Director Of Public Prosecutions v Berry

An immediate trial at a defendant’s first appearance is not appropriate where the plea reveals a disputed factual issue requiring a proper prosecution response, particularly where the prosecutor lacks statutory authority to conduct a trial. Active case management and expedition cannot override statutory rights of audience or procedural fairness. At the close of the prosecution case, the court must give the prosecutor a proper opportunity to make representations before considering a submission of no case to answer. A circumstantial case may satisfy the second limb of Galbraith where, taking the prosecution evidence at its highest, a properly directed tribunal might properly convict.

This was a prosecution appeal by way of case stated from a Youth Court decision. The District Judge moved directly from the defendant’s first appearance to a trial on the papers, despite the defendant disputing responsibility for breaking a window and despite the associate prosecutor lacking statutory authority to conduct a trial. The Judge then upheld a submission of no case to answer without hearing prosecution representations.

The questions were whether the Judge could proceed to an immediate trial and whether the evidence justified accepting the submission of no case to answer.

1. Appeal allowed. The case was remitted to a differently constituted Magistrates’ Court for proceedings to be conducted according to law.
2. The statutory scheme did not permit the associate prosecutor to conduct the trial. Under section 7A(2)(a)(ii) of the Prosecution of Offenders Act 1985, the designated employee’s rights of audience did not extend to trials of an offence punishable with imprisonment for an offender aged 21 or over. The offence charged fell within that exclusion.
3. The Judge was entitled to pursue effective case management, but expedition could not justify an immediate trial where the issue was factual identification: who had broken the window. This was not merely a question of the defendant’s state of mind. The guidance in Director of Public Prosecutions v Radziwilowicz and Wanas recognised that fairness to all parties remained the governing consideration and that immediate disposal might be inappropriate in such circumstances.
4. Criminal Procedure Rules Part 24.3(3)(d) required the court, before acquitting on the ground that the prosecution evidence was insufficient, to give the prosecutor an opportunity to make representations. That opportunity was not provided. The prosecutor necessarily became directly engaged in the trial once the submission of no case was made, but lacked authority to conduct it or respond to the submission.
5. The evidence, viewed at its highest, was capable of amounting to a circumstantial case. Relevant circumstances included the defendant’s presence at the property, the sound of breaking glass immediately after the warning that police had been called, his entry into the house, the broken window, and his later discovery in the room containing it. A properly qualified prosecutor could have argued that the second limb of R v Galbraith was satisfied, or might have been satisfied.
6. It was therefore no answer that the submission would necessarily have succeeded even if the prosecution had been heard.

• High Court (Administrative Court): allowed the prosecution appeal by way of case stated and remitted the case to a differently constituted Magistrates’ Court.
• Leeds Youth Court: found no case to answer on the charge of criminal damage.