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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> D, R (on the application of) v Director of Public Prosecutions [2006] EWHC 3017 (Admin) (16 October 2006) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2006/3017.html Cite as: [2006] EWHC 3017 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		16 October 2006

1. MR JUSTICE GOLDRING: In this appeal by way of case stated neither the magistrates nor the Crown Prosecution Service is represented. I have already granted the appellant an order permitting him to appear without a litigation friend. I have also granted an order that he remains anonymous.
2. On 2 March 2006 the appellant was convicted by the Sunderland Youth Court of an offence of criminal damage to a window valued at £30.33. The allegation was that he punched it through. He was given an absolute discharge.
3. The facts were set out by the justices in their Stated Case in the following way:

"1 We heard the said information on 2 March 2006 and after receiving evidence from two civilian witnesses, and a police officer and written evidence from a consultant child psychiatrist we found the following facts proved (the facts were not disputed):

a. On 22 August 2005 an altercation took [place] at 7 Mersey Court, Doxford Park, Sunderland, the address of the first witness, Mrs Margaret Storey, involving her partner Mr Mark Storey and the appellant, [AD].

b. Mr Mark Storey was the father of the prosecution witness, Ryan Storey.

c. The police were called during the incident but by the time they arrived the incident was over and the appellant [AD] left the scene.

d. Ryan Storey gave evidence -in -chief that he followed [AD] to 7 Mersey Court, where he had 'kicked off' and cracked the window. He stated that [AD] had not intended to smash the window and when asked by the prosecution why he believed this, he stated it was because [AD] had told him so. He confirmed to the prosecution that [AD] had said nothing else to him about this event. There was no cross -examination of Ryan Storey.

e. On being interviewed in the presence of his mother the police officer in the case, PC 3411 Jordan, the appellant [AD] admitted punching the window out.

f. Asked why, the appellant replied that he was sick of 'him [Mark Storey] pulling us around'.

g. When asked if it was done in a fit of temper the appellant replied 'Aye, but he shouldn't have been pulling me about.' There were no questions put to [AD] about his intention or recklessness in interview.

2 The prosecution opened the case on the basis that the defendant intended to break the window.

3 On behalf of the defendant it was submitted that there was no case to answer. We were referred to R v G UKHL 50 2003 ..... and in particular to the comments of Lord Bingham at paragraph 41. The appellant submitted that the prosecution could prove neither intent or recklessness on the evidence adduced by the Crown.

4 The appellant was not called to give evidence.

5 The statement agreed under Section 9 of the Criminal Justice Act 1967 from a consultant child psychiatrist, Dr Stanley, was tendered to the court by the defence.

6 Having considered the doctor's opinion we considered it did not provide a defence to the charge. At paragraph 5, he confirmed that the appellant 'does not always consider the consequences of his actions as carefully as he should especially when he is in a high state of arousal'.

7 This fell short of stating that the appellant was incapable of the foresight of risk as required by the ratio of the House of Lords in R v G.

8 In giving our reasons we stated that it is not agreed whether your actions were intentional or reckless. After assessing the evidence received we were satisfied beyond a reasonable doubt that the appellant had the necessary mens rea and had acted recklessly in punching and breaking the kitchen window. We have decided you were reckless having given particular consideration to paragraph 5 of Dr Stanley's statement where he confirms you do not always consider the consequences of your actions as carefully as you should especially when in a state of high arousal. Accordingly we find the case proved."

4. The question posed to this court is in these terms:

" ..... were we correct in finding proved beyond a reasonable doubt that he had formed the necessary levels of foresight and intent as required by the House of Lords in R v G ..... to justify conviction for criminal damage to a window?"

5. In his submissions on behalf of the appellant, Mr Barnes makes these points essentially. First, it is clear that the magistrates did not find that the prosecution had proved beyond reasonable doubt the appellant intended to cause damage. The issue is whether they were justified in finding that he was reckless and in doing so whether they applied the correct test. He submits, rightly, that the test requires foresight of damage. He submits that on the basis of Mr Storey's evidence, Mr Storey having stated that the defendant told him he did not intend to break the window, the actions of the appellant were consistent with the absence of either intention or recklessness. He submits that the justices, in convicting, must have decided the risk was so obvious that notwithstanding the lack of specific evidence of recklessness by way of admission or from eye -witnesses, and despite the evidence of Ryan Storey. He submits that Dr Stanley's evidence tells against such a conclusion.
6. Mr Barnes further submits that the reasons expressed by the justices leave open the possibility that they applied an objective and not a subjective test as they should have done. He submits that in the circumstances the justices were not entitled to come to the conclusion that the appellant was reckless.
7. It seems to me that this case needs to be looked at with a touch of common sense.
8. The appellant was seen to break the window. He admitted that he broke it. He admitted that he had done so in a fit of temper; that he had punched it out. That plainly, and in my view unarguably, left a case to answer albeit a submission to the contrary effect was made to the justices.
9. The appellant did not give evidence. It was not surprising that the justices found that in those circumstances he had at least foresight of some damage to the window. As they rightly say, the psychiatric report does not mean that he could not either intend the consequence of his actions or foresee them. There was nothing inconsistent in the magistrates' reasoning. It is clear that they knew they had to be sure that this appellant, on all the evidence before them, foresaw the possibility of damage to the window. Not surprisingly they concluded that he did.
10. In the circumstances I have come to the view that the answer to the question is yes, the justices were correct in finding proved beyond a reasonable doubt that he had formed the necessary levels of foresight and intent as required by the House of Lords in R v G.
11. This appeal is dismissed.
12. MR JUSTICE GOLDRING: Mr Barnes, what is the test to apply for legal aid on a Case Stated? Does somebody have to express the view that there is a reasonable prospect of success?
13. MR BARNES: A written application is made to a court which is dealt with partly judicially and partly administratively. There is an application on the merits and the application is granted; I think that is all I can say. This was some time back.
14. MR JUSTICE GOLDRING: By whom?
15. MR BARNES: By, I think, Mr Justice Collins.
16. MR JUSTICE GOLDRING: So it is an application to this court. This court grants legal aid.
17. MR BARNES: Yes. As opposed to judicial review which is a civil application to the Legal Services Commission, this is an application to the court for representation. That is the distinction.
18. MR JUSTICE GOLDRING: So the order that you seek from me is what?
19. MR BARNES: It is just an assessment of my costs in the normal way.
20. MR JUSTICE GOLDRING: Yes, you may have that.
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