORD JUSTICE THOMAS: I am not sure it is necessary. You agree with what I have just put to you? The connection will be obvious?

MR LOFTHOUSE: My Lord, the connection will be obvious -- I say obvious, obvious to anybody who knew enough.

LORD JUSTICE THOMAS: Can I ask Mr Concannon what observations he has?

MR CONCANNON: Well, my Lord, I think it is this: my understanding of the law is that there is automatic protection against revealing the name, address, or school, of any child, or any particulars likely to lead to the identification of the child, that is automatic under section 49.

LORD JUSTICE THOMAS: Yes.

MR CONCANNON: It can only be lifted in circumstances where the court considers it just, or it is in the public interest to do so. I am not here on behalf of the press or anything of that sort. It seems to me that the situation exists that there can be no public report of these proceedings in terms of newspaper reports, in circumstances that may lead to the identification of the boys. It does not stop Law Reporting.

LORD JUSTICE THOMAS: Obviously not, no, because they are anonymised.

MR CONCANNON: If they are reported, and unlike Mr Lofthouse I actually live in the area, I have seen the reports and I have seen the way the newspapers report it, what is likely to happen is that three boys -- if they identify them from the Havant area or the Lee Park area -- the connection will be made. That said, with leaflets being targeted and portraits being painted, it is perhaps worth bearing in mind that these sort of things will happen inevitably.

The short answer is that I think that the protection is there. It does not need any intervention from this court and if the newspapers get it wrong then they will find themselves in trouble.

LORD JUSTICE THOMAS: Yes, but that is not a terribly -- if I may say so, the last thing one wants to do is put the newspapers in trouble. They are entitled to know where they stand. It is appropriate that I have any observations from them they would care to make. Would you like to make any observations on this point?

AN OFFICER OF THE PRESS: Very briefly, my Lord. It seems that this is an open court hearing.

LORD JUSTICE THOMAS: Yes.

AN OFFICER OF THE PRESS: These are matters of public interest. One would then expect to have the ability to report, unless there are very good reasons why they should not be reported.

LORD JUSTICE THOMAS: But normally, what has happened in this case is slightly unusual. The district judge, for no doubt very good reasons, has decided to lift the prohibition. That has been accompanied, as I understand it, in the locality by a degree of publicity about this matter. But what would happen automatically, unless we were persuaded to the contrary, is that we would have to lift the order here. Why do you say -- at the moment I do not quite follow -- why is it necessary for us to lift the prohibition in respect of these proceedings, because it seems common ground that any lifting -- both counsel tell us that any lifting will immediately lead to the identification. I think our initial hope was that we could do it anonymously, but I think that does not seem, realistically, to be the case. Why is it in the public interest the fact that this appeal has been made and failed should be reported?

AN OFFICER OF THE PRESS: Well, the district judge who heard the case on the facts, on his discretion, decided to lift the reporting restrictions. This court, with respect, would, if it then overturns what the judge had decided, with the very greatest respect, would suggest there is an inconsistency in the way these matters are --

LORD JUSTICE THOMAS: No, no, I think the position is slightly different. What we are saying, I think, is this: statutory prohibition covers the young persons concerned. One can understand why the district judge did it, and no criticism attaches to why he made that decision, but we would have to consider afresh what further public interest would be served. What I was asking you for assistance on --

AN OFFICER OF THE PRESS: I see, my Lord.

LORD JUSTICE THOMAS: I am sorry, I had not made myself clear. Why did you think there was a further public interest now?

AN OFFICER OF THE PRESS: I was, I think, coming from a different direction, in the sense that here is an open court hearing which is on a matter of public interest. It would just seem that the logic of the thing is that once it is in the public domain it remains in the public domain unless there are very good reasons that it should not, because the court is -- presuming fair, open justice -- unless there are very good reasons why not. Any restrictions imposed have to be imposed on the basis of very good reasons. I am bearing in mind, my Lord, of course, that the court's discretion is paramount.

LORD JUSTICE THOMAS: We will take a minute to think about it.

LORD JUSTICE THOMAS: We are very grateful to you all and to the observations that have been made on behalf of the press. It seems to us that we ought to approach this matter on the basis of the statutory restriction being in place. We have to consider whether there is a good reason for us to lift that prohibition. It is quite clear that the district judge decided, quite properly, that there were reasons why the prohibition should have been lifted for the purposes of the order he made and subsequent orders. However, no one has been able to identify for us any reason why the statutory prohibition should be modified, in the circumstances of this case, in respect of our decision.

It seems to us that there is no good reason. All we are doing is dismissing an appeal and this, of course, does not in any way detract or in any way vary the position that the district judge made which enabled publicity to be given to the original decision and the subsequent orders that had been made. We therefore cannot identify any public interests that requires us to lift, in the circumstances of this case, the prohibition.

We are most grateful to you all for your observations and for your help. We are particularly grateful to the press for raising the matter openly with us and we are indebted to them for the points they have made.

Thank you.