Lee Ryan v Crown Court at Isleworth

In a judicial review of a refusal to state a case, the claimant must identify a public-law error in the refusal itself. A new statutory argument not advanced before the court asked to state a case will not ordinarily assist unless it can affect that decision. A court may rely on inconsistencies between a defendant’s police interview and trial evidence when assessing credibility and reliability. That exercise is distinct from drawing an adverse inference from a failure to mention facts under section 34 of the Criminal Justice and Public Order Act 1994. Any assumed error concerning section 34 is immaterial where the decision rests independently on credibility and inconsistency. Academic statutory points should be decided only with caution and where a proper public-interest reason exists.

The claimant was convicted in the Magistrates’ Court of racially aggravated assault following an incident on an aircraft. The Crown Court dismissed his conviction appeal, relying in part on inconsistencies between his police interview and trial evidence, and refused to state a case on the ground that the application was frivolous.

Earlier permission applications failed on grounds challenging the finding of inconsistency. On renewal, permission was granted on a new ground concerning whether section 34 of the Criminal Justice and Public Order Act 1994 applied where the offences investigated differed from those later charged. That point had not been raised in the application to state a case. The central issues were whether the new ground could impugn the refusal and whether the statutory issue was academic.

1. Disposition and procedural scope. The claim was dismissed. The decision under challenge was the Crown Court’s refusal to state a case as frivolous. The claimant therefore had to identify a public-law error in that refusal. His original grounds tracked the application made to the Crown Court, and permission to pursue those grounds had been refused. The Crown Court was consequently entitled to regard the application as frivolous. The new section 34 point had not been raised before the Crown Court and was not clearly capable of impugning the refusal.
2. Section 34 was not engaged. The case concerned materially different accounts, rather than silence at interview followed by a new account at trial. The claimant admitted in interview that he had grabbed the complainant’s wrists, but denied doing so in evidence. The Crown Court was entitled to rely on that inconsistency when assessing reliability and credibility. That did not require application of section 34 of the Criminal Justice and Public Order Act 1994. The language used by the Crown Court resembled a conventional section 34 direction, but it was also open to the court to infer that the changed account had been devised later. The decision in R v Gilbert (1977) 66 Cr App R illustrated the former common-law rule against adverse inferences from silence; section 34 abrogated that rule, but did not prevent reliance on inconsistencies.
3. Materiality. Even assuming that the Crown Court had relied additionally on section 34 and that section 34 was unavailable on the proposed construction, the error would not have been material. The overarching decision rested on accepting a sober, consistent and compelling witness and rejecting the claimant’s inconsistent account. The passing references to interview omissions concerning racial aggravation were not separately challenged and were expressly immaterial to the result.
4. Academic issue. The proposed statutory-construction point was academic because it could not affect the claimant’s conviction. The discretion to determine an academic dispute had to be exercised cautiously. Applying the principle in R v Secretary of State for the Home Department ex parte Salem [1999] UKHL 8; [1999] 1 AC 450, the court found no sufficient public-interest reason to decide the point. Its resolution would likely require close attention to the particular facts, and there was no evidence that it was likely to arise in a number of cases.
5. Order. The Crown Court had been right to decline to state a case. The claim was dismissed, and the claimant was to be sentenced by the Crown Court.

• Magistrates’ Court. The claimant was convicted of racially aggravated assault and threatening a member of aircraft crew.
• Crown Court at Isleworth. The appeal against conviction for racially aggravated assault was dismissed. The Crown Court later refused to state a case for the opinion of the High Court, treating the application as frivolous.
• High Court (Administrative Court). Murray J refused permission on the original grounds. On renewal, Morris J refused those grounds but granted permission on a new ground concerning section 34 of the Criminal Justice and Public Order Act 1994. The Divisional Court dismissed the judicial-review claim.