Neutral Citation Number: [2017] EWHC 3118 (Admin)
Case No: CO/5769/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 5 December 2017

Before:

Lord Justice Lindblom
and
Mr Justice Edis
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Between:

	R. (on the application of Teresa Skelton)	Claimant	
	
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	Winchester Crown Court	Defendant	
	
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	Crown Prosecution Service	Interested Party	
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Mr Matthew Farmer (by direct access) for the Claimant
Mr Michael Bisgrove (instructed by the Crown Prosecution Service Appeals and Review Unit) for the Interested Party
The Defendant did not appear and was not represented

Hearing date 15 November 2017
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Judgment Approved by the court for handing down (subject to editorial corrections)

Lord Justice Lindblom: 

Introduction 

1.	In determining this claim for judicial review we must consider whether the Crown Court could properly refuse to state a case for the opinion of this court, having convicted a defendant, on her appeal from the magistrates’ court, of an offence of common assault, her main grievance being that the Crown Court should have dealt with a defence of lawful self-defence and failed to do so, thus rendering her conviction unsafe.

2.	The claimant, Teresa Skelton, was convicted of common assault by District Judge Gillibrand, sitting in the Aldershot Magistrates’ Court on 29 April 2016. She appealed against that conviction to the Crown Court. Her appeal was heard by H.H.J. Cutler C.B.E. and two magistrates, sitting in the Crown Court at Winchester on 3 and 4 October 2016. The Crown Court dismissed the appeal. On 24 October 2016 Ms Skelton made an application to the Crown Court to state a case. That application was refused on 25 October 2016. On 7 November 2016 the Crown Court provided a statement of reasons, explaining why it had proceeded on the appeal as it did and why it now refused to state a case. On 8 November 2016 Ms Skelton’s claim for judicial review was filed with the court, challenging the Crown Court’s refusal to state a case. 

3.	The incident to which the claim relates occurred on 22 January 2016, at Ashburton Hall in the offices of Hampshire County Council in Winchester. On that day the Hampshire Police and Crime Commission Panel was meeting in the hall. Ms Skelton attended the meeting, despite, it seems, having previously been told by the county council that she should not do so, because it was feared that she might disrupt the meeting. The prosecution’s evidence at trial and on appeal, which Ms Skelton contested, was that she had tried to disrupt the meeting, and that, when asked to leave the hall, she had refused to do so. A Police Community Support Officer, P.C.S.O. Laurence Day, arrived and escorted her from the hall with the help of a senior police officer who was attending the meeting, Olivia Pinkney, then the Deputy Chief Constable of Sussex, now the Chief Constable of Hampshire. The prosecution alleged that, once outside the hall, Ms Skelton had kicked P.C.S.O. Day in the shin. She firmly denied having done so. In its statement of reasons the Crown Court said that it preferred the prosecution’s evidence that Ms Skelton had kicked P.C.S.O. Day as had been alleged, that she had kicked P.C.S.O. Day in retaliation, that the question of whether lawful force had been used to remove the clamant from the hall did not arise, since the assault occurred after she had been removed, and that she had not raised any issue of lawful self-defence in her evidence.
 
4.	In the claim for judicial review it is contended, in effect, that in the circumstances it was incumbent on the Crown Court to determine whether P.C.S.O. Day was entitled to remove Ms Skelton from the hall by force, and that the court erred in failing to consider the defence of self-defence that is said to have arisen from the evidence before it, in particular from evidence given by prosecution witnesses. The remedy sought in the claim form is stated to be:

“An order that the Winchester Crown Court state a case for the consideration of the High Court as to whether [it] erred in refusing to consider the defence of self defence when it was plainly raised on the evidence in the case, and erred in failing to reach a decision as to the lawfulness of the forceful eviction on Teresa Skelton from a meeting at Winchester County Council Offices. … .”

5.	The application for permission to apply for judicial review was refused on 20 February 2017 by Nicol J.. The application was then renewed, and at a hearing on 5 May 2017 was granted by Ouseley J.. Although the reasons given by Nicol J. for his refusal of permission are before us, we do not have a transcript of the observations made by Ouseley J. when he granted the renewed application.

The issue in the claim

6.	The central issue in the claim is whether the questions submitted to the Crown Court in the application for it to state a case were frivolous, so that the Crown Court could lawfully refuse to state a case for the High Court.

Appeals by way of case stated 

7.	Section 28(1) of the Senior Courts Act 1981 provides that “[subject] to subsection (2) [which disapplies subsection (1) to judgments or other decisions of the Crown Court relating to trial on indictment], any order, judgment or other decision of the Crown Court may be questioned by any party to the proceedings, on the ground that it is wrong in law or is in excess of jurisdiction, by applying to the Crown Court to have a case stated by that court for the opinion of the High Court”. It is not open to an applicant to pursue a challenge on the grounds that a decision of the Crown Court is against the weight of the evidence.  

8.	The Crown Court may refuse to state a case if the application is frivolous. In R. v North West Suffolk (Mildenhall) Magistrates’ Court, ex parte Forest Heath District Council [1998] Env. L.R. 9 Lord Bingham C.J., with whom Millett and Potter L.JJ. agreed, said (at pp.16 and 17):

“I think it very unfortunate that the expression “frivolous” ever entered the lexicon of procedural jargon. To the man or woman in the street “frivolous” is suggestive of light-heartedness or a propensity to humour and these are not qualities associated with most appellants or prospective appellants. What the expression means in this context is, in my view, that the court considers the application to be futile, misconceived, hopeless or academic. That is not a conclusion to which justices to whom an application to state a case is made will often or lightly come. It is not a conclusion to which they can properly come simply because they consider their decision to be right or immune from challenge. Still less is it a conclusion to which they can properly come out of a desire to obstruct a challenge to their decision or out of misplaced amour propre. But there are cases in which justices can properly form an opinion that an application is frivolous. Where they do, it will be very helpful to indicate, however briefly, why they form that opinion. A blunt and unexplained refusal, as in this case, may well leave an applicant entirely uncertain as to why the justices regard an application futile, misconceived, hopeless or academic. Such uncertainty is liable to lead to unnecessary litigation and expenditure on costs.”

and (at pp.18 and 19), endorsing the decision of the Divisional Court in Bracegirdle v Oxley and Cobley [1947] K.B. 349:

“… It is obviously perverse and an error of law to make a finding of fact for which there is no evidential foundation. It is also perverse to say that black is white, which is essentially what the justices did in [Bracegirdle v Oxley and Cobley]. But it is not perverse, even if it may be mistaken, to prefer the evidence of A to that of B where they are in conflict. That gives rise, in the absence of special and unusual circumstances …, to no error of law challengeable by case stated in the High Court. It gives rise to an error of fact properly to be pursued in the Crown Court.”
	
9.	The applicant may challenge a decision of the Crown Court to refuse to state a case by making a claim for judicial review. When this is done, it is open to the court to quash the decision to refuse to state a case and proceed to a substantive hearing of the application for a case to be stated, using the affidavit evidence provided by the parties as the “case stated”. Adopting that procedure has the benefit of avoiding the delay involved in the Divisional Court having to wait for the case to be returned to the Crown Court (or the magistrates’ court) for a case to be stated before deciding whether a conviction should be quashed (see, for example, R. v Reigate Justices, ex parte Counsell (1984) 148 J.P. 193 and R. v Ealing Magistrates’ Court, ex parte Woodman [1994] Crim L.R. 372). In R. v Blackfriars Crown Court, ex parte Sunworld Ltd. [2000] 1 W.L.R. 2102, Simon Brown L.J., as he then was, said (at p.2106F-H) that “[if] the court below has already (a) given a reasoned judgment containing all the necessary findings of fact and/or (b) explained its refusal to state a case in terms which clearly raise the true point of law in issue, then the correct course would be for the single judge, assuming he thinks the point properly arguable, to grant permission for judicial review which directly challenges the order complained of, thereby avoiding the need for a case to be stated at all …”, and that “[this] court for its part will adopt whatever course involves the fewest additional steps and the least expense, delay and duplication of proceedings”.

10.	Permission to apply for judicial review having been granted in this case, it seemed to us that a pragmatic approach was sensible. We indicated this to counsel at the outset. They agreed. We then heard full argument, on the basis that if we were to find the Crown Court was in error in refusing to state a case, we would be in a position to address the questions it had been invited to pose for this court. 

The Crown Court’s decision 

11.	In the written submissions he presented in the Crown Court, Mr Matthew Farmer, for Ms Skelton, contended that P.C.S.O. Day “did not arrest, or purport to arrest Teresa Skelton”, that he was “therefore technically committing an assault, which entitled her to resist his actions”, that “[she] denies that she kicked him, but [it remains] an obvious possibility that she did make contact with him in her efforts to free herself from his grip” (paragraph 4), that “the seizing of Teresa Skelton was not in fact lawful”, that “[in] those circumstances she was entitled to resist”, and that “[the] kick, described as moderate but causing no injury, would in such circumstances plainly amount to self defence” (paragraph 7).

12.	In exchanges with the judge Mr Farmer said this (at p.47D-F of the transcript of proceedings on 4 October 2016):

“… If there was a kick it … could have been an accident and another possibility … if it is an unlawful arrest, which I submit it is, … then it would follow that any action [Ms Skelton] took in resisting would be self-defence, subject to the reasonability of it.”

The judge then asked Mr Farmer (at p.47F-G):
	
“That has not been raised here has it? Anyway.”

Mr Farmer replied (at p.47G):

“No, but it is an invisible defence. It has not [been] raised by Teresa Skelton directly because she said there was no kick.”

	and later (at p.50E-F);

“… [It] may not have been a kick and so I am now sliding away from the need for it to be self-defence as such because, if you are being moved, ejected and, therefore, you are scrambling, your foot might accidentally make contact, so it could be an accident in the course of what happened.”
	
13.	Giving the Crown Court’s decision on the appeal, the judge said (at p.52D-G): 

“…
So we approach it in this way. In dealing with the conviction we really start towards the end of the story rather than the beginning and we ask ourselves the first question, “Have the prosecution proved so that we are sure that there was a kick?” If they have, then the second point that we ask ourselves, “Have the prosecution proved so that we are sure that this was a deliberate kick or it was accidental?” The third matter is, if there was a kick, “Have the prosecution proved that this was an unlawful use of force?” It would be unlawful unless a justification had been raised and, if raised, it would be for the prosecution to prove that it was unlawful. So, for example, if an issue of self-defence has been raised or an issue [whereby] the force was used to resist an unlawful arrest, then it would be for the prosecution to prove that the force used was unlawful before there could be a conviction. In fact, the defence has not been raised, it is not an implicit matter for us to consider but, at the same time, that is an issue for us to look at.”

and (at p.53B-D):
	
“…
We also do not come to any conclusions as to whether there was a lawful basis for Miss Skelton to be frogmarched from the meeting. The [authority] that has been put before us, … [Fraser Wood v DPP [2008] EWHC 1056 (Admin)], is one that has been noted but [no one] here is purporting to exercise any power of arrest in excluding Miss Skelton from the meeting. The question here is whether the PCSO and Mrs Pinkney, who seemed to be acting on request from the Police Crime Commissioner, were using lawful or unlawful force in their individual private capacities.”

Having referred to salient features of the evidence, and having made it plain that it preferred the evidence of the prosecution witnesses – P.C.S.O. Day, D.C.C. Pinkney, Ms Karen Baker, a facilities officer employed by Hampshire County Council, and Mr Darren Zammit, a facilities management assistant employed by the county council – to that of the appellant, the court said finally (at p.55G to p.56A):

		     “…
So it is we come to the conclusion, on that evidence, that the prosecution have proved so that we are sure that there was a kick, that that was deliberate, that that was an unlawful use of force, there was no lawful justification for it. So we come to the conclusion that, whilst there was no evidence that she intended to cause significant harm or significant injury, nevertheless, this was an unlawful kick which should not have happened and so, therefore, we find the case proved and, therefore, we dismiss the appeal against conviction. … .”

The request for the Crown Court to state a case	

14.	The questions framed on behalf of Ms Skelton in the request for the Crown Court to state a case were as follows:

 “(i)     Where a Defendant kicks someone who is restraining her, and using physical force against her, is the defence of self defence unavailable if the Defendant in evidence denies using any force on the person restraining her?
(ii)    Is it open to the Court to conclude that self defence does not apply, notwithstanding the existence of Prosecution evidence that the Defendant was struggling against the person restraining her, and at one point she kicked them in the shin whilst being so restrained?
(iii)   Was it open to the court, in all the circumstances, to decline to determine the issue as to whether, or not, the restraint and force used against the Defendant was lawful?
(iv)   Can a Police Community Support Officer (PCSO) take hold of someone by force, if he believes them to be causing a disturbance in a meeting hall, without explaining his powers, and without making, or purporting to make, an arrest?”

Question (iv) was abandoned at the hearing.

The reasons given by the Crown Court for refusing to state a case

15.	The Crown Court’s reasons for refusing to state a case were these:

“…
(1)	The charge for which the appellant was convicted was that of common assault by beating of Lawrence Day on 21st January 2016. Contrary to Section 39 Criminal Justice Act 1988.

(2)	Mr Day was a PCSO who was called to a meeting held by the Police Crime Commissioner in the Ashburton Hall in the Winchester County Council Offices[.] Mr Day was asked to encourage the appellant to leave the hall where she was disrupting the meeting.

(3)	Mr Day escorted the appellant from the Hall and Mrs Olivia Pinkney an off duty policewoman, was present and assisted.

(4)	Outside the Hall the appellant then assaulted Mr Day by kicking him in the leg.

(5)	In her evidence to the Crown Court the appellant stated “I did not kick the PCSO. It could not have happened accidentally. My foot did not come into contact with him”.

(6)	The prosecution witnesses were Mr Day, Mrs Pinkney, Mr Darren [Zammit] (a security man) and Karen Baker. Each saw the assault. Statements were read from PC Barry Webber and PC Nick Clark who dealt with the appellant’s subsequent arrest.

(7)	The Court accepted and preferred the evidence from the prosecution witnesses. The Court concluded so that it was sure that on the facts there had been a kick by the appellant and that it constituted an unlawful assault.

(8)	The appellant did not raise any issue of self defence in her evidence.

(9)	Whilst there had been an issue raised about whether the PCSO could lawfully take hold of the appellant in order to escort her from the Hall, the evidence from the prosecution witnesses was to the effect that the kick happened outside the Hall after the appellant had been escorted out from the Hall. The question about whether lawful or unlawful force had been used in escorting the appellant from the Hall did not need to be decided.

(10)	The Court found on the facts that there had been a kick which had been done in retaliation and after she had been escorted from the Hall. The issue about whether this was in retaliation for unlawful or lawful force was only relevant to mitigation and sentence – which in the event was not subject to any appeal.

(11)	As the Crown Court appeal was decided on the facts of the matter and on the findings of the evidence properly within the sphere of the bench sitting, there is no basis for the Crown Court to state a case for the opinion of the High Court.”

Was the Crown Court’s refusal to state a case lawful?

16.	On behalf of Ms Skelton, Mr Farmer submitted that the force used against her, both in escorting her from the hall and outside it, was “unreasonable force”. The Crown Court’s finding that she had kicked P.C.S.O. Day in “retaliation” – as it had asserted in its statement of reasons, though not in the judgment it gave when determining her appeal – was not open to it on the evidence. But in any event, submitted Mr Farmer, it still had to confront the issue of self-defence, and if it rejected that defence it had to explain why. It had not done so, either in its judgment or in its statement of reasons. Mr Farmer submitted that self-defence had clearly been raised as a possible defence – explicitly in the submissions he had made, effectively by the prosecution’s own evidence, and, indirectly, by Ms Skelton in hers. It ought therefore to have been addressed by the court. Mr Farmer relied on the principles stated in paragraph 19-48 of Archbold (2018): “[before] the issue of self-defence is left to the jury, there must be evidence, whether from the prosecution or the defence, which, if accepted, could raise a prima facie case of self-defence”, and “if there is such evidence, the issue must be left to the jury, whether it is relied on by the defence or not: see DPP (Jamaica) v Bailey [1995] 1 Cr. App. R. 257 …”.  

17.	In this case, Mr Farmer submitted, there was strong evidence raising a prima facie defence of self-defence before the Crown Court. In her evidence Ms Skelton had complained that P.C.S.O. Day and D.C.C. Pinkney had had no authority to act as they did in taking hold of her and manhandling her out of the hall. She had struggled to get away from them, sustaining, as Mr Farmer described them, “significant injuries” to her left wrist and arm as she did so. If she had kicked out, she had done so just once, and only to make them let go of her while they were restraining her as they removed her from the hall – not after she had been ejected. She was firmly of the belief at the time that they had had no authority to use any force against her, and that she was being assaulted by them. Mr Farmer relied here on the series of propositions relating to the use of force in excluding people from public meetings set out by Turner J. in Laporte v The Commissioner of Police of the Metropolis [2014] EWHC 3574 (QB) (at paragraph 53). He pointed, in particular, to the third proposition – that “[the] power to exclude … will and must be exercised particularly sparingly and only in the absence of a reasonably viable alternative …”, and the sixth –  that “[if] the police are called upon to assist in the exercise of the common law power they are acting lawfully in the use of force so long as such force is necessary and not excessive”. 

18.	With the aid of a summary he had compiled of evidence given by the four prosecution witnesses, Mr Farmer submitted that their evidence also supported the conclusion that Ms Skelton, if she did kick P.C.S.O. Day, had done so only in defending herself, while she was still being held. None of them had been able to rule out this possibility. The Crown Court should have asked itself, but did not, whether the force used on Ms Skelton was unlawful: both at common law and having regard to section 3(1) of the Criminal Law Act 1967, which provides that “[a] person may use such force as is reasonable in the circumstances in the prevention of crime”, and section 76 of the Criminal Justice and Immigration Act 2008, which provides that, for the purposes of the common law defence of self-defence, “[the] question whether the degree of force used by [the defendant] was reasonable in the circumstances is to be decided by reference to the circumstances as [the defendant] believed them to be” (subsection (3)) and that if it is determined that he genuinely held a belief as to the existence of any circumstances, he is entitled to rely on that belief “whether or not … it was mistaken”, or, if it was mistaken, “the mistake was a reasonable one to have made” (subsection (4)(b)). Mr Farmer relied here on the discussion in paragraphs 19-42, 19-43 and 19-45 of Archbold (2018).

19.	For the Crown Prosecution Service, the interested party in these proceedings, Mr Michael Bisgrove submitted that there was no arguable question of law to be decided, and that the Crown Court was clearly right not to state a case. The four questions on which Ms Skelton’s request for a case to be stated were “frivolous” in the relevant sense – “futile, misconceived, hopeless or academic”. As it had explained very clearly in its statement of reasons, it had found as a fact that Ms Skelton had kicked P.C.S.O. Day in an act of retaliation, and had concluded that the force she had used was unlawful. The defence of lawful self-defence does not embrace acts of retaliation. Mr Bisgrove submitted that the lawfulness of the force used by P.C.S.O. Day and D.C.C. Pinkney when they ejected Ms Skelton from the hall was not an issue the Crown Court had to resolve. But what they had done was plainly lawful. It is lawful, for example, to use force to eject a trespasser from property where the force used is reasonable (see R. v Day [2015] EWCA Crim 1646). In his evidence P.C.S.O. Day said he had acted as he did because he was concerned that Ms Skelton might become more violent. D.C.C. Pinkney said in hers that she had feared for the safety of others. Ms Skelton had been told she must not attend the meeting, and had refused to leave when asked to do so.

20.	Ably presented as they were, I cannot accept Mr Farmer’s submissions. Mr Bisgrove’s were, in my view, correct. 

21.	I think Mr Bisgrove was clearly right to submit that the crucial finding of the Crown Court, which was ultimately decisive in the failure of Ms Skelton’s appeal, was that the force she used when she kicked P.C.S.O. Day was unlawful force, and that she used that unlawful force in retaliation for her removal from the hall. Ms Skelton’s only real complaint goes, I think, not to any issue of law, but to the findings of fact made by the Crown Court in coming to that conclusion. If this is right, the application to the Crown Court to state a case was, in my view, founded on a misconception. 

22.	It is true, as Mr Farmer pointed out, that the word “retaliation” does not appear in the extempore judgment given by the Crown Court when it decided the appeal. But that does not matter. The word does appear in paragraph 10 of the Crown Court’s statement of reasons for refusing to state a case, where the court explains that it “found on the facts that there had been a kick which had been done in retaliation and after [Ms Skelton] had been escorted from the Hall”. This amplifies what is said in paragraph 7 of the statement of reasons: that the court, having “accepted and preferred the evidence from the prosecution witnesses[,] … concluded so that it was sure that on the facts there had been a kick by [Ms Skelton] and that it constituted an unlawful assault”. And that is, in substance, the conclusion to which the Crown Court came in its extempore judgment when deciding Ms Skelton’s appeal. The court was entitled to explain in its statement of reasons what it had said in its extempore judgment, and there is, in my view, no inconsistency between the two. It is clear from both that the court’s ultimate conclusion (at p.55G of the transcript of proceedings on 4 October 2016) that there had been “an unlawful use of force, there was no lawful justification for it” was a conclusion founded squarely on its findings of fact, the clear effect of which, in the light of the evidence before the court, was that Ms Skelton had deliberately kicked P.C.S.O. Day in retaliation for her ejection from the hall. On any sensible view of the facts as found by the court, the concept of “retaliation” was essential to its conclusion that the use of force had been “unlawful” and without “lawful justification”.

23.	I cannot see how the Crown Court’s relevant self-directions can be faulted. In explaining the approach it proposed to take, it posed for itself three questions (on p.52D-G): first, whether the prosecution had made it sure that there had been a kick; secondly, if they had, whether they had made it sure that the kick was deliberate, and not accidental; and thirdly, if they had done that, whether they had also proved that this was “an unlawful use of force”. The court expanded on that third question by adding that the use of force would be unlawful “unless a justification had been raised” and if that were so, it would be “for the prosecution to prove that it was unlawful”. It clarified that self-direction explicitly by reference to the defence of self-defence: “if an issue of self-defence has been raised or an issue [whereby] the force was used to resist an unlawful arrest, then it would be for the prosecution to prove that the force used was unlawful before there could be a conviction”. 

24.	Those self-directions on the law are, I think, impeccable. They are not themselves the subject of any criticism in the appeal to this court, nor could they be. 

25.	In my view there need be no doubt about what the court meant when it said (at p.52G) that “[in] fact, the defence [of self-defence] has not been raised, it is not an implicit matter for us to consider but, at the same time, that is an issue for us to look at”. This was a true reflection both of Ms Skelton’s defence and of the somewhat broader case that had been presented to the Crown Court on her behalf. The defence of self-defence was not “implicit” or inherent or hidden in the defence she was putting forward. Her defence was based very firmly on her adamant assertion that she had not kicked P.C.S.O. Day at all, whether deliberately or accidentally – as she made perfectly clear in her evidence-in-chief, when she said that her foot “certainly didn’t” make contact with P.C.S.O. Day, and that it could not have happened “accidentally” (p.117E-F of the transcript of proceedings on 3 October 2016), and in cross-examination, when she said “No, I didn’t kick him.”. That defence was, of course, irreconcilable with the concept of her having kicked him in lawful self-defence. Indeed, it was directly contrary to that defence. This conflict was evident, I think, in the somewhat ambivalent submissions, or observations, made by Mr Farmer in the exchanges with the judge to which I have referred. When the court said that the defence of self-defence, though not “an implicit matter” in Ms Skelton’s defence, was nevertheless “an issue for us to look at”, it was, as I understand it, simply acknowledging that “self-defence” had been put forward by her counsel, in those exchanges with the judge and in his submissions, as a matter that would, or might, fall to be considered if it were to find that she had kicked P.C.S.O. Day – together with the further possibility of “accident”, which had also been raised by counsel. 

26.	It seems to me clear, therefore, that the court proceeded to consider all the evidence it had heard, and to make its findings of fact and draw conclusions in the light of that evidence, with the concept of a defence of self-defence well in mind. It had not simply dismissed that potential defence out of hand. On the contrary, it was conscious that, notwithstanding Ms Skelton’s denial of the alleged kick, if it were to find itself sure that she had kicked P.C.S.O. Day, there was still the possibility that she had been lawfully defending herself when she did, and if so, there would be a lawful justification for her having done so. I do not accept that one can read its judgment as betraying a misapprehension of the principles emphasized by Lord Slynn of Hadley giving the judgment of the Privy Council in DPP (Jamaica) v Bailey, on which Mr Farmer sought to rely. Lord Slynn referred (at p.260) to the decision of the Court of Appeal in R. v Bonnick (1978) 66 Cr. App. R. 266, in which Stephenson L.J., giving the judgment of the court, said (at p.269):

“When is evidence sufficient to raise an issue of, for example, self-defence, fit to be left to a jury? The question is one for the trial judge to answer by applying common sense to the evidence in the particular case. We do not think it right to go further in this case than to state our view that self-defence should be left to the jury when there is evidence sufficiently strong to raise a prima facie case of self-defence if it is accepted. To invite the jury to consider self-defence upon evidence which does not reach this standard would be to invite speculation. … .”

Lord Slynn went on to say (ibid.):

“It is clear that perfectly hopeless defences which have no factual basis of support do not have to be left to the jury. But it is no less clear … that if the accused’s account of what happened includes matters which if accepted could raise a prima facie case of self-defence this should be left to the jury even if the accused has not formally relied upon self-defence.” 

27.	I reject the suggestion that in the present case the Crown Court lost sight of those principles. It very obviously did not. It reached its conclusion that Ms Skelton’s use of force was “unlawful”, and that there was “no lawful justification” for that use of force, having considered all the evidence before it, both the evidence for the prosecution and that for the defence. And in doing so it did not impose upon itself the false constraint of considering only the matters positively raised by Ms Skelton in her defence and ignoring other possible defences, including self-defence, that might properly be available to her on the evidence.

28.	Mr Farmer’s submission that the Crown Court fell into error in failing to resolve the question of whether the force used against Ms Skelton was lawful is, I believe, mistaken. As Mr Bisgrove submitted, the Crown Court had only to decide the questions necessary to establish whether the offence had been committed or not. I think it was right to say, as it did in paragraph 9 of its statement of reasons, “the question about whether lawful or unlawful force had been used in escorting [Ms Skelton] from the Hall did not need to be considered”. As it directed itself, it had to decide whether Ms Skelton had deliberately used force on P.C.S.O. Day, and, if she had, whether her use of that force was lawful. Preferring the evidence of the prosecution witnesses where it went to those issues, it found itself sure that when Ms Skelton kicked P.C.S.O. Day she did so deliberately, not in self-defence but in retaliation for having been escorted from the hall. In the circumstances, whether her ejection from the hall was unlawful, whether she genuinely believed it to be so, and whether that belief, if she held it, was mistaken, were not questions that impinged on those decisive findings. They were not questions that needed to be addressed in determining whether she was guilty of the offence with which she was charged. 

29.	I should add, though it does not affect the basic analysis here, that section 76(4) of the 2008 Act applies to mistakes as to circumstances, not mistakes as to the law. Logically, it was only if the court had found that she was acting in self-defence that it would have had to decide whether she was acting in lawful self-defence because the force she had used in defending herself was “reasonable force” (as to which, see the observations of Lord Widgery C.J. giving the judgment of the Court of Appeal in R. v Fennell [1971] 1 Q.B. 428, at p.431E-G). Only in those circumstances would the court have had to consider whether the force to which she had been reacting was unjustified because what was done to her was done without lawful authority. Otherwise, as here, the question simply did not arise. 

30.	The Crown Court recognized that. As it said in paragraph 10 of its statement of reasons, “[the] issue about whether this was in retaliation for unlawful or lawful force was only relevant to mitigation and sentence …”. Put simply: if the court was satisfied on the evidence it had heard, as plainly it was, that Ms Skelton could not in any event avail herself of a defence of self-defence, there was no need for it to ask itself whether the force used in removing her from the hall was lawful or not. It did not have to grapple with a dispute as to whether P.C.S.O. Day and D.C.C. Pinkney had lawful authority to escort Ms Skelton from the hall, or with a dispute as to whether she genuinely believed they did not, or with a dispute as to whether that was a mistaken belief or a reasonable one in the circumstances. These were not questions that lay on the path towards its conclusion as to Ms Skelton’s guilt. It was entitled and right to say, as it did (at p.53B-D) that it “[did] not come to any conclusions as to whether there was a lawful basis for [Ms Skelton] to be frogmarched from the meeting”, to conclude that the decision of the Divisional Court in Fraser Wood v DPP was not relevant, because “[no one had been] purporting to exercise any power of arrest in excluding [Ms Skelton] from the meeting”, and to make clear that this was how it dealt with “[the] question … whether [P.C.S.O. Day and D.C.C. Pinkney] … were using lawful or unlawful force in their individual private capacities”. Turner J.’s judgment in Laporte was not cited to the Crown Court. But, as Mr Bisgrove submitted, the propositions referred to there could not have made any difference to the Crown Court’s conclusions in this case. 

31.	The questions the court had set up for itself in its self-directions as to the law were answered in corresponding findings at the end of its judgment (at p.55G-H). The court found, so that it was sure: first, that “there was a kick”; second, that the kick was “deliberate”; and third, that “that was an unlawful use of force, there was no lawful justification for it”. These were all, by their nature, findings of fact. The finding that there was “no lawful justification” for Ms Skelton’s violence can only sensibly be understood, in the particular circumstances here, as embracing a finding that, when she deliberately kicked P.C.S.O. Day, she was not acting in lawful self-defence. The only other possible conclusion, in view of the evidence the court had heard, and a conclusion that in the circumstances hardly needed to be spelt out, was that Ms Skelton had kicked P.C.S.O. Day in retaliation for her ejection from the hall. At least on the facts here, if not always, the concept of retaliation and the concept of lawful self-defence are, necessarily, mutually exclusive concepts. They reflect the principle underscored by the Court of Appeal in R. v Bird [1985] 2 All E.R. 513 when considering the general scope of the defence of lawful self-defence, albeit on facts somewhat different from those of the present case, that, as Lord Lane C.J. said in giving the judgment of the court (at p.516e-f), “[if] the defendant is proved to have been attacking or retaliating or revenging himself, then he was not truly acting in self-defence”. So it is clear, in my view, that the court did not fail to deal with the possibility of a defence of self-defence. It took into account the fact that self-defence had been raised on behalf of Ms Skelton as a potential defence, but found as a fact, in the light of all the evidence, that such a defence was simply not a realistic possibility. In effect, it found that the defence of self-defence did not arise, either on the evidence whose truth it accepted, or on any version of the facts that had been put before it. And in my view it was clearly entitled to do so.

32.	The Crown Court’s findings of fact, including the finding that there was “no lawful justification” for Ms Skelton’s kick, and thus, in effect, that she had not acted in lawful self-defence but in retaliation for having been removed from the hall by P.C.S.O. Day and D.C.C. Pinkney, were amply supported by evidence the court had heard. There was, in fact, a good deal of evidence on which the court could quite properly find that Ms Skelton kicked P.C.S.O. Day, and that when she did so she was not merely trying to make him let go of her after he and D.C.C. Pinkney had brought her out of the hall. It is not necessary to recite at length, or appropriate to quote selectively, passages of evidence from the transcript of a hearing that lasted two days. I shall mention merely a few, which show that the Crown Court’s findings of fact were securely grounded in the testimony of the four eyewitnesses called by the prosecution – as to the circumstances in which Ms Skelton kicked P.C.S.O. Day, the kick itself, and her aggression. I should add that it was not for those witnesses to express their own views, if they had any, about her motive or intention at the time.

33.	D.C.C. Pinkney, in her evidence-in-chief, when asked whether she could give the court an idea of the force behind the kick she said she had seen said “[it] was a very deliberate kick, certainly; I can’t remember … whether it was her left or her right leg, but she certainly drew it back, and kicked very deliberately and very hard, into his shin” and “… I saw him physically recoil” (p.9C-D of the transcript of proceedings on 3 October 2016). In cross-examination, she confirmed that account, and added that “… [Ms Skelton] wasn’t wrestling herself out of a grip that hard, she was moving a little, but not that significantly, and it was a very deliberate kick” (p.19G-H). Ms Baker, in her evidence-in-chief, said “… [Ms Skelton] was flailing around with her arms, and she was kicking out specifically at the police officer [sic], towards him, and I did see that she did kick him at one point, and I saw his reaction to that, in that, obviously, he bent to rub his leg” (p.30E-F). In her cross-examination, Ms Baker accepted that, when there was “contact [with P.C.S.O. Day’s] leg”, she “[could not] say whether that was with intent to hurt him, or just to keep him away from her” (p.37D-E). Mr Zammit said in his evidence-in-chief that, outside the hall, Ms Skelton “kicked [P.C.S.O. Day] at least once in the leg” (p.41H). When asked about the “apparent force behind that kick”, he said “… it was enough for the [P.C.S.O.] to … wince, … and shout [“Ouch”]” (p.42A-B). P.C.S.O. Day said in his evidence-in-chief that “[the] moment we walked out, … she swung around and kicked me in my left knee” (p.57H), and went on to say “… it was a moderate kick; I did … feel the impact [straight away]; … it was sore … for an hour or so afterwards, … but … it was not a kick that caused me any lasting damage” (p.58A-C). This was evidence on which the Crown Court could properly rely in finding as a fact, as it did, that Ms Skelton had kicked P.C.S.O. Day not in self-defence, but in retaliation for her ejection from the hall.

34.	It follows, in my view, that the questions now raised on behalf of Ms Skelton do not properly fall within the High Court’s jurisdiction to entertain an appeal by way of case stated, and that the Crown Court’s refusal to state a case was not inappropriate or unlawful. As Mr Bisgrove submitted, and as is clearly explained in the Crown Court’s statement of reasons, the four questions originally presented to it, though framed as if they were questions of law, are all, in truth, questions that go to its findings of fact. In that sense they are all, within the formulation of Lord Bingham C.J. in Mildenhall Magistrates’ Court, “misconceived”. Questions (i) and (ii) are effectively one and the same question, which both, in substance, seek to go behind the Crown Court’s relevant findings of fact, and are therefore both “misconceived” and “academic” or “futile”. Questions (iii) and (iv) are also, it seems to me “academic” or “futile”, as well as “misconceived”, because they are not questions that properly arise in this case.

If the questions had been properly raised, how should they have been answered?

35.	If I were wrong to conclude that the questions on which the Crown Court was asked to state a case transgress the limits of this court’s case stated jurisdiction, my answers to them, in the light of the full argument we have heard, would have been these.

36.	Question (i) does not arise here, because the Crown Court did not conclude, as a matter of law, that the defence of lawful self-defence was unavailable “[where] a Defendant kicks someone who is restraining her, and using physical force against [him or] her, is the defence of self defence unavailable if the Defendant in evidence denies using any force on the person restraining [him or] her”. Rather, the Crown Court found as a fact that Ms Skelton had assaulted P.C.S.O. Day by kicking him, not in defending herself but in retaliation, and that this was “an unlawful use of force, there was no lawful justification for it”. That finding of fact was open to the Crown Court, and evinced no error of law. It involved no misdirection as to any legal principle bearing on the defence of lawful self-defence. 

37.	Question (ii) is the substantially the same question as question (i), and the answer to it, therefore, is substantially the same answer. The Crown Court did not conclude, as a matter of law, that “self-defence does not apply, notwithstanding the existence of [prosecution] evidence that the [defendant] was struggling against the person restraining [him or] her, and at one point she kicked them in the shin whilst being restrained”. It found as a fact, in the light of all the evidence before it, including the evidence that Ms Skelton was struggling against P.C.S.O. Day as he and D.C.C. Pinkney escorted her from the hall, that she had kicked him not in lawful self-defence but unlawfully, in retaliation. In doing so, it made no error of law. 

38.	Question (iii), if it fell to be answered here, should, I think, be answered “Yes”. It was open to the Crown Court, in the circumstances, not to determine whether Ms Skelton was restrained lawfully. For the reasons I have given, however, once it had found that she had deliberately kicked P.C.S.O. Day and that she had not done so in self-defence, its decision as to her guilt did not depend on the lawfulness of the “restraint and force used against [her]”. That question did not arise in this case. 

39.	Question (iv), had it not been abandoned, would also have been unnecessary to answer in this case, for the same reasons. In the circumstances, the lawfulness of P.C.S.O. Day’s actions was not a question that affected the outcome of Ms Skelton’s appeal. Such questions, if they do arise, will always turn on the facts.  

Conclusion

40.	For the reasons I have given, the Crown Court was in my view entitled, and right, to refuse to state a case. I would therefore dismiss this claim for judicial review.

Mr Justice Edis

41.	I agree.