Director of Public Prosecutions v Jobling

On a case stated appeal, the High Court may intervene only where the magistrates’ decision is unsustainable in law on the facts found. A submission of no case to answer is governed by the Galbraith test: taking the evidence at its highest, could properly directed magistrates safely convict? Evidence must be assessed as a whole. Poor-quality identification evidence may require withdrawal of a case where it is unsupported, but circumstantial evidence and recognition evidence may together establish a prima facie case. Breaches of Code D affect the weight and reliability of identification evidence. They do not necessarily prevent a case from proceeding. The court must not determine whether the defendant would ultimately be convicted.

The Director of Public Prosecutions appealed by case stated against the decision of justices at Consett Magistrates’ Court on 6 August 2015. The justices upheld a submission of no case to answer and dismissed an allegation that the respondent had damaged eight vehicle tyres, contrary to sections 1(1) and 1(4) of the Criminal Damage Act 1971.

The prosecution relied on CCTV footage, circumstantial evidence and recognition evidence from two witnesses. The justices considered the footage incapable of identifying the offender and regarded the recognition evidence as unreliable, including because of breaches of Code D under the Police and Criminal Evidence Act 1984. The central issue was whether, on the facts found, the justices were entitled in law to uphold the submission.

1. Appeal allowed. The question was reformulated as whether, on the evidence and findings stated, the magistrates were entitled as a matter of law to uphold the submission of no case to answer. The answer was no. The case was remitted to the Magistrates’ Court for trial by a differently constituted bench.
2. The case stated procedure did not permit an appeal on fact. The High Court’s task was confined to deciding whether the magistrates’ conclusion was legally untenable. Whether the High Court would have reached the same conclusion was irrelevant.
3. The applicable test was that stated in Galbraith: taking the evidence at its highest, could properly advised magistrates safely convict? The question was whether there was sufficient evidence for the case to continue, not whether conviction was inevitable.
4. Under Turnbull, poor-quality identification evidence which is otherwise unsupported may justify withdrawal of a case. Video identification also engages the safeguards in Code D, including separate viewing, contemporaneous records and an audit trail. Those safeguards guard against contamination and collusion and are not matters of undue formalism.
5. Viewed in context, the CCTV footage provided substantial circumstantial evidence. It showed the respondent near the relevant location, the offender emerging from and returning towards the hedge adjoining his house, matching clothing features, and no other person in the quiet street during the relevant period. The footage was capable of enabling recognition by someone familiar with the respondent.
6. The recognition evidence was weakened by the Code D breaches, including the absence of an audit trail and the risk of contamination. Nevertheless, the evidence taken as a whole meant that a properly directed bench could safely convict on one view. The magistrates erred by potentially conflating the no-case decision with the final assessment of guilt and by considering individual items of evidence in isolation.
7. The court expressed no view on the eventual outcome. At trial, the differently constituted bench would have to assess the effect of the Code D breaches and the force of the suggested pool of two suspects when deciding whether it was sure of guilt.
8. Costs were summarily assessed at £1,140 in favour of the appellant, not to be enforced without leave of the court. An order for detailed assessment was also made in respect of the legally aided respondent’s costs.

• High Court (Administrative Court): appeal by case stated allowed. The decision of the justices at Consett Magistrates’ Court was held not to be tenable in law, and the case was remitted for trial by a differently constituted bench.