CO/1799/2006 
Neutral Citation Number: [2006] EWHC 1796 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2 

Thursday, 6th July 2006

B E F O R E:

MR JUSTICE WILKIE
 
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LIAM RILEY
(APPELLANT)

-v- 

DIRECTOR OF PUBLIC PROSECUTIONS
(RESPONDENT) 
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MR P WEATHERBY (instructed by Howells, Sheffield) appeared on behalf of the APPELLANT
MR I MULLARKEY (instructed by CPS Barnsley) appeared on behalf of the RESPONDENT
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J U D G M E N T 
1.	MR JUSTICE WILKIE:  This is an appeal by Liam Riley by way of case stated against the decision of the Barnsley Magistrates sitting on 1st December 2005, which concluded that Mr Riley was guilty on 26th March 2005 at Barnsley of using towards another threatening, abusive or insulting words or behaviour with intent to cause that person to believe that immediate unlawful violence would be used against him or another by any person, or to provoke the immediate use of unlawful violence by that person or another, whereby that person was likely to believe that such violence would be used or it was likely that such violence would be provoked; that offence being contrary to sections 4(1) and 4(4) of the Public Order Act 1986.
2.	Mr Riley, having been convicted of that offence, he being a person of previous good character, was sentenced to a community punishment order of 100 hours, bound over to keep the peace for two years and was required to pay £250 costs.  Mr Weatherby, who represents Mr Riley, says that he is instructed that the 100 hours of work pursuant to the community punishment order has in fact been completed, though there is no direct evidence before the court that that is so. 
3.	The magistrates have, in their case stated, indicated the facts which they found.  This was a somewhat unusual case because the defendant did not seek to put forward any positive version of events because he claimed, and indeed there was medical evidence to support his claim, that he suffered from a memory disorder and he claimed that he had no memory whatever of the events of that evening.  Therefore there was no contest in relation to the evidence presented by the Crown, insofar as it was able to place evidence before the court.  
4.	The facts found by the magistrates were as follows, as set out in paragraph 2 of the case stated: 
"(a) A minibus had been arranged to take the appellant, his friends and his brother to Barnsley town centre at approximately 11.20 pm on Friday 25th March 2005.  
 (b) On the CCTV footage we were shown the man wearing a pink shirt was the aggressor.  
 (c) The man wearing the pink shirt moved forward with his fists raised and punched another man before he was punched.  
 (d) The man wearing the pink shirt ended up injured on the ground and had blood all over his face.  
 (e) A pink shirt with blood stains down the front was recovered from the appellant's father's home by a police officer on 27th March 2005 [I interject at this point to indicate that Mr Weatherby says, and it is not in dispute, that the pink shirt was not recovered to the extent that it was before the court or was available for any forensic evidence to be forthcoming].  
 (f) On 26th March 2005, the appellant woke up in Barnsley District General Hospital with facial injuries. 
5.	Those were the only facts which the magistrates found in relation to the events of the evening and morning of 25th/26th March and the immediate investigation on 27th March.  They then went on to make certain findings of fact as to what happened subsequently in relation to the investigation:  
"(g) On 2nd April 2005, the appellant attended Barnsley police station with his uncle and his solicitor and handed to the police a prepared statement in which he stated he would not be answering any questions about the incident because he could not remember anything.  
 (h) The appellant remained silent throughout his interview.  
 (i) The appellant was shown a video of the incident in the interview.  
 (j) In 2001 the appellant was diagnosed as having a memory disorder but entered full-time education shortly thereafter.  
 (k) The only medical report available was dated 24th April 2001.  
 (l) The appellant had not been medically examined about his memory disorder since 2001."
6.	The magistrates then proceeded to make certain findings of fact relating to the trial itself.  They said this:
"(m) The appellant understood the warning given to him in court in accordance with section 35(2) Criminal Justice & Public Order Act 1994.  
 (n) The appellant chose not to give evidence at trial.  
 (o) The appellant was fit to give evidence at trial.  
 (p) There was no reasonable cause why the appellant should not have given evidence at trial.  
 (q) The appellant was the man shown on the CCTV footage wearing the pink shirt.  
 (r) The appellant was guilty beyond reasonable doubt of the offence charged."
7.	At the conclusion of the prosecution case, a submission was made by the appellant of no case to answer.  In the course of responding to that submission, the prosecution sought, successfully as it turned out, to argue that the magistrates, in determining that question, were entitled to and should draw an adverse inference from the fact that the appellant had declined in interview to answer any questions.  
8.	It is now conceded that the magistrates, having acceded to that invitation, erred in law on the basis that the appellant did not rely at the trial on a fact which he failed to mention in interview.  The magistrates in the case stated said that they were of the opinion, amongst other things, that the appellant relied on the fact at trial that he was not the man shown on the CCTV footage wearing the pink shirt.  It is now conceded that that was an error because the highest the appellant's case went was that he put the Crown to proof that he was the man shown on the CCTV footage wearing the pink shirt.
9.	Without more, that would dispose of the appeal as the magistrates made a clear error of law in the course of considering the appellant's submission of no case.  The prosecution, however, responding to the appeal, say that the way in which the justices state their case reveals that their conclusion at the conclusion of the prosecution case, that there was evidence such that a reasonable tribunal might have convicted the appellant on the evidence so far laid before it, was one to which the magistrates did come, and were entitled to come, without relying on the adverse inference from failure to respond in interview.
10.	The respondent therefore says that this court should, in reliance on those findings of fact, accept that the magistrates could lawfully have allowed the case to proceed, and indeed the terms of the test laid down by Lord Chief Justice Lane in Galbraith 73 Cr App R 124 are such that the adjudicator at that stage has no discretion in the matter, because if upon an assessment of the evidence on one possible view of the facts there is evidence on which the fact finder could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried to the conclusion of the trial.
11.	The way in which the respondent puts its contention really relies on paragraph 6(b) of the case stated.  In paragraph 6 the magistrates set out their reasoning in the form of saying that they were of the opinion that, and a number of subparagraphs then follow.  They say this:
"(a) At the conclusion of the prosecution case there was a case to answer.
 (b) The evidence at the conclusion of the prosecution case was such that a reasonable tribunal might have convicted the appellant on the evidence so far laid before it ..."
They then in paragraphs (c) to (g) set out their opinion in relation to the adverse inference pursuant to section 34 of the Criminal Justice and Public Order Act 1994, in which they conclude that, whilst it would have been reasonable initially for the appellant not to have answered the officer's questions which relied upon his memory of the events, he could reasonably have been expected to answer whether or not it was he who was the man wearing the pink shirt as shown on the CCTV played to him, and that he unreasonably chose not to answer questions which merely related to recognition, not memory.  They then concluded they were entitled to draw the adverse inference, relying on, as I have found erroneously, the fact that he was relying at trial on an assertion that he was not the man in the pink shirt.
12.	Mr Weatherby contends that the magistrates having erroneously come to the conclusion that there was a case to answer in the sense that they relied, at least in part, on the ability to draw an adverse inference, it would simply not be appropriate for this court itself to arrogate to itself the task of assessing whether or not the magistrates would have come to the same conclusion had they not misdirected themselves in law and had regard to the adverse inference to which I have referred.
13.	Whilst I have some degree of sympathy with the prosecution, who say that there were four strands of circumstantial evidence which the magistrates were entitled to conclude, and in the context of the finding of guilt did conclude, provided compelling evidence that the appellant was the man on the CCTV footage wearing the pink shirt, it does seem to me that it is an extremely difficult task to try to separate out in the magistrates' minds the extent to which they relied upon the improper adverse inference, either in support of their conclusion based essentially on the other evidence or as an integral part of a single decision taking process.  A case stated is not a document drawn up with the care and precision of a statute and, whilst it is a fair contention that the prosecution make that it may be that these magistrates did have regard to the circumstantial evidence in the main and formed the conclusion that there was a sufficient case to go forward and only relied impermissibly on the adverse inference very much as a marginal matter as a make weight, it does seem to me that it would be unsafe to conclude that that must be the case so that this conviction can stand, notwithstanding the fairly fundamental error which the magistrates made in rejecting the appellant's submission of no case to answer.  
14.	It therefore seems to me that, notwithstanding the prosecution's argument which has its attractions, the only just course for this court, in the light of the manifest error of the magistrates, is to uphold this appeal.
15.	The question therefore arises whether the order of the court should simply be that the conviction is quashed.  I have some sympathy with the appellant, if indeed it be the case, that he has suffered already the essence of the punishment ordered by the court, namely the completion of 100 hours community punishment order.  However, there was in addition to that the question of a bind over for a period of two years, together with the matter of costs, and, as Mr Mullarkey has indicated, this was not the only trial which arose from the circumstances of that night.  There was circumstantial evidence to suggest that this defendant was indeed guilty as charged, and it does seem to me to be right that the issues of substance ought to be tried by a court, addressing itself correctly to the various issues of drawing of adverse inferences which may arise or may not arise now in this case.  
16.	Therefore the order of the court is that the appeal succeeds, the conviction is quashed, but the case is to be remitted to be tried by a different bench of the Barnsley Magistrates' Court.
17.	MR JUSTICE WILKIE:  Mr Weatherby, Mr Mullarkey, are there any other orders that you require me to make? 
18.	MR WEATHERBY:  My Lord, Mr Riley is fully legally aided, as I am instructed.
19.	MR JUSTICE WILKIE:  Yes.
20.	MR WEATHERBY:  And I am instructed to ask for costs in order to protect the Legal Services Commission.
21.	MR JUSTICE WILKIE:  Yes.  Mr Mullarkey, what do you say about costs?
22.	MR MULLARKEY:  Well, I am in your Lordship's hands as to costs.  I have no instructions specifically in respect of them.  Clearly if that would be the usual order, then I cannot resist it.
23.	MR JUSTICE WILKIE:  Mr Riley, do you have any figure in mind?
24.	MR WEATHERBY:  I am afraid I do not, no.  I wonder whether we could submit a figure within seven days.
25.	MR JUSTICE WILKIE:  Yes.  Well, you have succeeded, it may be a question of which pot the money comes out of, but --
26.	MR WEATHERBY:  Apparently it makes a fairly significant difference in terms of the seeking of legal aid in the future.
27.	MR JUSTICE WILKIE:  Yes.  I am prepared to make an order that the respondent -- who is the respondent here?  Is it the magistrates' court or is it the DPP?
28.	MR WEATHERBY:  I think the real respondent is the DPP.
29.	MR JUSTICE WILKIE:  Yes.
30.	MR WEATHERBY:  And on the particular facts, although I am indebted to my learned friend for the concession made, it was in fact --
31.	MR JUSTICE WILKIE:  It was the prosecution's urging that led the magistrates perhaps to accede to it erroneously.  
32.	Very well.  I will make an order that the respondent to this appeal pays the appellant's reasonable costs.  I will require the appellant's solicitors to submit their bill within seven days, detailed assessment if not agreed.
33.	MR WEATHERBY:  I am obliged.
34.	MR JUSTICE WILKIE:  I think formally I need to answer the questions which are posed.
35.	MR WEATHERBY:  Yes.
36.	MR JUSTICE WILKIE:  The questions were: "Were the Justices correct: (a) to find on the evidence that there was a case to answer and in so doing to rely upon an adverse inference because when questioned, the appellant had been shown the town centre video and had the opportunity to admit or deny that it featured him, but failed to do so?" - the answer to that is "no".  "(b) to find that the appellant relied on a fact in his defence that he had failed to mention when questioned and thereby to draw an adverse inference?" - the answer to that is "no".  "(c) to find notwithstanding his medical condition, it was desirable for the appellant to give evidence on the grounds that he was still able to give evidence as to the identity of the persons in the video?" - well, I am not going to answer that because it is unnecessary for the disposal of the case as the answers to (a) and (b) mean that the conviction must be quashed.  If I had been required to do that in order to dispose of the conviction, I would have found against Mr Weatherby on that, that is to say the section 35 point.
37.	Question 2 does not arise in relation to 1(a).  Question 2, in relation to 1(c), the answer to that is "no".  Question 3, the answer to that is "no", purely because of the answers to 1(a) and 1(b).