CO/10584/2011 
Neutral Citation Number: [2012] EWHC 606 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Tuesday, 31 January 2012
 
B e f o r e:

LORD JUSTICE MOSES 

MR JUSTICE IRWIN

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Between: 
KENNY HUGHES 
Appellant

v 

DIRECTOR OF PUBLIC PROSECUTIONS 
Respondent 
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Computer‑Aided Transcript of the Stenograph Notes of  
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Mr Richard Storey (instructed by Lawtons Solicitors) appeared on behalf of the Appellant
Mr Benedict Leonard (instructed by CPS) appeared on behalf of the Respondent
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J U D G M E N T
1.	MR JUSTICE MOSES:  This is an appeal against the decision of the District Judge for the Luton and South Bedfordshire Local Justice Area on 18 July 2011.  The judge asks whether he was correct in finding the appellant guilty of an offence contrary so section 4 of the Public Order Act 1986 for using threatening and abusive behaviour with intent to cause his victim to believe that immediate unlawful violence would be used against him.
2.	The judge concluded that the appellant did intend to cause a Mr Peck to believe that unlawful violence would be used against him arising out of the events in the early hours of 4 December 2010.
3.	The facts are no credit to this appellant.  He was clearly guilty of unprovoked and unlawful serious violence against the victim, Mr Peck.  He, as the District Judge found, approached Mr Peck from his right‑hand side and, it is important to note, slightly to his rear.  He struck him a violent blow with his fist to the side of the head.  It appears that Mr Peck was immediately knocked unconscious because, as found by the District Judge, he fell to the ground and did not move.  The District Judge specifically found that the appellant had approached Mr Peck and "threw the punch in such a way that it would land before Mr Peck perceived the blow, or so soon after he perceived the threat as to prevent him from reacting to defend himself".  
4.	The judge further found that there was no evidence that Mr Peck was aware of the blow before it struck.  He further found that the appellant intended to punch Mr Peck to the head, and intended to strike the blow before Mr Peck could defend himself.  He then continued: 
"If Mr Peck saw the blow before it landed, the appellant intended that Mr Peck believe that unlawful violence would be used against him, as indeed it was." 
5.	He concluded that he was sure that the appellant had both the intention to punch Mr Peck to the head and the intention to cause him to believe that unlawful violence would be used against him.  He repeated that he was satisfied that the appellant had those two continuing concurrent intentions, as he put it, which were not mutually exclusive.
6.	The question for this court is as to whether there was evidence on the basis of which the judge was entitled to infer that the appellant intended to cause Mr Peck to believe that unlawful violence would be used against him.  We should make clear that that was the basis upon which the appellant was charged under section 4(1) of the Public Order Act 1986, and there was no case made against him on the basis not of his intention, but rather that it was likely that such unlawful violence would have been provoked, that it is a separate and distinct basis which was not pursued in this case.
7.	It is important, as Mr Leonard stresses in his helpful written and oral submissions, to acknowledge that there is no requirement on the prosecution to prove that the victim did in fact believe that he would be visited with unlawful violence (see Swanston v DPP [1997] 161 JP 203 WL, following early authority).  But, in this case, the question for this court is whether there was any evidence at all that the appellant intended his victim to believe anything, let alone that he would suffer unlawful violence.  This was, as the judge specifically found, a sneaky and unprovoked attack: the appellant approached the victim from behind.  As soon as the appellant got close enough, he delivered the blow in such a way as to avoid any advance warning.  
8.	In my view, there was no evidence whatever from which it could be inferred that the appellant intended to cause Mr Peck to believe that unlawful violence would be used against him.  Mr Leonard suggests that there was a possibility that the victim might have noticed what was about to happen to him before the blow was delivered, in which case the actions of the appellant were such that it could be inferred that he might have intended to cause him to believe that he was about to be hit.  That is, in my view, a wholly unacceptable and highly strained basis upon which to view the facts.  The reality is that the intention of this appellant was to hit the victim before he knew what was happening to him.  
9.	Why it was that the appellant was not charged with an assault, or even a more serious offence given the effect of striking this man unconscious with one blow, has never become apparent and could not be explained to us by counsel for the prosecution, Mr Leonard.  Where the prosecution have failed to charge the obvious offence, it is quite wrong to seek to strain a view of the facts so as by some unjustifiable Procrustean method to drag it within the embrace of an offence miles away from that simple charge of assault, which is what this appellant ought to have faced.  
10.	Mr Leonard does make the more realistic submission that there will often be cases of an assault where it can be inferred that the intention of the perpetrator of that assault will be to cause the victim to apprehend a second occasion of violence ‑ a second blow.  But there was absolutely no evidence of that in this case; certainly no evidence of that intention to be inferred from the sudden striking of one blow.  
11.	The reality of this case was that the prosecution charged the wrong offence, and that the District Judge understandably, but in my view mistakenly, sought to see that at least the perpetrator of this wholly uncalled for violence did suffer at least a conviction for some sort of offence.  It requires no words of mine to underline that that is not an acceptable approach.  If the prosecution charge the wrong offence, they had no business in seeking to pursue so unrealistic a course.  In my view, the appellant ought not to have been convicted of an offence under section 4(1) on the basis of intending the victim to believe that unlawful violence would be used against him, even if other aspects of that offence under section 4 might have been more appropriate.  
12.	There was no evidence on the basis of which the judge could conclude in the way he did, and I would allow the appeal. 
13.	MR JUSTICE IRWIN:  I agree.  I add only this: the implication of the argument advanced on behalf of the respondent was that an offence under section 4(1) of the Public Order Act 1986 could be charged in almost every assault case which arises.  I echo the words of my Lord, Moses LJ: it is highly desirable that offences should be properly charged, not charged on a strained or artificial basis.  This was, on any sensible view, an assault and it should have been prosecuted as such.  
14.	Prosecutors should not seek to confuse what should be readily understandable criminal proceedings by attaching the wrong label and then attempting to see that the label sticks.   
15.	MR JUSTICE MOSES:  What relief are you seeking; that we quash the conviction? 
16.	MR STOREY:  Indeed. 
17.	MR JUSTICE MOSES:  Anything else? 
18.	MR STOREY:  No, my Lord. 
19.	MR JUSTICE MOSES:  Thank you very much.