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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 >> B v Director of Public Prosecutions [2010] EWHC 1301 (Admin) (13 May 2010) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2010/1301.html Cite as: [2010] EWHC 1301 (Admin)

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

		Royal Courts of Justice Strand London WC2A 2LL
		13 May 2010

1. MR JUSTICE KEITH: On 15 December 2009, the appellant was convicted by District Judge House at Poole Youth Court of having, on 10 June 2009, intentionally killed a deer contrary to section 1(2)(a) of the Deer Act 1991. He had pleaded not guilty. He had been 17 years old on the date of the offence, and was still 17 on the date of his conviction. He suffers from Asperger's syndrome. He now appeals against his conviction by way of case stated. Since he has now attained the age of 18, the reporting restrictions contained in section 49 of the Children and Young Persons Act 1993 no longer apply to him (see T v Director of Public Prosecutions [2003] EWHC 2408 Admin). The only issue which the appeal raises is whether the district judge should have ruled that the appellant did not have a case to answer.
2. The evidence on which the prosecution relied to prove the appellant's guilt was that three youths were seen by a member of the public in a field on the Upton House Estate. One of them was swinging a fawn. Another then struck the fawn in the face or the head, and it was dropped hard onto the ground. Then all three youths stamped on it. They were smiling and laughing, and appeared to be egging each other on.
3. As a result of information received, the police had reason to believe that the appellant had been one of the three youths. They went to his home on 15 June -- the case stated wrongly said 13 June -- and retrieved some of his clothing and footwear. While there they heard that he was at the home of another youth who the police had reason to believe had also been involved in the attack on the fawn. The police went there and arrested the appellant and the other youth, telling them that they were being arrested for killing a fawn at Upton House Estate on 10 June. The appellant was taken outside, and a little later one of the officers told him that she had removed clothing and footwear from his home, to which the appellant responded:

"My trainers are in my garage, the ones I wore on the day. Mum will show you, you can have them".

4. That officer took the appellant to his home. His mother took the police officer to a garage at the back of the house. It was densely packed and almost inaccessible, but having climbed over several items she saw at the back of the garage, on the ground under some old furniture, a small package wrapped up tightly in bin liners. The package contained a pair of trainers, and when the appellant was shown them he said "yes, that's them". He was later interviewed about the offence under caution, but the district judge ruled that what he had said in the course of the interview was inadmissible and I therefore say no more about it.
5. There was no direct evidence which suggested that the appellant was one of the three youths who had been seen to kill the fawn. Such descriptions as had been given of the youths and of what they were wearing were not sufficient to identify them, and no identification procedure was ever carried out following the appellant's arrest. Nor was there any forensic evidence linking him to what had happened. The only evidence which suggested that the appellant had been one of the three youths were his comments to the police and where his trainers were found.
6. The district judge acknowledged that the evidence against the appellant was "sparse" and "quite limited", and he therefore thought that the second limb of Galbraith [1981] 1 WLR 1039 at p 1042B-D had been engaged, namely that there was some evidence of the appellant's guilt but that it was of a tenuous character. He nevertheless concluded that

"... there were a number of points of evidence which I had to regard and I felt that I might possibly be able to convict and I needed to hear an answer to the anxieties and questions in my mind concerning those limited pieces of evidence."

That was the district judge's way of saying, using the words of Galbraith, that there was evidence upon which he could properly come to the conclusion that the appellant was guilty. The question which was posed for the High Court to consider was:

"Was I wrong in law in determining that there was a case to answer based upon the evidence before me in respect of the appellant at the end of the prosecution case?"

7. For my part, I have concluded that there was indeed evidence upon which the district judge could properly come to the conclusion that the appellant was guilty. When the appellant told the police where the trainers which he had been wearing on "the day" were, he was obviously referring to the day on which he had been told the fawn had been killed. One possibility was that he was simply referring to the trainers which he had been wearing on 10 June, but I think it would have been open to the district judge to infer that the appellant was referring to the trainers which he had been wearing at the time of the offence, because the appellant did not say that he knew nothing about the attack on the fawn, or that he had not been involved in it, which is what he had been told 20 minutes or so earlier had been the reason for his arrest. Moreover, the circumstances in which the trainers were found suggested that they had been hidden. I think that it would have been open to the district judge to infer that they had been hidden by the appellant (since he knew where they were), that he must have had some reason for hiding them, and that the only reason for him to have hidden them was because he was concerned that they might have incriminated him in something which he had done on the day when he had admitted wearing them, namely 10 June. When those strands of the evidence are put together, it would, I think, have been open to the district judge to conclude that he could properly come to the conclusion that the appellant had indeed been one of the three youths involved in the attack on the fawn.
8. I should add that there was evidence before the district judge that, when the package containing the appellant's trainers which had been found in the garage was unwrapped, there appeared to be a reddish tinge to the area around the trainers' laces and edging. However, there was no evidence about the nature of the terrain where the fawn was killed, nor any evidence that the reddish tinge could have been blood, and so the state of the trainers did not take the prosecution's case further. In any event, the state of the trainers was not referred to in the case stated, and would have to have been ignored for that reason anyway.
9. However, since I have concluded that the district judge could properly have come to the conclusion that the appellant was guilty on the evidence which was referred to in the case stated, it follows that the answer I would give to the question posed by the district judge is no, and I would dismiss this appeal.

10. LORD JUSTICE ELIAS: Notwithstanding the attractive and succinct submissions of Mr Gibney, I agree.