CO/437/2012 
Neutral Citation Number: [2013] EWHC 193 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Friday, 18 January 2013
 
B e f o r e: 

MR JUSTICE MITTING
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Between: 
DPP 
Claimant

v 

HOPKINS 
Defendant 
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Computer‑Aided Transcript of the Stenograph Notes of  
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Mr P Lodato (instructed by CPS) appeared on behalf of the Claimant
Mr E Hetherington (instructed by Berry Redmond Gordon & Penney) appeared on behalf of the Defendant
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Judgment
1.	MR JUSTICE MITTING:  This is a prosecutor's appeal by way of case stated against the decision of Bristol Justices to acquit the respondent of a charge of assault, contrary to section 29 of the Criminal Justice Act 1988.  
2.	I say at the outset that the appeal is an unusual one.  It is unusual because one does not expect to find a prosecutor appealing against an acquittal of a defendant in a simple assault case where there are only two witnesses to the assault, the victim and the alleged assailant, and the Justices have not been satisfied by the evidence of the complaint that the respondent assaulted her unlawfully.  
3.	Having begun with that observation it is, however, a perfectly proper appeal to have brought, for reasons which I will explain.  The respondent was charged that, on 12 November 2010, he had assaulted Ellis Blackmore in the 1‑bedroom flat which at that time they shared.  The respondent was bailed to taken Bristol Magistrates' Court.  He did so and entered a plea of not guilty.  But when the case was called on for trial, just under a year later, although he appeared by counsel, he did not appear in person.  Despite that, his counsel representative him to some effect because, at the conclusion of the prosecution case, there being no evidence called by or on behalf of the defendant, the magistrates were persuaded that the defendant should be acquitted.  
4.	The facts were commonplace and very straightforward.  He and Miss Blackmore occupied a single bedroom flat in a house.  There was a communal public area accessible by residents of the other flat and a communal hallway.  The complainant said that an argument between them developed when he wanted to go out, leaving her without one of the two keys necessary to gain access to the flat.  She said that the argument lasted 15 to 20 minutes.  At the end of it, he left by the front door.  The complainant followed him, asked him for the key, telling him that she needed it to do some shopping.  She said he then became aggressive, grabbed her throat with his right hand, and pushed her to the wall.  
5.	There was an issue about which wall that was, as I shall explain.  She said that she was held to the wall for about 3 minutes and, while so held, she saw the respondent's arm move and he struck her hard to the right eye, either with an elbow or a fist, she was unable to say which.  
6.	She complained to the police that day.  A careful statement was taken from her by a police officer.  The police officer gave evidence that it took several hours to obtain a statement from her.  Photographs of her face were also taken which showed an injury to her left, not right, eye.  
7.	The respondent was arrested and interviewed.  Although the interview record forms no part of the stated case, it is clear from the stated case that in interview he admitted that he had caused an injury to her eye by the use of force, but said that he did so in self‑defence.  It is not clear from the case what attack he said that she made upon him or threatened upon him.  
8.	Mr Lodato, who did not appear below but who appears for the prosecutor today, accepts that in those circumstances, even though the defendant was not there to give evidence to advance the account that he gave in interview, the issue of self‑defence was raised so that it was for the prosecutor to disprove it to the criminal standard.  That concession is correct.
9.	At the end of her examination‑in‑chief, when the complainant was asked to look at the photographs to establish the nature of the injury which she sustained, she corrected her evidence that she had been struck in the right eye and said, as the photograph showed, that she had been struck in the left eye.  The police officer gave concurring evidence.  
10.	She was cross‑examined about that inconsistency and about a further inconsistency.  In her evidence‑in‑chief, she said that she had been pushed into the wall of the hallway and, when asked by way of clarification whether she was saying it was the communal hallway or the hallway inside the flat, she said it was the hallway inside the flat.  There was therefore an inconsistency between the account that she had given in her witness statement about where the incident had occurred and the account that she gave in her evidence‑in‑chief, to which she stuck under cross‑examination.  
11.	There were, therefore, two inconsistencies.  One was plainly a mistake, given that it was common ground that force had been applied by the respondent to one of the complainant's eyes and had produced an injury to one of them; she was clearly simply mistaken about which eye had been hit.  
12.	Mr Lodato asserts that not only was that evidence plainly mistaken, but also the explanation for the difference of accounts between where the incident occurred must also have been the result of a mistake.  There is no warrant for that submission on the findings made by the Justices and it remains on those findings a possibility that the inconsistency was due to something other than mistake.  
13.	It was put to the complainant in the course of her evidence that she had sent a message via Facebook to the respondent's new partner, threatening her and telling her to stay away from him, facts which she admitted, but she denied the further proposition that she had made the allegations out of spite or revenge.  The prosecutor and defence counsel made unremarkable submissions as to what the Justices should find.  
14.	The legal adviser then gave advice which was, at the start, accurate as to the law, but the conclusion went well beyond the proper task of a clerk advising justices about the law.  He explained correctly that the only issue in the case was whether or not the prosecution had disproved self‑defence, but he went onto say that: 
"Unless Miss Blackmore had lied about which eye had been injured she must have made an honest mistake." 
And: 
"Which eye was injured and which wall Miss Blackmore was pushed to were minor points of remembrance compared to the fact that she was so pushed to a wall and struck to the eye.  Upon the key issues in the case Miss Black had remained clear consistent and was not contradicted by any other testimony".
Those were matters which the Justices might have reached by way of conclusion and it was for them and them alone to reach.  It was not a matter upon which the clerk should have tendered advice in those terms.
15.	Nevertheless, having identified the basic issue in the case accurately, the Justices were well equipped to make their decision on the case.  Their conclusion is set out in paragraph 6 of the stated case:
"We were of the opinion that: 
A.  It was extremely unlikely for a person to make a mistake about which of their eyes had been injured in such circumstances and this affected the weight of Miss Blackmore's evidence.
B.  The wall into which Miss Blackmore was pushed was an important feature of the case and her failure to be sufficiently clear on the issue was damaging to her evidence.
And, accordingly, whilst we felt it was unnecessary to comment upon Miss Blackmore's truthfulness, that the inconsistencies in her evidence meant that we could not be sure of what had happened." 
That is a reasonable paraphrase of a finding that they were not sure that the defence of self‑defence had been disproved by the prosecution to the criminal standard and I so read it.  
16.	Their conclusion that it was unlikely for a person to make a mistake about which of their eyes had been injured was curious and, had it stood alone, might have led to the soundness of the conclusion being open to question in this court.  But it was not the only conclusion that they reached.  They concluded that the wall into which Miss Blackmore was pushed was an important feature of the case and that her failure to be sufficiently clear on the issue was "damaging to her evidence".  
17.	A fundamental issue in the case was whether or not Miss Blackmore had told the truth.  Unless the Justices could be sure to the criminal standard that she had told the truth there was, in truth, nothing to disprove the defence of self‑defence.  If the justices had been sure that they had been told the truth by Miss Blackmore, then the inconsistencies in her evidence could not sensibly have led them to reject her basic account that it was she who had been attacked, and not she who was the assailant.
18.	There was no issue about who had applied force to her eye so as to cause injury to it.  It was, on any view, the respondent.  It would have been better for the Justices to say whether they believed or disbelieved Miss Blackmore or, indeed, as would have been open to them, whether they were not sure that she was telling them the truth.  What they in fact found was that it was unnecessary to comment upon her truthfulness.  That seems to me to carry with it a necessary implication that the Justices were not sure that they were being told the truth by her because, had they been, for the reasons I have explained, they could hardly have found that self‑defence had not been disproved.  
19.	The inconsistencies in her evidence against that finding of being unable to be sure, accordingly, were capable of playing a significant part in the Justices' conclusion as they said it did.  Once it is appreciated that the Justices had not found that they were sure that Miss Blackmore was telling them the truth, then the reasoning falls into satisfactory place.  
20.	I have subjected it, at the invitation of Mr Lodato, to minute examination.  It is probably not right to do that; the Justices are lay justices, they are there to determine whether they are sure that they have been told the truth on a simple issue of self‑defence or not.  Their conclusion was that they were not sure.  They could have expressed that conclusion in any one of a number of different ways which would not have been capable of being challenged on appeal by way of case stated.  On a proper and, regrettably, rather minute analysis of their reasoning, I am satisfied that it was open to them to reach the conclusions that they did.  
21.	Accordingly, and in response to the question posed by the case: 
"Whether a reasonable bench of magistrates properly directed would have concluded that they could not rely on the evidence of the complainant given the absence of any evidence from the respondent and an acceptance in interview that he was responsible for the injury inflicted." 
The answer is, yes, a reasonable bench of magistrates could reach that conclusion and the conclusion of this bench reached is not open to challenge on appeal.
22.	For those reasons, I dismiss this appeal.
23.	MR LODATO:  I am grateful, my Lord. 
24.	MR HETHERINGTON:  Thank you, my Lord.
25.	MR JUSTICE MITTING:  This jurisdiction always gives rise to a lot of little problems, usually presented with economy and skill, as both of you did.  Thank you.