Ukpabi v Crown Prosecution Service

A criminal conviction may be quashed where the magistrates’ remarks in open court create the impression that they applied a standard of proof lower than the criminal standard. This may justify intervention even though the reviewing court cannot conclude that the magistrates in fact applied the wrong standard. The question is whether, viewed in context, the remarks conveyed that the tribunal was not sure of the defendant’s guilt when convicting. The court should avoid an excessively technical analysis of lay magistrates’ language, but must protect the appearance and reality of a fair trial under Article 6 of the European Convention on Human Rights.

The claimant appealed by case stated against his conviction at Highbury Corner Magistrates’ Court for two assaults on police constables in the execution of their duty, contrary to section 89 of the Police Act 1996.

The magistrates accepted the officers’ evidence and convicted the claimant. In explaining their decision, however, they said that they could not be sure what had happened after a struggle began, but found the officers’ evidence believable. The central issue was whether those remarks created the impression that the magistrates had convicted without being sure of guilt.

1. Appeal allowed. The convictions were quashed. The magistrates had stated in their case that they had no reason to believe they had actually applied the wrong burden or standard of proof, but their remarks nevertheless created the impression that they had done so.
2. The criminal standard required the magistrates to be sure of guilt before convicting. Applying the approach in Evans v Director of Public Prosecutions [2001] EWHC Admin 369, an appeal may succeed where remarks made in open court create an impression that a lower standard was applied. The appearance of compliance with Article 6 of the European Convention on Human Rights is material, even without a finding that the tribunal actually used the wrong standard.
3. The court reconstructed the magistrates’ meaning from the final case stated, counsel’s note and the clerk’s note. Their statements that they were not sure what happened after the struggle, coupled with the expression that they found the officers believable, related to the alleged violence and not merely to the earlier refusal to move away. In that context, the remarks conveyed that they were not sure of the assaults when convicting.
4. The court rejected an excessively technical semantic analysis, recognising that the magistrates were lay persons. The decision in McCubbin v Director of Public Prosecutions [2004] EWHC 2504 was distinguishable because it did not turn on remarks made in open court which caused comparable unease about the standard of proof.
5. The questions were answered by stating that there was no reason to believe that the magistrates had in fact applied the incorrect burden and standard, but that their remarks created the impression that they had not applied the correct standard. A costs order was made, including repayment of £200 paid before legal aid was granted, subject to the court’s power to make that order.

• High Court (Administrative Court): In [2008] EWHC 952 (Admin), the appeal by case stated was allowed and the convictions were quashed.
• Highbury Corner Magistrates’ Court: The claimant was convicted on 7 February 2007 of two assaults on police constables in the execution of their duty.