Hurdower v Director of Public Prosecutions [2018] EWHC 3044 (Admin)

Dhenraj Hurdower v Director of Public Prosecutions [2018] EWHC 3044 (Admin) was an appeal by way of case stated from the Highbury Corner Magistrates’ Court heard by Lord Justice Holroyde and Mrs Justice Whipple, who dismissed the appeal against conviction for assault by beating contrary to section 39 of the Criminal Justice Act 1988.

Mr Hurdower was found guilty after trial on 30 November 2017 of assaulting his daughter by striking her on the back of the head. The prosecution case, advanced by the complainant Sheena Hurdower and her boyfriend Nebir Satti, was that the appellant struck the complainant to the back of her head using unlawful force following a confrontation outside the appellant’s property. The defence case, supported by eye witness Mohammed Faizal Sooka, was that the appellant placed his hand on the complainant’s neck in a protective manner to move her back towards the house. The sole issue was whether the admitted physical contact constituted unlawful force.

The justices found that the appellant did lay his hands on the complainant against her will and rejected the claim that the action was protective. In assessing the evidence, the justices used a numerical template or form divided into three columns headed Name of Witness, Assessment and Because. The second column linked to a footnote defining six assessment categories: 1 meaning clear and consistent, 2 meaning inconsistent, 3 meaning accepted notwithstanding inconsistencies, 4 meaning implausible, 5 meaning does not assist and 6 meaning not credible. The complainant’s evidence was assessed as 1, described as clear and consistent. Mr Satti’s evidence was assessed as 5, found to be over-exaggerated. The appellant’s evidence was assessed as 1, clear and consistent, but with the annotation that he downplayed his part. Mr Sooka’s evidence was assessed as 3, accepted but found not to have all stood up to cross-examination. The justices recorded that they were satisfied the appellant laid his hand on Sheena against her will, did not believe the action was protective, and that this therefore counted as unlawful contact.

The certified question asked whether, given the assessment of the appellant and the defence witness, it was open to the justices to convict. Ms Parker, appearing for the appellant, submitted that the form showed the defence case had been accepted and the justices could not have been satisfied to the criminal standard. She argued the numerical 1 accorded to the appellant indicated his evidence was credible, being the best finding available in the absence of any number correlating to a positive assessment of credibility. She contended it was illogical to treat the 1 given to the complainant as meaning consistently truthful but the 1 given to the appellant as meaning consistently untruthful. She further argued the reference to the appellant downplaying his part did not necessarily relate to whether contact was unlawful but might have concerned some other aspect of the several-minute incident. As to Mr Sooka, Ms Parker submitted the assessment as 3 showed his evidence was accepted, yet his evidence was wholly incompatible with the prosecution case, rendering the verdict illogical.

Mr Chinweze, for the respondent, submitted that the justices did not unequivocally accept the evidence of the appellant or Mr Sooka, that they reached a reasonable decision on the evidence, and that there was no ground for overturning the verdict. He emphasised that the assessments in column 2 had to be read with the reasons in column 3. Although the complainant and appellant each received assessment 1, only the former was accepted unequivocally. Unlike the appellant and Mr Sooka, the complainant had neither downplayed her role nor been exposed in cross-examination. He relied on Oladimeji v DPP [2006] EWHC 1199 (Admin) and Retrobars Wales Ltd v Bridgend County Borough Council [2012] EWHC 3834 (Admin) for the principles that credibility is a matter for the trial court, interference on appeal will be rare, and findings of fact will only amount to an error of law if no reasonable bench could have reached them. In reply, Ms Parker clarified she did not seek to challenge the justices’ findings but submitted the findings showed the burden of proof had not been discharged to the criminal standard.

Lord Justice Holroyde, with whom Mrs Justice Whipple agreed, rejected the appellant’s submissions. He noted that on page 4 of the form the justices were satisfied that unlawful force had been proved to the criminal standard, were sure the appellant had laid his hand on the complainant against her will, and rejected the evidence he was acting protectively. There was a clear evidential foundation for that finding. Although the appellant’s evidence was assessed as clear and consistent, the justices found he downplayed his part. In the context of the defined issue, that finding related to whether unlawful force was used and was entirely consistent with the justices’ rejection of the assertion that contact was merely protective. As to Mr Sooka, his assessment as 3 and the finding that his evidence was accepted notwithstanding inconsistencies had to be read with the further finding that his evidence did not, or did not all, stand up to cross-examination. Although not worded as clearly as might be wished, it was nonetheless clear that not all of Mr Sooka’s evidence was accepted. The justices were entitled to convict on the basis of their findings of fact. Lord Justice Holroyde answered the certified question in the affirmative.

Lord Justice Holroyde then made observations about the form or template. Neither counsel had previously encountered such a form. Mr Chinweze’s enquiries of the magistrates’ court had gone unanswered. It appeared the form was an internal document provided as a template for justices to note their assessment of evidence during deliberations. If used only as an aide-memoire and the six categories treated as convenient shorthand, it might serve a limited purpose, but it could not be regarded as a comprehensive analysis of evidence and was at best unhelpful and at worst capable of causing misunderstanding. The footnote listing six assessments was far from all-embracing. Remarkably, none allowed a positive assessment of credibility, though category 6 allowed the contrary finding. Clarity and consistency might be important features but were not the same as credibility; a witness might be clear and consistent but dishonest or mistaken, or unclear and inconsistent on one matter without losing all credibility on others. Categories 3 and 5 could be no more than very brief shorthand and might give rise to argument. Category 4 was ambiguous and it was difficult to see what it added to category 6. The differing terms used to describe the categories in this case (numerical scale, score, numerical score) showed uncertainty as to their status and worryingly hinted at providing some arithmetical basis for assessing evidence. If used in future as a written statement of reasons, the form was capable of giving rise to further issues and challenges. His Lordship urged the justices’ clerk to give urgent consideration to whether the form should be amended or whether provision should be made as to its use or non-use as a written statement of reasons.

In short, the justices were entitled to convict notwithstanding their assessments of the defence evidence as clear and consistent and as accepted, because those assessments had to be read with their findings that the appellant downplayed his part and that Mr Sooka’s evidence did not stand up to cross-examination, and their overall conclusion that the prosecution had proved unlawful contact to the criminal standard.

Oladimeji v Director of Public Prosecutions [2006] EWHC 1199 (Admin)
Retrobars Wales Ltd v Bridgend County Borough Council [2012] EWHC 3834