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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 >> Russell, R (on the application of) v Director of Public Prosecutions [2006] EWHC 3054 (Admin) (16 October 2006) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2006/3054.html Cite as: [2006] EWHC 3054 (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: This appeal is by way of Case Stated from the decision of the St Albans Justices dated 16 January 2006. The appellant did not appear for his trial. He was convicted in his absence of criminal damage. The allegation was that on 24 October 2004 he damaged six windows on a Fiat Punto motor car, contrary to Section 1 (1) and Section 1 (4) of the Criminal Damage Act 1971.
2. The essential issue in this appeal can be put very shortly: was there sufficient evidence for the justices safely to convict this appellant? It may be put even more simply as Mr Harris, on behalf of the appellant, accepted: was there a case at half time against the appellant?
3. The justices set out the case in the following terms:

"Nicola Dudman stated that she was the owner of a Fiat Punto Index N915 BWJ. On Saturday 23 October 2004 she had gone to Batchwood Nightclub with her boyfriend and his friend. Whilst at the nightclub a fight broke out between Nicola Dudman's boyfriend, his friend and another [unknown] male."

In the original case the justices wrongly stated not an "unknown male" but "another male, Mark Russell"; in other words, the appellant. That is not the only error in the Case Stated.

4. I return to the Case:

"A The men were subsequently ejected from the nightclub. Miss Dudman stated that the men agreed to carry this on outside a restaurant in London Road, St Albans. Nicola Dudman's boyfriend and his friend left in a blue Escort and Nicola Dudman followed in her Fiat Punto. Five minutes after they had arrived at the restaurant the male arrived and soon after a white car turned up with more of his friends. They ran towards Miss Dudman's boyfriend and his friend and one of them pulled out what looked like a machete. Miss Dudman's boyfriend and his friend ran off. Miss Dudman stated that she got into her car and as she tried to reverse the car it stalled. Miss Dudman stated that she became aware of someone behind the car, that same person then smashed all the car windows with a metal object. All the windows came in save for the front window which shattered but didn't fall in. Miss Dudman stated that during this time she shielded herself from the breaking glass by hiding under her denim jacket. Miss Dudman gave evidence that as she looked up from under her jacket the male leaned in through the passenger window and said 'Your boyfriend is lucky he ran away.' Miss Dudman stated that this person was the same person who had had a fight with her boyfriend in the nightclub. Miss Dudman was unable to say in which direction the man went. Shortly after this the police arrived. As Miss Dudman was speaking to them the white car that she had seen earlier passed them, she pointed this out to the police who then pursued the vehicle. Miss Dudman gave a description of the male as being 6 ft tall, with one-inch mousey brown hair, wearing dark trousers, black shirt with white stripes and wearing a three-quarter length dark navy blue or black jacket. She said he was in his early 20s not older than 25. Miss Dudman confirmed that she had not taken part in any identification parade.

B PC Clifford stated that on 24 October 2004 he was on duty when he received reports of a fight in the vicinity of London Road, St Albans. On arrival he spoke to a distressed female. PC Clifford then went to Alma Road, St Albans and saw PC Lodge trying to restrain Mark Russell on the floor ..... PC Clifford described Mark Russell as a white male, approximately 25 years of age, athletic build. The jacket he was wearing was seized. PC Clifford stated that there was a blood on the jacket and that Mr Russell had an injury to his finger which required several stitches."

5. Another officer called Police Constable Lodge gave evidence. He spoke of the appellant running away and of being aggressive towards him. Police Constable Clifford spoke of a lot of fresh blood on the door, window and seat of the white car.
6. The justices summarised PC Bigmore's evidence in these terms:

"E ..... PC Bigmore stated that there were other passengers in the car and as she spoke to the driver she noticed one of the passengers seated behind the driver get out of the vehicle and run away towards Beaconsfield."

That was the appellant.

7. The appellant, the justices recite, blamed his injuries upon the police. I am told that in interview he said they arose when he was being dragged by a police officer or officers along the ground. The justices state that the hammer was recovered. It was not recovered either from the appellant or the white car.
8. There was of course no evidence from the appellant. He was represented. It was submitted to the justices that Miss Dudman had stated that the person who caused the damage went off but she did not know where, that she could not state if the person who caused the damage was in the white car, that there was no evidence that the person who ran away from the car was the same person who had caused the damage. It was contended that the appellant may have sustained his injury during a fight. The absence of scientific evidence was emphasised. There was nothing, it was submitted, to indicate glass on the appellant's jacket. I assume, too, it was submitted that there was no identification procedure.
9. The justices expressed their opinion in these terms:

"6 We were of the opinion that -

A Mark Russell, the defendant, caused the criminal damage to Miss Dudman's car.

B Mark Russell was found very near to the incident. Miss Dudman pointed out a white car to the police which she believed the defendant may have got into."

That part which recites "which she believed the defendant may have got into" is incorrect; that was not the evidence as is accepted. That is the second error in the case. I return to their reasoning:

"The same car was stopped a short distance away and as the police spoke to the driver of the vehicle, Mark Russell, a passenger seated at the rear of the vehicle jumped out and ran away. We accept the evidence of the police officers that the male refused to stop and that he was very abusive and aggressive.

C Mark Russell had a significant cut to his finger. We accept the evidence of the police officers who described the cut as a fresh injury which was bleeding heavily. We accept the police officers' evidence that there was blood inside the white car. We do not accept the defendant's account given in interview that the injury to his hand was caused by the police officers on arrest or the contention given on his behalf during closing submissions that the injury may have been caused in a fight. We are satisfied that the defendant sustained injury to his hand before jumping out of the white car. We find that this injury was consistent with one caused by broken glass and not as described by the appellant in interview.

D Miss Dudman's description of the man who smashed her car windows matched the description of Mark Russell, the male arrested by the police. In particular we note from the interview that the clothing worn by the defendant and described by PC Cotte in interview is significantly similar to the clothing described by Miss Dudman.

.....

J After looking at Mark Russell's jacket, produced to us as exhibit number MC1, we are of the opinion that it had blood stains on it. We are also of the opinion that the jacket appeared to have tiny fragments of glass on it, however, as we did not have the benefit of any forensic evidence we attached no weight to this.

K We do not accept the manner described in interview by Mark Russell as to how he received an injury to his hand. Further we find that he made no comment to any questions relating to the offence and that no inference was drawn given the appellant's absence at his trial meant that he did not rely on anything that he had failed to mention in the course of that interview.

I Given all the evidence we have heard, particularly the description, we are satisfied that Mark Russell committed the offence of criminal damage."

10. The question posed is -

"Whether the evidence justified the finding that the appellant was guilty of the offence of criminal damage alleged to have been committed on 24 October .... ?"

11. Mr Harris makes a number of submissions. First he emphasises the errors in the case. Second it was erroneous, he submits, for the justices to find that the injury to the finger was caused by broken glass in the absence of medical or expert evidence to support it. Third the description of the appellant had, he concedes, some similarities both as to appearance and clothing. He submits that the description was sufficiently general as to match a considerable percentage of people. In the absence of an identification procedure it is evidence of limited worth. Fourth he submits that the justices may have inadvertently given weight to the fragments of glass they suggest were found in the jacket. In short, as it is put in the final paragraph of the skeleton argument:

"The totality of relevant, reliable and admissible evidence against the appellant is the description provided of his approximate age ..... his height ..... and clothing that was not exceptional. In all the circumstances it is submitted that such evidence is insufficient to satisfy the burden of proof to the criminal standard in respect of the alleged offence."

12. Although plainly the errors to which I have referred should not have been made in the Stated Case, it seems to me that there was clear evidence which entitled the justices to find that there was a case to answer and entitled the justices to be sure that the appellant was the person who broke the windows of the Fiat Punto. I need only point out a number of aspects of that evidence. There was a connection between the white car and the incident. The appellant was in the white car. The appellant had sustained recent injury to his fingers. It was open to the justices to reject the account he gave as to their cause. It was open to them to conclude that the cause was the breaking of the windows of the Fiat Punto. The description, appearance and clothing, as between the culprit and the appellant was clear. They were similar. In my view, more weight could be attached to the similarity than Mr Harris submits. The moment the police approached the white car the appellant fled.
13. Putting those various features together, it seems to me plain that the justices were entitled to come to the conclusion that they did, both at half time and necessarily at the close of the case. There was, in short, sufficient evidence to show that the appellant was the man referred to by Nicola Dudman.
14. I would therefore answer the question posed in the affirmative.
15. I add this: of course wholly immaterial to my decision is the slightly surprising situation that the appellant chose to come to this court and state the case as opposed to appealing to the Crown Court. He could of course at the Crown Court have given evidence and the matter would have been considered entirely afresh. No doubt for reasons best known to himself he decided on this course instead.
16. MR FIELD: There is one point which is this. The applicant was admitted to bail pending the outcome of this hearing. Would this court make an order that he surrender himself to the Central Hertfordshire Magistrates' Court, say, within 48 hours?
17. MR HARRIS: I thought the general rule was 10 days. I do not think he needs to surrender - - - - -
18. MR JUSTICE GOLDRING: It was a custodial sentence.
19. MR HARRIS: I think it was three months.
20. MR FIELD: Three months, yes.
21. MR HARRIS: He had started to serve that - - - - -
22. MR FIELD: I think he was admitted to bail quite promptly.
23. MR JUSTICE GOLDRING: I think he should surrender the sooner the better. Mr Harris, I will give him three clear days from today. I order that he surrender to the Central Hertfordshire Magistrates' Court. I assume it is known where he is.
24. MR HARRIS: He has been in contact with those who instruct me, and I think he knows where the court is.
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