Johnson, R (on the application of) v Bristol Crown Court

MR JUSTICE LANGSTAFF: This is a renewed application for permission to appeal, leave having been refused by William Davis J.

The application is to quash the decision of Bristol Crown Court sitting at Taunton on 24 June 2016. On that day, His Honour Judge Ticehurst and justices dismissed the Claimant's appeal against his earlier conviction before the Magistrates' Court of a charge of battery, but the Claimant, an orthopaedic surgeon, was convicted on 11 February 2016 by the magistrates of having bitten his secretary on the arm. It was against that that he had appealed.

The hearing lasted three days, in the course of which 14 witnesses were heard. The bench retired not for very long and returned late on what was a Friday to dismiss the appeal. They did not then give developed reasons or even headline reasons, but did so on 5 July 2016.

There are four grounds of appeal. They are that the convictions were against the weight of the evidence; secondly, that there was procedural impropriety; thirdly, that there were defective non-contemporaneous reasons; and fourthly, that the way in which matters had been conducted amounted in total to a violation of the Article 6 and Article 8 rights of the defendant.

The case arose essentially in very limited circumstances. On 2 September, the complainant, who was the surgeon's secretary of five years' standing, albeit on a self employed basis, was sitting next to him. It was common ground at trial and on appeal that they had been sitting side by side when the relevant incident occurred, she sitting to his right hand.

It was agreed that his lips came into contact with her skin. The precise nature of the contact was in some dispute, but it was also not in dispute that he did so when she, sitting next to him, so close that her left shoulder was touching or almost touching his right shoulder, leant across so that her upper arm would be directly in front of his face with her hand pronated, that is palm facing down, to retrieve some document which was in front of him or to his left. When she did that, his lips then came into contact with her skin. That was a deliberate move on his part, he said, to give her a peck or a kiss.

It was common ground that immediately after that she said "you bitch" and conveyed to him orally and by her reaction that what he had done had hurt. Her description had a few additional words, but certainly it was common ground that she had complained immediately in terms describing him as a "bitch".

It was also common ground that she told him at the time words to the effect that it had hurt. He asked if he could have a look. Her account was that he had attempted to rub it better. His account was that they both looked at her arm. He said he saw no red mark, although later she was seen to have a red mark in the spot where one would expect the mouth to have made contact with the upper arm.

Two days later, he wrote a letter to her in which it was plain that he was accepting much of what she was later to say had occurred. It included the words, "I did not aim to bite you". He was not there confessing to having bitten.

That was the central event. The issue was whether the contact had been a bite or something which was a joke or similar as between the parties. The Claimant described it later as a mild rebuke, but also as an affectionate kiss, two not entirely compatible descriptions.

The grounds have to be seen against that background.

During the course of the hearing, counsel acting for the defendant sought to show that the complainant's account was not to be trusted. He did so by asking a number of questions, not so much about the events of the 2nd, which, as I say, were in many central aspects not in dispute, but in respect of surrounding circumstances. He complains that, during the hearing, the judge did not conduct the matter fairly.

He draws my attention to the case of R v Steven Anthony Myers, a decision of the Court of Appeal Criminal Division in which a judge had, following a plea on a basis of fact which the judge could not accept without a hearing, conducted a Newton hearing. When that hearing occurred, the judge intervened in a manner which made it plain that he did not believe a word that the defendant was saying, as though he had a predetermined view. The court said in its ultimate paragraph:

The principle is not stated in that case, but I would accept entirely not only that it is arguable, but it seems to me clear, that any person is entitled to a hearing before a fair and impartial tribunal. That is the essence of hearing a case justly. The convenience of the court, whether it be matters of timing or other considerations, has nothing to do with justice directly and justice, not convenience, must take prime place. A person is entitled not only to have a hearing which is, in fact, fair, but one which appears to be so.

In this case, Mr Henry complains that the learned judge decided to press on to a conclusion on 24 June, that is on the Friday, even though he had raised the issue of going part heard. He has discovered since, he mentions to me, that one of the magistrates was due to go on holiday in the week following.

He complains that the time for consideration was manifestly inadequate (it was something in the region of half an hour or 45 minutes), giving rise to a legitimate fear that the court was acting under extreme pressure of time. That period of retirement was interrupted by a fire alert. There is no evidence that the judge and magistrates exited the building. The material suggests, but there is no witness statement to support it, that they continued deliberating despite the alert.

When announcing the decision without reasons, it was said to have been considered at some length following some considerable consideration of the matter, but that did not fit with those facts as to time.

The judge indicated on an earlier occasion that counsel was taking too long about his cross-examination and at one stage suggested that there should be no more than a further five minutes of it. At the time, Mr Henry observed that he wanted rather longer than that. As it happened, the judge - having raised that point, Mr Henry having responded ,and the judge having somewhat curtly said effectively that Mr Henry had to do what he, the judge, wished – nonetheless gave him the time, it would appear, in due course.

But it is clear from that that there was a certain tension. The judge let it be known, it seems to me, that there was an undue focus by counsel upon matters outside the central questions which emerged from the account which I have given, as to which there were only two witnesses, her and him.

Arising out of that, it is said that the reasons which were so quickly reached were defective. They did not carry the name of the court, nor was there any suggestion on its face that the other members of the court endorsed or contributed to them. Mr Henry says today that the early passages in the judgment owe much in derivation to the way in which a circuit judge would address a jury, resembling, to the point of quoting, from the Bench Book and quoting, he submits, inappropriately, in the context of an assault case, from those directions as to consistency, previous consistent statements, and reaction from those directions which are common place in what might be described as sex cases.

He was concerned that the reasons when given were not, therefore, the reasons of all three members of the court. There was substantial concern that the reasons given unfairly marginalised and discounted the evidence of an expert witness, Mr Sheriff, a consultant anaesthetist, Mr Coats, and Elizabeth Jones, who had given evidence which was contradictory to that which the complainant had given as to the complainant's desire to set up a business doing the sort of work that she had done for the Claimant, but for others too. The reasons did not mention sufficiently internal inconsistencies in her account. They appeared to downplay the inconsistencies in her case, but not in the Claimant's case, and to minimise the evidence to which her reaction to the events might speak.

I would like, against that background, to consider the grounds as they stand. I begin with ground three because that is where Mr Henry began his submissions to me and on which he concentrated. This is the question of whether the reasons were sufficient or defective.

There are two parts to the challenge. One is that they lacked formal validity. I do not think it is arguable. I must remember that I am not determining the case. I have no right to do so. I am merely asking whether it is open to another judge sitting as a full court, hearing both sides, to come to a conclusion in favour the Claimant and whether, therefore, I should grant permission for the case to be heard. But it seems to me untenable to claim the judgment is not the judgment of all three. There is no reason to think that it is not merely by the fact that it is plainly drafted, as it normally would be, by the circuit judge chairing the panel. It is entirely appropriate that the sentiments, as put in the Bench Book when directing a jury, are the sentiments which the judge says that the bench is applying when looking at the facts before them. There is no reason to disbelieve him.

As to inadequacy of reasons, the test is this: does the losing party know sufficiently why they have lost and the other party has won? It is an essential aspect of justice that the individual who is on the losing side knows why. It is important for two other reasons as well. First, it demonstrates to an appellate court or court of review what the reasons are for a decision. Secondly, it demonstrates to the public, this being a public hearing, that justice has indeed been done. It may act additionally as an aide-memoire to the decision making body concerned to make sure that it does indeed have proper reasons for the decisions which it is reaching and has dealt with the matters which it should consider.

However, there are limitations. It is well recognised that a judgment does not have to dot every I nor cross every T. It does not have to deal with any matter and every matter, only those matters which it is necessary to deal with to deal with the central matter of dispute; in this case, whether there was a battery by assault which, on the prosecution case, involved biting.

Where there is a significant strand of defence, one would expect to see that mentioned and dealt with in a judgment. Otherwise, the losing party would be entitled to think that that had not been properly dealt with by the court.

Here it is absolutely clear to me that the court considered the central question. The reasons given for concluding as it did were obvious and clear. The reasons for believing and preferring the Claimant's account to the Appellant's account as to the central incident are also, in my view, clear. In particular, the court said that the Appellant had examined the arm. He had reassured the Claimant that there was no mark. That indicated to the judge and justices that it was not merely a peck or a kiss, if by peck at least one means something trivial, because it would hardly be likely it could have caused any mark or any hurt, as it appeared to do on this occasion.

It was having regard to matters such as that, when dealing with the accounts of the two as to the events of the day, that it was plainly entitled to and did come to the conclusion it did, for reasons which appear to me to be cogent and which at this level cannot be gainsaid directly.

Mr Henry raised a question whether or not the complainant had other motives for doing as she did. As the judgment makes clear, this amounted to saying that she had taken advantage of the incident in order to complain of a bite which did not occur at that point, and hurt which had not then happened, and to take this further, to local management at the hospital, within a matter of a day or so, and had done so in order to complain about him so that she might be free of the constraints of her relationship with him so that she could pursue her intent of obtaining a better job or developing her private work. This, on the face of it, is not an obvious motive, but nonetheless it was pursued and the judge and justices had to look at it.

They also were invited to consider whether the Claimant had exaggerated her response to what had occurred by reference to the way she conducted himself both with other employees of the defendant, in the way in which she appeared to react without any discomfort or discomfiture in her relationships with the Claimant and with Mr Coats, an anaesthetist with whom it appears he was reasonably friendly and with whom he regularly worked, and therefore used this as support for his case that the Appellant had been fabricating the essence of the incident, which, on this account, on this approach, was a bite.

He called a doctor, who had looked at photographs some time after the event, to say that he did not think that that was consistent with the way in which a bite mark would have appeared in the deltoid region of the upper arm. Nor, he submitted, had there been sufficient reference made to the fact that the complainant had revealed, not at first but in very imprecise terms, that the Claimant had bitten her once before. Where precisely she could not say, when precisely she could not say and in what circumstance precisely she could not say. This, he suggested, showed that her evidence as to this occasion was not to be trusted.

The issue for any court is whether those matters had sufficiently been dealt with by the judgment. In general, it would be sufficient for a judgment to say why, in respect of the central incident, the judge and justices thought it had happened. As I say, there can be no dispute that it did that.

Did it deal with the question of inconsistencies? It did. Mr Henry's complaint is that it did not do so sufficiently. The inconsistencies began to be considered at paragraph 17 with the words:

It dealt with the question of whether or not she had complained to Richard Bents on the 2nd or on the 3rd. It did refer to the fact that she said that he had bitten someone else previously and had said in her evidence that he had bitten her before. It did recount her inability to remember being bitten or the circumstances. It reminded itself, entirely correctly, that inconsistencies are common in the court. They may indicate a false complaint, they may not. Different people react in different ways.

In paragraph 22 it examined the conclusions it drew and directed itself that if they were sure that the essential parts of the complainant's account were true, they would act on that conclusion. So the judge and justices were not saying that there were no inconsistencies. They were not refusing to discuss them. They did not fail to recognise them. They were attempting, as I read paragraph 22, to put them into the context in which they saw the central event, as I described it, as central in their own reasoning. They balanced that by recognising the good character of the defendant.

It was not the only time that the court looked at inconsistencies in the evidence. It dealt with what the Claimant had said to Miss Jones. It dealt with the question whether her reaction had been manufactured and asked whether her outburst, "you bloody bitch, you bit me", or, according to the Claimant, "You bitch, that hurts", would or could have been manufactured without some factual basis to cause her to speak out in the way it did.

It examined Mr Sheriff's expert view, having reminded itself earlier, entirely properly, that expert evidence is part of the picture of the whole case called to assist a court in the light of experience which the expert has but the court does not.

The conclusion, having taken all of that into account, was, as I have recorded. I do not see any real possibility that any court, looking at this judgment and asking whether the inconsistencies had been considered appropriately within the judgment, could conclude otherwise than that the court was entitled to deal with them as it did and that the reasons were sufficient to show why it was that the Claimant had lost.

I turn to the much linked question whether the decision was against the weight of the evidence. This is a very difficult ground ever to make out on an appeal because weight is essentially a matter for the fact-finding court.

The general approach is to regard a decision making body as entitled to come to a conclusion it does unless to do so would be perverse. Perversity is a high hurdle. It is reaching a decision which flies in the face of reason or would cause there to be astonished gasps from the objective observer.

Given the central dispute or central events that I have recounted and the degree to which there was a measure of agreement about most, if not all, of those and given the action of the Claimant in sending the letter he did on 4 September to her, on which the court placed some emphasis, I cannot say that it was perverse for the court to conclude as it did. Weight of evidence is always a matter of judgment. Judgment, unless it is perverse, is very difficult indeed to appeal successfully. I see no reasonable prospect that that could happen here.

As for procedural impropriety, I recognise Mr Henry's unease at being told, without any real notice, that he had five minutes to conclude a cross-examination which he was well in the middle of. But as it happened, no consequence of any note, I think, arose from that given that he was then allowed additional time.

As to what it indicated as to the judge, I accept the approach which William Davis J explained in his written refusal that judges have the task of case managing. Case managing necessarily may involve guillotining parties and good judging often requires a judge to remind advocates of the focus which the court at least feels that the advocate should have.

There is room for proper difference about what that focus should be, which is often where a court and advocate may conflict, if they do. But it is not, to my mind, evidence which would show to the well-informed, objective observer that there was any real risk here of bias, which is the test propounded in R v Gough and other cases which deal with the test to be applied as to apparent or real bias. There is no question of real bias. It is a question of apparent bias in the present case.

The alleged violation of Article 6 and 8 rights is, as I see it, parasitic upon grounds one to three and has no independent force of its own. I have not been asked to hold otherwise by Mr Henry (I see he is nodding) on that point.

It follows that for the reasons which I have given, I hope that I have dealt with the points which have been made, even if not to Claimant's satisfaction. I should say that I have read much (I cannot say I have read all) of the material. I have certainly read the material which, in the skeleton arguments and grounds, the Claimant directed me to do. My view has ultimately to be that in this case, there is no tenable ground for persuading a court that the decision of the Crown Court could be and should be set aside or quashed.

It follows that I dismiss this application.

MR JUSTICE LANGSTAFF: Have I dealt with everything, Mr Henry?

MR HENRY: My Lord, I am very grateful to you for the gracious way in which you heard this appeal.

I am sure it is an oversight, but your Lordship will remember that I opened up with the issue of paragraph 74 of the reasons --

MR JUSTICE LANGSTAFF: Yes.

MR HENRY: -- where an adverse inference deleterious to the Claimant's credibility in he said, she said case was founded on a false factual premise. Your Lordship will remember that I took you to five incidences where it was absolutely plain in the evidence of the Claimant that he had not been confronted by a distraught or broken woman and that he was relating that which had he been told by Reece Jones.

Similarly, the ambiguity in Coats' evidence was resolved, I hope, in favour of that interpretation, particularly given that no question arose either by the court or the prosecution in respect of it.

I also dealt, of course, with the fact that the complainant had never suggested that she had been distraught on Friday the 4th.

I am sure it was an oversight, but your Lordship will understand why I am on my feet for the interests of the Claimant. If the court is able to offer further reasons in respect of that, I would be most grateful. Obviously, my Lord, I say that with great deference. I am sure that you would not consider that there was any impertinence.

MR JUSTICE LANGSTAFF: Not in the least impertinent, Mr Henry, no.

I had rather read that together with the various other matters which related to the overall questions and focusing centrally upon the events, as to which, as I say, there was a great deal of common ground, of 2 September. As to that, the quote which the court gave was strictly accurate. The interpretation of it, I think, you have a point that it was not particularly.

It was one of those cases where in many judgments, there are infelicities. There are bound to be. One cannot found an appeal on pointing to some of the matters which might have been better expressed. They said this was an important matter. I cannot see logically how it stands as really important when one is looking at the reasons which the court actually gave for choosing between his and her account as to the central events.

Standing back and looking at the whole picture, one had a picture of her case (this is what the court seemed to me to be doing) compared to a picture of what his case would have to be if that were not so.

MR HENRY: My Lord, I am very grateful for your indulgence.