Neutral Citation Number: [2017] EWHC 1162 (Admin)
Case No: CO/420/2017
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION 
DIVISIONAL COURT

Royal Courts of Justice 
Strand, London, WC2A 2LL

Date: 18/05/2017

Before :

LADY JUSTICE THIRLWALL MR JUSTICE HADDON-CAVE
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Between :

	JS (a child	Appellant	
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	DIRECTOR OF PUBLIC PROSECUTIONS	Respondent	

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Mr David Williams (instructed by McMillan Williams Solicitors Ltd) for the Appellant 
Mr Simon Heptonstall (instructed by CPS Appeals and Review Unit) for the Respondent

Hearing date: Wednesday 3 May 2017
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Judgment Approved
LADY JUSTICE THIRLWALL AND MR JUSTICE HADDON-CAVE:

Introduction

1.	This is the judgment of the Court.
2.	This is an appeal by way of Case Stated against the Appellant’s conviction on 31st October 2016 by the Camberwell Magistrates of an offence of tampering with a motor vehicle contrary to section 25 of the Road Traffic Act 1988.

3.	Section 25 of the Road Traffic Act 1988 provides:

“If, while a motor vehicle is on a road or on a parking place provided by a local authority, a person
(a)	gets on to the vehicle, or
(b)	tampers with the brake of other parts of its mechanism, without lawful authority or reasonable cause he is guilty of an offence.”

4.	The following admissions pursuant to section 10 of the Criminal Justice Act 1967 were placed before the Magistrates:
“1. On Tuesday 21st June 2016 at 0800 hours, the Complainant Diana VIG parked her white Honda 125cc motorbike, VRM LM61 GCF, on Broom Grove, London. The bike was locked at the front with a chain and the keys were in her possession. At approximately 2020 hours, she returned to the bike and found it was no longer where she had left it. The keys were still in her possession and she did not see anyone take the bike.
2.	On Thursday 7th July 2016 the bike WRM LM61 GCF was located along Cresswell Road, SE25 4LS. It was taken to Windmill Road Police Station, Croydon in order to be forensically examined.

3.	The Streamline forensic report from Victoria Louise PHILLIPS is agreed. The SFR/1 and vehicle examination report was attached to the admissions. The forensic link is Exhibit VLP/1 which is a wet swab from the exposed ignition wires from the front panel of the scooter.

4.	The defendant attended in a voluntary capacity and was interviewed under Caution during a PACE compliant interview on the 29th July 2016 between 1339 hours and 1350 hours. He provided a prepared statement.

5.	Proceedings against the Defendant were then initiated by way of postal requisition on the 16th August 2016 at approximately 1500 hours by PC Tom MORRIS.

6.	There were two arrests in relation to this matter.”

5.	There were two prepared statements by the Appellant dated 29th July 2016 attached to the admissions. In the first statement, the Appellant said:

“I JS will say:

I deny any involvement in the theft of this motorbike. I have been told that Broom Grove is in Southwark. I have never been to Southwark other than today.

I do not know where Cresswell Road is, but understand that it is near the Country Park which I do go to.

I recall seeing a bike which I assumed had been dumped at the entrance to the Country Park.

I looked at the bike and thought it might have been abandoned. There were bits missing from it.

I had no knowledge that it had been stolen and left it where I found it.”

6.	In the second statement, the Appellant said by way of clarification of his first statement:

“I JS will say:
I wish to clarify what I meant by ‘looked at the bike’. I looked it over which involved me touching it.
I did not know it was stolen and did not ride it.”
7.	The forensic report attached to the admissions described Exhibit VLP/1 as follows: 
“One wet swab from the exposed ignition wires exposed at front panel of scooter – next to right hand headlight (as viewed from on scooter).”

8.	The swab contained DNA which matched a sample taken from the Appellant (only ‘streamlined’ testing was undertaken).

Case Stated

9.	The Case Stated quoted and appended the Admissions and above documents and continued as follows:

“The evidence being agreed, no witnesses attended to give evidence.

3.	At the close of the Crown’s case, we heard a submission by the solicitor for the Appellant that there was no case for the Appellant to answer.

We were referred to the second limb of the test in the case of R v Galbraith 1981.

The Appellant submitted that the evidence of tampering presented by the Crown was too tenuous in character for the court to convict the Appellant.

The Respondent in reply, contended the evidence contained within the admissions provided a case to answer.

We concluded that the evidence was such that a jury properly directed could convict the Appellant, and there was therefore a case for him to answer.

4.	The appellant gave evidence that he saw the bike at the entrance to a country park at about midday. It looked abandoned. He touched the front part because he felt like touching it. He had never been to Southwark and did not know where Bloom Grove was.

Under cross examination he stated he did not know why he did not say in his initial prepared statement that he had touched the bike. It was covered his second prepared statements. He does not touch every abandoned vehicle. His intention was not to steal it, or get it started. It looked abandoned.

The Appellant in closing submissions contended the Crown had not presented any evidence that the Appellant was in Bloom Grove SE27 on 21st June 2016 and evidence of the presence of his DNA on the wire of the moped was not sufficient to convict him.

We were reminded of the burden and standard of proof required.

5.	We were of the opinion that the prosecution had made out a viable case. We listened to the Appellant’s evidence which did not persuade us that there was no intention to tamper with the moped. We were satisfied so that we were sure that the Appellant did tamper with moped. Accordingly we convicted the Appellant.”

10.	A contemporaneous note of the reasons stated by the Magistrates’ for their verdict at the time reads as follows (but no point is taken by counsel as to any difference with paragraph 5 of the Case Stated above):

“We have considered the matter and reached a judgment.
The prosecution had presented a viable case. We have carefully listened to the defendant’s evidence and he did not say anything to persuade us that he did not tamper with the moped.
We are therefore sure you are guilty.”
Question

11.	The Question for decision was formulated in the Case Stated as follows:

“Is this a correct application of the burden and standard of proof and are either of these reasons

i)	that the prosecution case was viable

ii)	that the defendant had not persuaded us that he had not tampered with the moped

singularly or in combination, enough to convict?”

Submissions

12.	Mr Williams submitted on behalf of the Appellant that the Magistrates effectively asked themselves two questions (c.f. i) and ii) above), neither of which, independently or taken together, applied the correct burden or standard of proof. As regards the first question, he submitted that the term “viable” used by the Magistrates was not a legal term known to the criminal law. As regards the second question, he submitted that the Magistrates had thereby effectively reversed the burden of proof.

13.	Mr Heptonstall submitted on behalf of the Respondent that the Magistrates had applied the right burden and standard of proof. As regards the first question, in describing the prosecution as “viable”, the Magistrates were merely stating that the Appellant had a case to answer. As regards the second question, it was open to the Magistrates to reject the Appellant’s evidence and to say so in straightforward terms, as appropriate for the Youth Court. He submitted that it was clear that the Magistrates applied the correct standard of proof because they went on to state in terms that they were “sure” as to the Appellant’s guilt.

Analysis

14.	The term “tampering” is not defined by the Road Traffic Act 1988. It bears its ordinary, everyday meaning. It clearly means something more than mere ‘touching’. The Oxford English Dictionary defines tampering as ‘interfering with something without authority or so as to cause damage’.

15.	The Appellant admitted before the Magistrates seeing the moped (which is sometimes referred to in the evidence as a ‘scooter’) at the entrance of a country part he frequented. He said it looked abandoned. He admitted touching the front part of the moped but denied his intention was to steal it or to try to get it started. He denied having ever being to Southwark or knowing where Bloom Grove was. As recorded in paragraph 4 of the Case Stated, the Appellant’s case in closing submissions was the Crown had not presented any evidence that the Appellant was a Bloom Grove on 21st June 2016 and the evidence of the presence of DNA on the wire of the moped was not sufficient to convict him.

16.	It is apparent that the Magistrates reached their decision to convict the Appellant in two stages. These can be expressed in neutral terms as follows: stage (a), the Magistrates were satisfied that the prosecution’s DNA case called for an answer; stage (b), however, the Magistrates were not satisfied with the Appellant’s explanation as to why his DNA was on the moped.

17.	The essential issue before us is whether, in reaching their decision, the Magistrates applied the correct burden and standard of proof.

Approach

18.	Justices are not obliged to state reasons in the form of a judgment or to give reasons in any elaborate form (per Lord Bingham CJ in Mckerry v. Teesdale and Wear Valley Justices [2001] EMLR 5 at [23], [2000] EWCA Crim 3553). Moreover, the Court should not engage in too technical a semantic exercise when considering reasons given by magistrates for their decisions (per Maddison J in Ukpabi v. CPS [2008] EWHC 952 (Admin) at [17]). But it is important not only that that the decision- making tribunal applies the correct test but that it is clearly seen to do so (per Bell J in Evans v. DPP [2001] EWHC 369 at [9]-[12]).

Criticisms

19.	In our view, there are three potential criticisms of the manner in which the Magistrates directed themselves as regards the burden and standard of proof.

“Viable”

20.	The first is in relation to the Magistrate’s use of the term “viable” when describing the prosecution case: “We are of the opinion that the prosecution has made out a viable case”. As stated above, Mr Williams objects on the grounds that that it is not legal term. This is true but it is important to read it in context. The Magistrates had earlier dealt with an application of no case to answer and concluded that the evidence was such that a jury properly directed could convict the Appellant and there was, therefore a case for him to answer (see paragraph 3 of the Case Stated). This was, no doubt, on the basis of the forensic evidence which showed the presence of the Appellant’s DNA on wires at the front of the moped (see above). In our view, the Magistrates were merely explaining that the prosecution was strong enough to call for an answer, i.e. was capable of founding a conviction without a satisfactory explanation from the Appellant. The fact that they did so using the colloquial term “viable” is, in our view, unobjectionable. It is clear what they meant.

Reversed burden of proof?

21.	Second, it is suggested that the Magistrates in effect reversed the burden of proof at the second stage of their analysis, by requiring a positive explanation from the Appellant as to the presence of his DNA on the moped. In our view, the Magistrates’ two-stage approach was, in principle, orthodox and unobjectionable. They were entitled to conclude in the first instance, following their dismissal of the half-time submission, that the strength of the prosecution’s forensic case was such that it called for an explanation from the Appellant; and therefore, a de facto evidentiary burden then fell upon the Appellant to put forward an explanation at the second stage. It is clear that the Magistrates were not persuaded by the Appellant’s evidence at this second stage and proceeded to convict.

22.	However, we are troubled by the manner in which the Magistrates expressed this second stage of their reasoning: “We listened to the Appellant’s evidence which did not persuade us that there was no intention to tamper with the moped” (see paragraph 5 of the Case Stated). This wording is unfortunate since it is suggestive of a somewhat heavier burden on the Appellant that a mere evidentiary burden to explain the presence of his DNA on the moped. If this criticism stood alone, it may not have been sufficient to vitiate the Magistrates’ decision. However, we turn to consider it in combination with the third criticism.

Standard of proof

23.	Third, it is submitted that in directing themselves as to whether they were satisfied as to the Appellant’s evidence as to the presence of his DNA on the moped, the Magistrates appear not to have asked themselves the crucial question whether the Appellant’s explanation was or might be true. It is axiomatic that a mere possibility that a defendant might not be guilty is sufficient to mean that a jury cannot be “sure” of guilt. Accordingly, a mere possibility that the Appellant’s explanation as to the presence of his DNA on the moped was true would, and should, have been sufficient for the Magistrates to return a verdict of not guilty. Unfortunately, the Magistrates make no mention of this basic tenet of the standard of proof in the reasons they gave for arriving at their verdict. It is, at best, unclear whether the Magistrates asked themselves the question whether the Appellant’s explanation was or might be true.

24.	This omission is fairly acknowledged by Mr Heptonstall on behalf of the Crown. He accepts that, referring to the version of the Magistrates’ reasoning in paragraph 5 of the Case Stated (see above), the Magistrates could have, but did not, expressly insert after the words “…there was” the additional words “...or may have been” when rejecting the Appellant’s account so that the sentence read: “We listened to the Appellant’s evidence which did not persuade us that there was [or may have been] no intention to tamper with the moped.”.

25.	Mr Heptonstall submits, nevertheless, that this omission was not material or significant for two reasons. First, because the Magistrates went on to state the overall standard of proof correctly, i.e. that they were “sure” of guilt, in the next passage: “We were satisfied so that we were sure that the Appellant did tamper with the moped. Accordingly we convicted the Appellant”. Second, because it must be remembered that the context was the Youth Court where there was a particular need for simplicity and brevity by Magistrates when explaining the reasons for verdict to young defendants.

(a)	‘Sure’ of guilt

26.	As regards Mr Heptonstall’s first point, reading the Magistrates’ reasons for their decision as a whole, one is left with a concern that they may have arrived at their ultimate decision of being “sure” of guilt by an incorrect route, i.e. having failed conscientiously to consider and then exclude the possibility that the Appellant’s explanation might be true before finding him guilty, or to direct themselves correctly in this regard.
27.	The explanation given to the defendant at the hearing itself comprised the following three sentences (see paragraph 9 above):

“The prosecution had presented a viable case.
We have carefully listened to the defendant’s evidence and he did not say anything to persuade us that he did not tamper with the moped.
We are therefore sure you are guilty.”

28.	The statement that the Magistrates were “sure” of guilt in the third sentence does not follow from, and cannot cure, the defective reasoning in the second sentence that precedes it. The omission from the Magistrates’ conclusion in the (second) sentence about the evidence of the defendant of the words “or may not have tampered” is not trivial; it gives the impression that there was not a proper application of the standard of proof.

29.	In our view, the following passage from the judgment in Evans v. DPP (supra at [9]) is apposite in the present case:

“In my view, the justices’ words of adjudication created, and would have created to an informed bystander acquainted with the relevant facts and hearing what the justices said, the impression that they had, or may well have, applied the wrong test…”.

30.	The unnecessary and late importation into the expanded reasoning in paragraph 5 of the Case Stated of an “intention to tamper” (see paragraph 8 above) reinforces our view that the approach to this case has lacked rigour.

(b)	Youth Court

31.	As regards Mr Heptonstall’s second point, simplicity and brevity of expression in the Youth Court should not be at the expense of clarity and legal accuracy. Indeed, there is all the more reason for the Courts to express themselves in the clearest possible terms when dealing with young and vulnerable defendants. The relative informality of the Youth Court should not lead to a less rigorous approach to the law, nor to a lesser standard of explanation for a finding of guilt than is required in an adult court.

Conclusion

32.	Whilst the Magistrates may in fact have applied the correct burden and standard of proof when reaching their decision, they nevertheless created the impression by their remarks in open court that they may not have applied the correct standard of proof (c.f. Ukpabi, supra at [17]). For this reason, in our judgment, the decision must be set aside.

33.	Accordingly, we would answer the question put forward in the Case Stated “No” and quash the Appellant’s conviction.