Aitchison, R (on the application of) v Sheffield Crown Court & Anor

This is the judgment of the court.

On 16 June 2011, at Rotherham Magistrates’ Court, the Claimant Barbra Aitchison was convicted of racially aggravated common assault on Shabana Khalid, contrary to section 29 of the Crime and Disorder Act 1998. She was sentenced to a community order, with an order requiring her to compensate Miss Khalid and a further order restraining her from contacting the inhabitants of and visitors to the house in which the assault took place, which was the home of Miss Khalid’s sister, Yasmin.

The Claimant appealed to the Crown Court. Whilst the appeal against sentence was successful in part, her appeal against conviction was dismissed on 2 December 2011 by His Honour Judge Kelson QC sitting with justices at Sheffield Crown Court. She now applies by way of judicial review to quash that dismissal, on the ground that the reasons given by the court were inadequate. No separate challenge is made in respect of the sentence or subsidiary orders.

At the end of the hearing on 27 July 2012, we indicated that we would dismiss the appeal, with reasons to follow. In this judgment, we give our reasons for that decision.

The charge the Claimant faced was based on a complaint by Miss Khalid, about events on the evening of 9 August 2010. In evidence to the Crown Court – which did not materially differ from her statement or evidence to the Magistrates – Miss Khalid said that, at about 8.30 that evening, she visited her sister, Yasmin, parking outside her sister’s house. She had been there a short while, when there was a knock at the door. Miss Khalid answered the door, where she was met by an aggressive woman, smelling of alcohol and apparently drunk, who demanded that she move her car. It was the prosecution case that that woman was the Claimant. There followed an argument between Miss Khalid and the woman, which lasted for about 5 minutes. During that altercation, the woman pushed Miss Khalid to the shoulder, and aggressively and repeatedly referred to her as a “Paki”, a “Paki slag” and a “Paki bitch”; and suggested that she “should return to her own country”. I say in passing, although it is not relevant to the issues in this case, that Shabana Khalid is a British citizen. The push and the racial comments founded the charge that the Claimant faced.

Later, at a formal procedure, Miss Khalid identified the Claimant as the woman with whom she had had the altercation.

Miss Khalid’s sister, Yasmin, also gave evidence. She said that, Miss Khalid having answered the door, she had heard screaming. She went and saw a woman arguing aggressively with her sister, heard repeated racial language addressed to both her sister and herself, and observed the push. Yasmin thought she recognised the woman as a neighbour, and asked her, “Are you Barbra?”; to which the woman responded that she was. The woman appeared to be drunk.

At an identification procedure, Yasmin failed to identify the Claimant as that woman. She explained that failure in her evidence by saying that the woman had altered her appearance, by not wearing glasses and wearing her hair down. Video footage of the Claimant was shown at the Crown Court hearing, and the submission was made on the Claimant’s behalf that she had not changed her appearance.

The third prosecution witness was Luke Bramhall. He is a young man whose pregnant girlfriend lived in the same street as Yasmin Khalid, and who was a very regular visitor to that street. He had been out one evening around that time to pick up his girlfriend’s grandmother from bingo. On his return, shortly after 9pm, he saw a woman walking up the street, close to where Yasmin lived, who was whimpering and sobbing, and who said, in his hearing: “I’ll kill the black bastards”. He had seen that woman 40-50 times over the previous year, on his regular visits to the street. The observation took place at a distance of 15-40 feet, and lasted about 30 seconds. He identified the Claimant as that woman at an identification procedure.

A PC Darby gave evidence, and said that, about 20 minutes before the alleged incident, he had driven the Claimant home to collect her car keys and then back to her car so she could drive home, and she neither smelled of alcohol nor did she appear to be drunk.

The Claimant gave evidence, in line with her interview. She said she was a neighbour of Yasmin Khalid’s, but she had not been at home on the evening that the alleged incident took place: she had been at a friend’s house. She referred to a history of animosity between herself and Yasmin, and she positively suggested that the allegation against her had been maliciously fabricated.

Her son also gave evidence, to the effect that he was in his bedroom on the evening of the alleged incident, near an open window, and he heard no disturbance. No further witnesses were called. No alibi witness was called.

At the end of the evidence, the appeal was dismissed, Judge Kelson giving the following reasons:

“In considering the evidence in this case, we have very much had in mind what the lawyers call Turnbull guidance with regard to the issue of identification and we have also put out of our minds that which we discerned from the transcript of interviews about some reference to your criminal past. We were all of the view that, in any event, knowing such little about that as we have learned from the interviews, it was not difficult for us to put it out of our minds – it had no real bearing at all on the issues that were before us.

Having weighed up the evidence before us, we have no difficulty at all in accepting the truthfulness of the evidence of the prosecution witnesses. We do not accept the truthfulness of your evidence. We are sure of guilt and this appeal against conviction is dismissed.”

The Claimant contends that those reasons are inadequate, such that the dismissal of the appeal should be quashed.

Of course, we accept that other judges may have given fuller reasons than those. However, the issue for this court is not whether the reasons could have been fuller or even better, but whether they are legally adequate.

The obligation on any court or tribunal exercising judicial functions to give reasons for any decision it might make has, over time, increased. There was a time when it was not customary for a Crown Court exercising its appellate jurisdiction to give reasons at all; but the judgment of this court in R v Harrow Crown Court ex parte Dave [1994] 99 Cr App R 114 established that it must do so. That proposition is now incontrovertible, and Mr Lodato, appearing before us for the Crown, did not seek to suggest otherwise.

How the adequacy of reasons is to be measured was also considered in Dave. Pill J (as he then was), giving the judgment of the court, said (at page 122):

“The Crown Court judge giving the decision of the court upon the appeal must say enough to demonstrate that the court has identified the main contentious issues in the case, and how it has resolved them…. The reasoning required will depend on the circumstances. In some cases the bald statement that the evidence of a particular witness is accepted may be sufficient.”

Therefore, as that short helpful extract indicates, it is insufficient merely to declare or announce that the appeal is dismissed, because that does not amount to any substantive reasoning at all (see, e.g., Pullum v Crown Prosecution Service [2000] COD 206). In its reasons, the Crown Court must show that it has adopted a proper approach and has not misdirected itself: it must at least identify the main issues in the appeal, and indicate how it has determined those issues.

However, what is required to fulfil that duty will depend upon the circumstances of the particular case. In an appeal to the Crown Court, a lengthy or elaborate judgment, such as might be given after a civil trial, will not usually be necessary or appropriate. Indeed, where the determinative issue is factual, narrow and straightforward, a short judgment may suffice (R v Southwark Crown Court ex parte Brooke [1997] COD 81 at page 82, per Simon Brown LJ). Where that issue turns on which witness is telling the truth, although each case will depend upon its own facts, it has been said in a different but parallel context that “it is likely to be enough for the judge… simply to say that he believes X rather than Y; indeed there may be nothing else to say” (Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377 at page 382B per Henry LJ), though it is often helpful to give a fuller explanation. Those comments equally apply to the Crown Court in its appellate capacity.

The questions for this court are consequently whether the Crown Court adequately identified, and then addressed, the determinative issues in the appeal.

Mr Smith for the Claimant, both before the Crown Court and again before this court, submitted that there were two issues. First, there was the veracity of the complainant, her sister and Mr Bramhall: the Claimant contended that the incident never occurred at all, and that it had been maliciously fabricated. Her son’s evidence particularly went to this issue: he said that he was by an open window from which (it was submitted) he would have heard any incident that evening, had it occurred. If the core account of the complainant and her sister was considered truthful, then there was a second issue: was the Claimant properly identified as the perpetrator?

In relation to those issues – and particularly in relation to the issue of identification – Mr Smith submitted that there were several powerful evidential points in favour of the Claimant. Both Shabana and Yasmin Khalid had said that the Claimant appeared drunk and smelled of drink, but PC Darby said that, 20 minutes before she did not. Yasmin failed to identify the Claimant at the identification procedure, and, he submitted, was unconvincing as to why she could not do so. The Claimant’s son’s evidence was inconsistent with the evidence of both the complainant and her sister of a prolonged, loud confrontation. Mr Smith submitted the Claimant was entitled to know why this evidence, favourable to the Claimant, had been rejected; but, in its reasons, the Crown Court had failed to address any of these points specifically.

Forcefully as they were put, we are unpersuaded by these submissions. In our judgment, the primary issue in the appeal – clearly and overwhelmingly – was whether the core account of the complainant and her sister as to what had happened at the door of Yasmin’s house on the evening of 9 August 2010 was believed. The complainant and her sister were adamant that the incident occurred. The Claimant not only claimed she had never been involved in any incident such as that alleged against her, and, on the relevant night, she was elsewhere, she also (i) asserted that the version of events put forward by the complainant and her sister was a fabrication, and (ii) denied that the conversation with Mr Bramhall, that he alleged, had ever occurred. In all of the circumstances, there was no room for mistake on the part of Miss Khalid and her sister as to whether the incident had happened; and hence that issue of credibility was, in substance, an issue of veracity. In relation to their core account of what happened on the evening of 9 August 2010, was the Court satisfied, to the criminal standard, that Miss Khalid and her sister were being truthful?

By the reasons the Crown Court gave, it is clear that they had that simple and straightforward issue well in mind; and clear how and why they disposed of it as they did. They accepted the truthfulness of their account, and were consequently satisfied, to the appropriate standard of proof, that there was an incident in substance as they related. In our judgment, the identification of that issue and how the Crown Court disposed of it are eminently clear from the reasons the court gave, brief as those reasons were.

Nor do we consider the Claimant’s case any stronger in relation to the issue of identification. Given that, contrary to the Claimant’s primary case, there was an incident in which the complainant was assaulted and racially abused in the manner she and her sister described, there was in our view very little if any scope at all for the identification of the Claimant as the perpetrator to have been mistaken. This was not a case of a fleeting glimpse of a stranger; far from it. The perpetrator of this assault and abuse had had a five minute argument with both Miss Khalid, face-to-face.

By accepting the evidence of the complainant and her sister, the court made clear that it did not accept the Claimant’s (unsupported) alibi evidence as being possibly true. Further, in its reasons, the Crown Court indicated that it had taken into account the relevant guidance from Turnbull [1977] QB 224 on the dangers inherent in identification, so far as there could possibly have been a mistake. Mr Smith properly conceded that the court must be taken to have understood that guidance: there was no need to set out that guidance in any detail.

In respect of the evidential points made by Mr Smith, the Crown Court had seen all of the witnesses including the Claimant give evidence on the relevant events. With regard to the evidence of the complainant and her sister that the Claimant appeared drunk and smelled of drink, it seems to us to be of little moment indeed that a police officer did not consider she was drunk some time before. Although Yasmin failed to recognise the Claimant at an identification procedure, the complainant did; and, as we have indicated, it was part of Yasmin’s account (which the Crown Court accepted, as they were entitled to do) that, during the incident, she asked the perpetrator whether she was “Barbra” and the perpetrator confirmed that she was. In support, Mr Bramhall also identified the Claimant as the person whom he had seen, and who had made racial comments to him, in an incident entirely denied: the court accepted his evidence as true, too. On the other hand, the Claimant’s son’s evidence went to the issue of whether the incident happened at all, rather than the identity of the perpetrator, if it had.

In the circumstances, we do not accept that the evidential points made by Mr Smith were significantly powerful or compelling points in favour of the Claimant, such that they required specific consideration in the court’s reasons with regard to identification which was, as we have said, an issue that was neither at the focus of the appeal nor at all strong. Indeed, it was especially weak.

For those reasons, in our judgment, the Crown Court both adequately identified the determinative issue in the appeal, and adequately addressed those issues in its reasons by setting out why it decided those issues as it did.

Finally, we should deal with a further submission made by Mr Lodato for the Crown, namely that the challenge to the Crown Court’s decision should not have been brought in this court by way of judicial review, as it has been: if the Claimant considered the reasons of the Crown Court inadequate, she ought to have made a request of the court for further reasons. Indeed, he submitted that, through her advocate, she was obliged to do so; and erred in bringing these proceedings in the absence of such a request.

In support of that submission, he relied on a number of authorities. The well-known case of English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605 concerned the adequacy of reasons in a civil judgment. Under the heading “Amplification of Reasons”, Lord Phillips of Matravers MR, giving the judgment of the court, said:

“24.

We are not greatly attracted by the suggestion that a judge who has given inadequate reasons should be invited to have a second bite of the cherry. But we are much less attracted at the prospect of expensive appellate proceedings on the ground of lack of reasons. Where the judge who has heard the evidence has based a rational decision on it, the successful party will suffer an injustice if that decision is appealed, let alone set aside, simply because the judge has not included in his judgment adequate reasons for his decision. The appellate court will not be in as good a position to substitute its decision, should it decide that this course is viable, while an appeal followed by a rehearing will involve a hideous waste of costs.

25.

Accordingly, we recommend the following course. If an application for permission to appeal on the ground of lack of reasons is made to the trial judge, the judge should consider whether his judgment is defective for lack of reasons, adjourning for that purpose should he find this necessary. If he concludes that it is, he should set out to remedy the defect by the provision of additional reasons refusing permission to appeal on the basis that he has adopted that course. If he concludes that he has given adequate reasons, he will no doubt refuse permission to appeal. If an application for permission to appeal on the ground of lack of reasons is made to the appellate court and it appears to the appellate court that the application is well-founded, it should consider adjourning the application and remitting the case to the trial judge with an invitation to provide additional reasons for his decision or, where appropriate, his reasons for a specific finding or findings. Where the appellate court is in doubt as to whether the reasons are adequate, it may be appropriate to direct that the application be adjourned to an oral hearing, on notice to the respondent.”

Mr Lodato contended that the spirit and reasoning of English should be extended to cover decisions of the Crown Court in its appellate capacity. He submitted that a request for better reasons ought to be made at the end of the relevant Crown Court hearing, after the decision and (allegedly inadequate) reasons are announced; and, in any event, a dissatisfied party should proceed by way of case stated in which the Crown Court could, if it considered appropriate, give further reasons. There is of course no permission stage in an appeal by way of case stated.

Although there do not appear to be any criminal authorities directly in point, Mr Lodato relied upon two cases involving Crown Court appellate decisions. First, he referred us to the following passage from French J giving the judgment of this court given on 3 March 1995 in R v Southwark Crown Court ex parte Samuel (1995) (Case No CO/1693/94):

“In appropriate cases of course reasons should be given in any event, but no application should be made to this court [i.e. the Divisional Court] unless reasons have been asked for and refused. The request for reasons, if none are stated by the court, should normally be made at the conclusion of the hearing, and if not then should be made subsequently and before any consideration is given to an application to this court.” (emphasis added)

In R v Snaresbrook Crown Court ex parte Input Management Limited (1999) 163 JP 533, Kennedy LJ giving the judgment of this court, having quoted that paragraph (although his reported judgment unfortunately omits the italicised words), said:

“That we would of course agree,…”.

However:

In this case, the Crown Court clearly gave some reasons for its decision to refuse the Claimant’s appeal, the issue raised by the Claimant being the adequacy of those reasons. The procedural course adopted by the Claimant – to seek judicial review of the decision on the basis of inadequacy of reasons – was the perfectly appropriate course.

However, for the reasons we have given, we consider that the reasons given by the Crown Court in this case were adequate; and we consequently dismiss this application.