Gonzales v Folkestone Magistrates Court

A conviction must be quashed where, following a material error of law, the appellate court cannot be sure that the defendant would have been convicted had the correct evidential course been followed. The assessment must address each realistic option available to the defendant, including whether to give evidence. A mixed statement containing admissions and exculpatory material should be adduced by the prosecution where it is relevant to the issues. Quashing the conviction does not necessarily require discharge of a restraining order. Such an order may remain in force where the alleged conduct is proved on the balance of probabilities, although it was not proved beyond reasonable doubt.

The appellant was convicted by Folkestone Magistrates' Court of assaulting his former partner. Before the magistrates, the prosecution failed to adduce a police interview in which the appellant admitted physical contact but raised self-defence and accident. The defence could not adduce the interview because it was a mixed statement containing self-serving material.

The prosecution accepted before the Divisional Court that the interview should have been adduced. The issues were whether the conviction was nevertheless safe, whether a retrial was required, and whether the restraining order should survive the quashing of the conviction.

1. Conviction quashed. The prosecution accepted that the interview should have been adduced as part of its case. The appellant had been deprived of two realistic choices: not to give evidence while relying on the interview, or to give evidence with the interview available as an early and potentially consistent account.
2. The court could not be sure that the magistrates would have convicted had the correct course been followed. Although conviction might have remained likely, particularly if the appellant did not give evidence, it was entirely possible that the magistrates would have seriously considered the immediate account supporting self-defence and accident. The conviction was therefore unsafe.
3. No retrial was ordered. The custodial sentence had been served, and the court considered that the relevant public interest question concerned the protection of the complainant. The existing restraining order provided that protection.
4. The conviction was quashed and the magistrates' order was set aside, except so far as it imposed the restraining order. The order was expressly maintained in force. Following R v Major, the court confirmed that a restraining order may be maintained after acquittal or quashing where the conduct is established on the balance of probabilities, even though it was not proved beyond reasonable doubt. On the appellant's own interview, that threshold was met.

• High Court (Administrative Court): Allowed the appeal against conviction. The magistrates' order was set aside except for the restraining order, which remained in force.
• Folkestone Magistrates' Court: Convicted the appellant of assault and imposed a custodial sentence, a suspended sentence activation and a two-year restraining order.