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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 >> W v Director of Public Prosecutions [2006] EWHC 1211 (Admin) (10 May 2006) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2006/1211.html Cite as: [2006] EWHC 1211 (Admin)

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

		Royal Courts of Justice Strand London WC2
		10th May 2006

1. MR JUSTICE OPENSHAW: The appellant is now aged 16. I shall call him "W". We make an order under section 39 of the Children and Young Persons Act 1933 that no report of the case should name him nor give any particulars by which he might be identified.
2. W appeals against the decision of Alnwick Youth Court on 8th August last year, by which he was convicted of criminal damage to a window contrary to section 1(1) of the Criminal Damage Act 1971, and of breaching an Anti-Social Behaviour Order made by that court on 14th February last by engaging on the same occasion in conduct causing harassment, alarm and distress, that being an offence contrary to section 1(10) of the Crime and Disorder Act 1998.
3. The facts are very straightforward. I take them from the case stated. VJ Food Store in Amble, Northumberland, is owned and managed by Mr Singh. Mr Singh knew W well. He had barred W from his shop as a result of his behaviour in the past, as W well knew. On Sunday 13th March last year, when W was just 15, he tried to enter Mr Singh's shop but Mr Singh would not let him in. As a result of which, W loitered outside the shop with other youths. Someone threw a stone and this gained Mr Singh's attention. He then saw the appellant throw a stone which broke one of the shop windows. As a result, Mr Singh felt nervous and angry.
4. At the hearing the prosecution called Mr Singh to speak of these matters. Now the prosecution asserted that W was subject to an Anti-Social Behaviour Order which had been imposed by the same court the month before, on 14th February. However, most unfortunately and regrettably, the prosecution did not prove the making of the ASBO, which they could easily have done by producing a copy of the court register. They called no evidence to establish that such an order had been made and they called no evidence to establish that the person against whom such an order had been made was the defendant, W. They made no attempt to seek an admission of these matters from the defence. It was, therefore, not surprising that at the close of the prosecution case there was a submission that there was no case to answer upon the charge of breaching the ASBO.
5. The prosecution claim that they had been misled by a pre-trial review at which they claimed that the defence had indicated that the issues to be taken were "factual", whatever that means. In fact, the defence had a file note suggesting that the imposition of the ASBO on W was not admitted. In the circumstances of this case, it is not suggested that a formal admission of fact could be constructed from this informal and imprecisely recorded pre-trial indication of the issues. If the prosecution had adduced the court register in evidence, and if the court register had showed that a person with the same full name as W, with the same date of birth, residing at the same address, had been the subject of an ASBO only a few weeks before, then no doubt the court may readily have been able to conclude as a matter of fact that an ASBO in those terms had been made and, furthermore, that it was made against W in the terms set out. But this was not done. It may possibly even have been appropriate for the prosecution to have applied to re-open their case, but they did not do this either.
6. The Magistrates' legal advisor made an examination of his own, and suggested to the Magistrates that the matters set out in the ASBO made on 14th February were, as he put it, "a matter of record" and that they could come to these conclusions as a result. The Magistrates appear to have taken the view that the defence were being unhelpful in not identifying this issue in advance. It is axiomatic that in every case the prosecution must prove the allegations which it makes, either by formal admission or otherwise. Here, the prosecution simply did not do this.
7. On the facts of this case, the prosecution had not proved that an ASBO had been made. They called no evidence of the terms in which it had been made. They called no evidence that it had been made against W. I had been prepared to embark upon a detailed examination of the authorities, but today we learned that the prosecution have conceded that it is unable to attempt to uphold the conviction on the charge of breaching the terms of the Anti-Social Behaviour Order. They take the view -- in my judgment, correctly -- that what happened is precisely covered by the case of R (on the application of Kingsnorth and Denny v Director of Public Prosecutions [2003] EWHC Admin 786.
8. We turn, therefore, to the questions asked:

(1) Must the prosecuting authority prove formally that an Anti-Social Behaviour Order has been made in respect of the persons before the court? To which the answer, in my judgment, is "Yes".

(2) If the answer to question (1) is yes, whether the Anti-Social Behaviour Order requires proof by evidence showing --

(i) that an Anti-Social Behaviour Order was made.

(ii) that the person named in the order is the same as the person brought before the court.

Again, the answer to both parts of that question is "Yes".

(3) Whether, on the evidence before the court, the Justices could properly conclude that the defendant was prohibited from engaging in the conduct complained of. The answer, in my judgment, is "No".

9. That really is the end of the issues in the case; or, more accurately, the determination of all the issues raised in the case stated. However, Mr Broomfield, on behalf of the appellant, did seek, in settling the draft case stated, to raise a further issue which the Magistrates did not pose as a question in the case stated. We think, perhaps, that out of a desire properly to investigate all these matters we should deal with that point which is as follows.
10. Mr Broomfield argued that the Magistrates, having heard that the prosecution were asserting that an ASBO had been made against W, should have declined to adjudicate further on the matter of the criminal damage prosecution. The Magistrates heard evidence from Mr Singh and from W. They gave a reasoned judgment which was not in any way predicated upon knowledge that an ASBO had been made against W. There was abundant, even overwhelming, evidence to justify the Justices' finding that W threw the stone which broke the window. In the circumstances, there is, in my judgment, no merit in this point whatsoever. Even if a question had been posed addressed to the safeness of the conviction for criminal damage, I would unhesitatingly have answered it to the effect that that conviction was safe.
11. It follows that the conviction for breaching the ASBO will be quashed but the conviction for breaking the window will be upheld. The penalty of a supervision order for one year was passed upon both matters and accordingly will survive in relation to the criminal damage conviction.
12. LORD JUSTICE SCOTT BAKER: I agree.
13. MR BROOMFIELD: My Lord, for the sake of the record, when that penalty was imposed the appellant, I think, was in fact before the court for other matters in any event, which is why I make no application in relation to sentence.
14. My Lord, in the circumstances, the appellant has the benefit of a public funding certificate. Can I ask your Lordships for detailed assessment?
15. LORD JUSTICE SCOTT BAKER: Yes.
16. MR JUSTICE OPENSHAW: Thank you very much.