McCubbin, R (on the application of) v Director of Public Prosecutions

MR JUSTICE DAVIS: This is an appeal by way of case stated brought on behalf of Mr Paul James McCubbin who, after a trial in front of the Magistrates in the Sutton Magistrates' Court, was found guilty on a count of assault. He was made the subject of a conditional discharge of six months and ordered to pay compensation of £200 and costs of £100. The sentence, given the asserted facts, may be described as lenient; but Mr McCubbin was a man of previous good character and it is understandable that he is concerned about a conviction being recorded against his name.

The background facts are set out in the case stated. The case stated records that on 29th October 2003 a charge was preferred by the respondent against the appellant that on 17th October 2003 at Braemar Road, Worcester Park, he assaulted Robert Marshall by beating, contrary to the relevant provision of the Criminal Justice Act 1988. The appellant pleaded not guilty and the matter was laid down for trial which was heard on 15th December 2003, where he was found guilty.

The case stated then set out what was stated to be a "short statement of evidence". In fact, the summary of the evidence is very detailed indeed, as set out in the case stated, and records a very detailed note having been taken. I do not propose myself to go through the entirety of that statement of evidence but simply to summarise what was recorded by the Magistrates in the case stated as having been given. That indicated that the complainant Robert Marshall said that he had been walking down Braemar Road at about ten past eleven on the evening of 17th October. He had been to the pub and his evidence was that he had drunk four pints and then had called at a kebab shop. As he walked down Braemar Road he saw two men in front of him who were throwing bottles. They then went into a house. One man then came out and went up to him. Two other men then came out of the house and held on to the first man but he struggled free and punched Mr Marshall on the nose. Mr Marshall then fell to the floor. He then got up and went home, whereupon his wife took him to the local hospital where he was seen by a doctor.

The statement of case then goes on to summarise the answers given in cross-examination of Mr Marshall. He said that he was about a hundred yards from the men when they were throwing bottles. He confirmed in cross-examination that it was just the one bottle he had seen being thrown, contrary to what he had said in his witness statement. He denied shouting abuse at the men and said that he was unsure whether the defendant walked into the house as he had originally said in evidence in-chief. He made a denial about there being cans in any bag and denied being pushed by the appellant. He reiterated that he had been hit by him from the front and had been knocked off his feet. He said there had been no injuries to his back but there had been a scuffle, there was a punch on the nose and then it ended. He said he had been punched once, hit on the top of the nose. He could not explain an injury to his jaw but said he then hit his face on the ground. He went on, according to the case stated, to deny that he had told the doctor that he had drunk eight pints. He said that he was signed off from work for two weeks following the injury to his nose.

Two doctor's statements were read out pursuant to provisions of section 9 of the 1967 Act. One doctor confirmed that Mr Marshall had two injuries to his nose and jaw, consistent with punches to the face. Another doctor confirmed that it was approximately 1am on 18th October 2003 when she examined the complainant who stated he had consumed eight pints of beer.

The evidence of the interview of the appellant was then read out. That, on the whole, to a considerable extent recorded answers of the appellant to the effect of what he said in his evidence before the Magistrates. In effect, the appellant was saying that it was Mr Marshall who was causing the problem and he went up to him to say, "Look mate, what is your problem?" His father and a friend called Nick had come out of the house and he, the appellant, then pushed the man. His father and Nick grabbed hold of him, then everyone fell to the ground, and they all then got up. He denied punching the victim and said that the injuries he sustained must have been due to his falling on his face. In interview the police drew the attention of the appellant to what was said to be the fact that the marks on the face of the victim looked like a ring mark.

The appellant went on to confirm that he was right-handed and the police pointed out that there was some bruising on his right hand. It looked as if a ring was normally worn on the finger of that hand as there was a mark there. The response of the appellant in interview was to explain that he had recently taken off his ring and the black mark at the bottom of his finger to the knuckle was due to an old rugby injury incurred about 14 years ago. He reiterated that all three men had fallen in the middle of the road and said that he had no intention of harming the complainant: it was all an accident. He denied hitting him. He felt that he was just pushing him in self-defence. It was confirmed that the appellant had no previous convictions or cautions.

When called to give evidence, the appellant gave evidence broadly to like effect. He said that he had decided to stay in with his father and that his friend Nick came around. They had been out to a kebab shop and as they came back Nick dropped a bottle. Then they heard a man, being the complainant, shouting and swearing at them and the appellant then thought he should go into his house. Nick then went in to get the appellant's father to calm the situation down and the appellant himself walked towards the complainant. He said that as he walked across the road there were pushes but nothing sufficient to push the complainant over. He, the appellant, was then grabbed by his father who had come out and who tried to pull him back, but then the appellant, the father and the complainant then all fell over. Nick was there and gave the complainant a bag from which cans of beer had fallen. In cross-examination he confirmed that the complainant did not fall to the ground due to his push. He says he could not see in the complainant's bag and denied causing marks on the complainant's face. He stated that he had an injury on his hand through playing rugby which was worse when it was cold.

The appellant's father, Mr Alan McCubbin Snr., stated in cross-examination that they had all ended up in the middle of the road and he had tried to pull his son away to protect him. He asserted that the appellant had not punched the victim and that none of them had been drinking. Nick Woodward was also called and in cross-examination he stated that he did not pull the appellant back, but that he also ended up on the floor.

The case stated then goes on to record the various contentions made on behalf of the appellant who was then represented by Mr Watson of counsel, as he has been before me today. Mr Watson told me that, as I would expect, he addressed the Magistrates on the question of burden and standard of proof. The contentions as recorded by the Magistrates were as to the discrepancies in the evidence of the complainant as to whether he had drunk four pints or, as he told the doctor, he had drunk eight pints. Attention was drawn to the various asserted discrepancies and inconsistencies in the complainant's evidence which are recorded in the case stated. It is said that the injuries being to the front of the victim's face and body were more consistent with the appellant's version of events than the complainant's and attention was also drawn to the evidence of the other two witnesses called by the appellant. It was further recorded as being contended that although the medical evidence suggested that the injuries were consistent with punches, this did not mean that they were caused by a punch and could be consistent with a number of different causes. Attention, of course, was naturally drawn to the previous good character of the appellant.

The position of the Crown, in effect, was that the evidence heard supported a guilty verdict. The case stated then goes on to say in paragraph 6:

The issues before the Magistrates were entirely issues of fact. Mr Watson frankly and fairly accepted that if the Magistrates did apply the correct burden and standard of proof, then there was evidence which would have entitled them to convict if they accepted the essence of the Crown evidence and rejected the essence of the defence evidence. His position is that, having regard to the reasons given by the Magistrates, either they did in fact fail to apply the correct burden and standard of proof, or they at least would have given the impression to an objective outsider that they had so failed to apply the correct burden and standard of proof.

In my judgment there is absolutely nothing in the first point. The Magistrates would of course have been well aware of the burden and standard of proof; and, in any event, if it had been necessary, counsel's address to them on behalf of the appellant at the hearing emphasised that particular point. There is nothing to indicate that they did not apply, or to all events purport to apply, the correct burden and standard of proof. The position is entirely different from that in the case of Evans, an unreported decision of the Divisional Court given on Monday 14th May 2001, (2001) EWHC Admin 369. In that case the relevant comments of the Magistrates were to the effect that, having heard two very different accounts from the principal witnesses for the prosecution and for the defence, they had weighed up those accounts and had believed that of the prosecution witness as the more credible story. It is perhaps not surprising that that language gave the impression that a standard on the balance of probabilities may have been applied. The circumstances of that case, for that and indeed for other reasons also, as appeared from the judgment, are quite different from the present case.

Mr Watson stated that it was incumbent upon the Magistrates to give sufficient reasons for their finding of guilt. He cited to me the case of R v Harrow Crown Court ex parte Dave [1994] 1 WLR 98, where at page 107 this was said by Pill J giving the judgment of the court:

In my view, in this case, as in other cases of this kind, it is important to try to be realistic. The Magistrates set out a very detailed summary of the evidence that was given, faithfully recording in that summary of the evidence the various discrepancies thrown up, both in the prosecution evidence and in the defence evidence. The Magistrates plainly were aware of, and were purporting to apply, the criminal burden and standard of proof. It is clearly implicit in their findings that they rejected the essential elements of the defence case and accepted the essential elements of the prosecution case.

It seems to me that the reasons given in paragraph 6, succinct though they may have been, were clearly showing that the Magistrates were concentrating on what was, on any view, an important point which was this: had the complainant been punched, as the prosecution were saying, or had the complainant fallen, or may have fallen, that was the crucial question: because here there was no dispute but that the appellant was present at the scene. No-one suggested that if there was a punch it may have been administered by the appellant's father or the friend Nick. The crucial question was: could the Magistrates be sure that the complainant had been punched, as he said, or was there doubt as to that?

The reasons given by the Magistrates in paragraph 6 explained why it was that they were sure that the complainant had been punched by the appellant in that the injuries were consistent with such a punch, and there was evidence for that in the form of the medical evidence as well as to the certain unreliable aspects eluded to by the Magistrates in the appellant and his witnesses' version of events. In those circumstances, although it may be that this kind of appeal may have been forestalled by a more detailed explanation of facts and may have been forestalled by an express incantation of the conventional criminal burden and standard of proof, it seems to me that sufficient reasons were given. Moreover, those reasons, set in the context of the trial, would have been such that an outside objective observer could say that the correct criminal burden and standard had been applied, and such reasons would have indicated to the appellant just why it was that he had been convicted.

In my view, no point of law of any kind, in truth, is raised by this appeal by way of case stated at all. The appellant was convicted and, on the face of it, was convicted by reference to the Magistrates' findings of fact. I would only add this. It was open, of course, to the appellant to appeal to the Crown Court where there could have been a rehearing with evidence adduced. On the face of it, one might have thought that would have been the appellant's obvious option. Mr Watson frankly told me that the appellant had been reluctant to go through, and cause his family to go through, the uncomfortable experience, no doubt, of having to give evidence all over again.

It seems to me important to stress that this court must be astute to watch out for cases which, in truth, are challenges to the Magistrates' decision on the facts being dressed up as being erroneous in point of law. I say that in particular because if an appeal is made to the Crown Court then of course the appellant runs at least the risk, if the appeal is dismissed, of finding his sentence increased. That particular risk is avoided by seeking to appeal by way of case stated to the Administrative Court in the ordinary way. In the event, however, this appeal is dismissed and the question as posed, which perhaps does not entirely meet all the facets of Mr Watson's argument which I have sought to address, is answered in the affirmative.

MR BENSON: My Lord, I am instructed to make a costs application. I am afraid there is no schedule.

MR JUSTICE DAVIS: What do you say the costs should be?

MR BENSON: My Lord, I would ask for an order in the sum of £800.

MR JUSTICE DAVIS: Mr Watson, can you in principle resist an order for costs?

MR WATSON: I do not think I can, my Lord.

MR JUSTICE DAVIS: What about the amount?

MR WATSON: I do not think I can resist that either.

MR JUSTICE DAVIS: I will accept that as reasonable. Costs in the order of £800. 56 days to pay. Thank you very much for your assistance, both of you.