Bussetti, R (On the Application Of) v Director of Public Prosecutions

An appeal by way of Case Stated is confined to the facts set out in the stated case and is not a de novo factual appeal. The High Court may remit a Case Stated for amendment where it lacks material findings, evidence summaries, party contentions or documents needed for a fair determination of the legal questions. The case must remain succinct and directed to the crucial issues. Where the appeal turns on the identity, similarity or content of video evidence, the relevant footage may need to be appended, because context and full content can be material to the validity of the decision under challenge. Remission for that purpose equips the appellate court to decide the stated questions; it does not convert the appeal into a fresh factual hearing.

Following a Grenfell Tower effigy-burning incident, Paul Bussetti was acquitted by the Westminster Magistrates’ Court of sending a grossly offensive message contrary to section 127(1) of the Communications Act 2003. The DPP appealed by way of Case Stated under section 111 of the Magistrates’ Court Act 1980.

The DPP sought amendments to add relevant evidence, the respondent’s admissions and interview, the respondent’s evidence, the parties’ contentions, the YouTube video and clarification of an alleged error concerning the number of videos. The central issue was whether the Case Stated contained sufficient material for the High Court fairly to determine whether the Chief Magistrate had erred in law.

1. The Case Stated was remitted for amendment. The court directed that the case be sent back so that the Chief Magistrate could address the six proposed categories of amendment. The substantive merits of the appeal were not determined.
2. An appeal by way of Case Stated under section 111 of the Magistrates’ Court Act 1980 is not a de novo factual appeal. The question is whether the decision was wrong in law or in excess of jurisdiction. The High Court is confined to the facts stated and must not go behind the Case Stated. The parties cannot rely at the appeal hearing on material absent from it.
3. A Case Stated must be sufficiently complete to permit a fair resolution of the issues. It should include the relevant findings of fact, the evidence supporting a factual conclusion where sufficiency of evidence is in issue, and the relevant contentions of the parties, as required by CPR 35.3. Material documents should be appended where necessary.
4. The amendments concerning the evidence, admissions and interview summary were required because they formed the basis of the DPP’s challenge and were necessary for the appellate court to understand the Chief Magistrate’s conclusion that the respondent’s video might not have been the same as, or materially similar to, the YouTube video.
5. The YouTube video should also be appended. In a Case Stated appeal involving films, context and full content may be important to the validity of the decision under scrutiny. The court relied on the approach in DPP v Smith [2017] EWHC 359 (Admin), where video footage was required to enable the appellate court to understand the evidential context.
6. The remission was procedural. It was intended to provide the court hearing the substantive appeal with the necessary material, while preserving the limited nature of a Case Stated appeal.

• Westminster Magistrates’ Court: Senior District Judge Emma Arbuthnot acquitted the respondent on 22 August 2019.
• High Court (Administrative Court): The DPP’s Case Stated appeal was not determined on its merits. The Case Stated was remitted for amendment under section 28(a) of the Senior Courts Act 1981.