A three-year legal saga ended last week when it was ruled that the arrest of Fathers4Justice founder, Matt O’Connor, for a minor Public Order Act offence, was ‘unlawful’.
O’Connor, 50, from Clapham, was arrested outside his former home in Stockbridge, Hampshire on 4th September 2014 for a minor Section 5 Public Order Act offence.The case involved 14 hearings, 12 judges and a Judicial Review by Lord Justice Fulford and Mr Justice Leggatt in the High Court in October 2016, which ruled that an attempt by Aldershot Magistrates Court to exclude the public from O’Connor’s trial was also ‘unlawful’, in a landmark ruling that backed the presumption of ‘open justice’ for defendants.
Read the judgment here: http://www.bailii.org/ew/cases/EWHC/Admin/2016/2792.html
The combined costs of O’Connor’s prosecution are estimated to have cost the taxpayer in excess of £100,000.
At an appeal hearing in Guildford Crown Court on 7th December 2017, His Honour Judge Fraser ruled there was ‘no case to answer’ and acquitted O’Connor, stating the arrest had been ‘unlawful’.
A 20 minute long recording of video and audio evidence was played in court and directly contradicted the prosecution case.
In another unusual decision, HHJ Fraser granted rights of audience to O’Connor’s lay advocate, Dr Michael Pelling. At a previous hearing on 1st December, HHJ Fraser said the rights of audience should only be granted in ‘exceptional circumstances’. Dr Pelling had also previously represented O’Connor in the successful Judicial Review in October 2016.
O’Connor has maintained his arrest and prosecution was malicious and politically motivated, and was linked to a violent attack at his home in February 2014 which involved Cabinet Office Minister, Caroline Nokes MP.
It is alleged Hampshire Police covered up the MPs involvement in that incident ahead of the 2015 General Election. No charges were filed against those involved.
O’Connor is now understood to be preparing a civil action for unlawful arrest, assault and false imprisonment.
Both Dr Pelling and Matt O’Connor are ‘open justice’ campaigners and believe defendants and litigants in person should have the right to chose an ‘advocate’ of their choice to represent them, rather than using a solicitor or barrister, who are unaffordable for many because of legal aid cut backs.
They say many defendants are being unlawfully convicted because they cannot afford representation and are being denied their right to a fair trial, under Article 6 of the European Convention of Human Rights.
Said O’Connor, “We have gone some way to establishing several important principles in this case including the right to open justice and the right to an advocate of your choice in court. We have also demonstrated that every interaction with the Police, where the risk of arrest exists, must be filmed and recorded for evidential purposes.”
READ DR PELLING’S LEGAL CASE SUMMARY
On 4 September 2014 Matthew Glyn O’Connor was violently arrested at approximately 8 AM in Stockbridge High Street, Hampshire by PC Robinson 3700 of the Hampshire Police. There had been an altercation between Matt and PC Robinson in which Matt was complaining, and getting no satisfactory answers, about the lack of action of Hampshire Police in investigating a violent attack on Matt and his landlord at Matt’s home in February 2014 and the apparent cover-up of the involvement in this of Caroline Nokes, MP for Romsey & Southhampton North, who had driven the attacker to Matt’s home. Despite assaults at least of the level of actual bodily harm in the presence of witnesses there had been no prosecution. Matt was naturally concerned about the lack of protection for his family, especially as there had been other incidents such as hate mail. In frustration, on the morning of 4 September 2014 Matt swore at PC Robinson and told him to “F.off”. PC Robinson responded, “If you swear at me again I will nick you”. Matt did not swear again but a second later PC Robinson arrested Matt. Swearing at a police officer is not in itself a crime but if other factors are present it could constitute an offence under the Public Order Act 1986.
Matt was then taken to the local Stockbridge Police Office and although he had calmed down no explanation of the reason for the arrest was given to him: it was only 15 minutes later when he was put in a police car to be driven to Basingstoke Police Station, that PC Robinson told Matt that he had been arrested “under Section 5 of the Public Order Act” and cautioned him. Section 28(3) Police and Criminal Evidence Act 1984 states, “no arrest is lawful unless the person arrested is informed of the ground for the arrest at the time of, or as soon as practicable after, the arrest”. The relevant part of s.5 Public Order Act 1986 is:-
5 Harassment, alarm or distress. (1) A person is guilty of an offence if he (a) uses threatening, or abusive words or behaviour, or disorderly behaviour, or within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.
Matt was taken to Basingstoke and charged with this offence; he was held in custody altogether for 11 hours before being released on bail. The offence is a summary offence triable only in a Magistrates Court and the maximum penalty is a level 3 fine.
There then began a lengthy sequence of Court hearings in the Magistrates Courts, the High Court, and on appeal at the Crown Court which culminated in Matt’s acquittal on 7 December 2017 at Guildford Crown Court. First, there were 3 pre-trial hearings for one purpose or another leading to a trial fixture at Aldershot Magistrates Court on 20 February 2015. At one of the earlier hearings the Crown Prosecutor had been heard apparently coaching one of the Prosecution witnesses, Mrs Pamela Bailey, who had allegedly been in the vicinity when Matt swore at PC Robinson. At Aldershot that trial proved abortive because the HMCTS Regional Security Officer and other Court Staff refused to allow Matt’s supporters and other interested persons into the Court to be present as spectators at the trial. The Bench then upheld and acted on that decision. Matt, fortunately, had Dr Michael Pelling, Open Justice campaigner, as his McKenzie Friend, who advised that this was unlawful and there was no justification for refusing to hold the trial in open court. It was contrary to s.121 Magistrates’ Courts Act 1980, Common law, and Article 6 ECHR. Dr Pelling advised Matt not to take part in those circumstances and to ask for an adjournment so that there could be a Judicial Review of the Bench’s refusal to admit people to the Court who wished to attend the trial. The Bench agreed to adjourn the case so that a Judicial Review could be brought.
After a hearing where Leave was granted, and an abortive trial hearing where one of the Judges had to recuse himself, the Judicial Review Trial took place at the High Court on 21 & 24 October 2016 and Judgment was handed down on 4 November 2016. The Judicial Review was successful and the Divisional Court declared that the proceedings at Aldershot on 20 February 2015 were invalid; there were no grounds for excluding the people who wished to attend the trial and their exclusion was unlawful. The Judgment is reported as R v. Aldershot Magistrates Court ex parte O’Connor & Jerrard  EWHC 2792 (Admin). Mr Jerrard, retired solicitor, was joined as a claimant as a representative member of the excluded members of the public. Dr Michael Pelling was granted a discretionary right of audience to represent Matt in the Judicial Review, pursuant to leave under the Legal Services Act 2007. The criminal case then returned to the Magistrates Court to be tried in open court. The High Court Judgment is an important precedent in upholding the Open Justice principle because it refuted claims by HMCTS of their powers to exclude the public from the Courts: any exclusion has to be a decision of the Court on proper grounds. HMCTS as interested party opposed the Judicial Review but their claim to be entitled to eject or refuse admission of the public to the Courts based on proprietary rights in the court premises and buildings was rejected by the High Court.
The case was transferred for hearing to the Salisbury Magistrates Court as Matt had reasonably objected to it continuing in Hampshire. However, a Hampshire District Judge, DJ Callaway, was brought in to hear it and any pre-trial hearings. This did not augur well for the Defence. An application for recusal was made, but refused by DJ Callaway. DJ Callaway adopted a brisk bullying attitude at pre-trial hearings in February and April 2017 and even completed the defence part of the standard Case Management Form himself! When the Defence were given a copy of it, it was found to have serious errors and it had to be corrected. Dr Pelling continued to assist Matt as McKenzie Friend, but when a legal point had to be made and Matt asked if Dr Pelling could address the Court on his behalf this was peremptorily refused. Matt did not feel able to adequately conduct his own defence in person at trial, and could not afford to expensively instruct solicitor/counsel, but it was clear that DJ Callaway would never allow Dr Pelling to represent Matt as advocate at trial. There was no legal aid available. The Defence team concluded that Matt would not get a fair trial with DJ Callaway and he would almost certainly be found Guilty. Dr Pelling advised that a reasonable strategy would be to attend the trial at Salisbury on 28 June 2017 but not take part, and not give the defence evidence, hear the Prosecution case and evidence, and then appeal the inevitable Guilty decision to the Crown Court. An appeal there is by way of complete re-hearing with a presiding Circuit Judge, who would, it was felt, conduct the trial in a more fair and reasonable manner. So this strategy was adopted.
Matt was duly found Guilty by DJ Callaway at Salisbury on 28 June 2017 and duly appealed immediately to the Crown Court. There were 2 pre-trial hearings to determ-ine venue and other procedural directions, such as an Order obtained, but never complied with, that the CPS should disclose the policemen’s pocket books concerning the events of 4 September 2014 and also Matt’s police custody interview transcript and audio recording (the Defence disputed the accuracy of the provided summary of the interview). The Crown Court appeal venue was settled as Guildford Crown Court, out of the SW Region, and the Appeal was set down for hearing on 7 December 2017.
Nearer the Appeal Matt became increasingly concerned about the difficulty in obtain-ing competent representation; there were the same problems of unaffordability to instruct own solicitor/counsel, no legal aid, and inability to conduct the case himself with any pretence of equality of arms with the Crown who would doubtless instruct experienced counsel. Dr Pelling knew the whole case inside out and felt competent to conduct the trial for Matt, albeit his main experience and knowledge are in civil law. So the Defence determined to apply for him to be granted a right of audience for Matt on the Appeal. Matt’s written Application was ordered, at short notice, to be heard in open court on 1 December 2017 before His Honour Judge Fraser at Guildford. Matt was unable to attend due to the short notice, so Dr Pelling attended and was allowed to argue the Application. Matt provided a witness statement and Dr Pelling a Skeleton argument. The Application was granted.
This could be ground-breaking in the area of criminal procedure since while in civil cases discretionary rights of audience are quite often granted to unqualified persons, and there is a long line of authorities as to when this should, or should not, be allowed, it is much rarer in criminal cases and there are very few authorities for this. In fact HHJ Fraser found a very recent case, R v. Conaghan  EWCA Crim.597, where the Court of Appeal Criminal Division [CACD] had given guidance and had ruled that such a right of audience should only be granted in “exceptional circumstances”. The CACD followed and applied the authority of D v.S [1997 1FLR 724 CA and did not cite any other published authorities. Conaghan appears to be the only authority on discretionary rights of audience in criminal cases; the CACD view of the law here is different from the evolved law in civil cases. At any rate, HHJ Fraser felt able to follow Conaghan and Dr Pelling was granted the right of audience to represent Matt.
At the Appeal on 7 December 2017 the Crown was represented by Ms Anne-Marie Critchley of counsel. Their first witness was PC Robinson who gave evidence that he arrested Matt because of a suspected s.5 Public Order Act 1986 offence and that Matt had used abusive words (swearing) or disorderly behaviour (arm waving) within the hearing or sight of persons likely to be caused harassment, alarm or distress thereby. He gave evidence that there were a number of people within hearing or sight. He gave evidence that Matt had sworn at him and told him to “F.off” more than once. He also gave evidence that he had given Matt the ground of arrest and cautioned him within a practicable 2 minutes of arrest. In cross-examination Dr Pelling was not able to establish a bad motive for the arrest and initially was not able to establish that the constable had unreasonably waited 15 minutes before explaining the ground of arrest.
However, a video of the relevant events in Stockbridge High Street taken by Matt’s wife Nadine O’Connor on 4 September 2014 together with an audio recording from Matt’s mobile telephone which covered the events leading up to arrest and went on for a further 15+ minutes to the point where the ground of arrest was given and Matt was cautioned, were then played in Court and put to PC Robinson. The video showed a virtually deserted High Street and that persons whom PC Robinson said had been there simply were not there. The audio proved that Matt swore once at the PC and not after the warning and that the ground of arrest was not given until at least 15 minutes after it was reasonable and practicable to give it to Matt. PC Robinson refused to admit actual lying but was forced to accept that his memory of events was wrong.
Mrs Pamela Bailey was then called by the Crown, but the Defence knew already from the Salisbury trial that her evidence was not strong enough to prove that she was a necessary person “within hearing or sight” to establish the offence. She gave the same evidence at Guildford, admitting she did not hear Matt swear or shout and that she then went into a nearby house upstairs where she could not see Matt or the police in the street and while she did hear shouting she could not make out any words. She admitted she could not know or not if the shouting was actually Matt when he was being arrested and painfully handcuffed (which is what actually happened).
After the close of the Crown’s case His Honour Judge Fraser asked Dr Pelling if he had any application to make. Seeing the way things were going, Dr Pelling promptly applied for the case to be dismissed on the grounds that there was “No Case to Answer” and that the arrest had been unlawful. In making that application he went through all possible candidates for a person “in hearing or sight” and essentially demolished them one by one, so that the ingredients of the offence could not possibly be made out to the criminal standard of proof. He also addressed the Court on the very useful case of Harvey v. DPP  EWHC B1 (Admin) and applied it to the circumstances of the present case. Thus PC Robinson himself could not claim (and did not give evidence) that he was himself caused harassment, alarm or distress, and one member of the public who did walk by near the time when Matt swore and was arrested had rather from the video simply appeared curious about what was going instead of hearing something causing him alarm or distress. Mrs Bailey’s evidence did not establish anything. Other members of the public that PC Robinson had claimed were there were proved to be non-existent. The Crown in reply attempted to rely on post-arrest evidence but the Bench indicated that was hardly possible if the arrest was unlawful, which the Crown had to concede on the evidence must have been the case.
The Bench then retired to consider the “No case to answer” submissions. On return Judge Fraser gave the Court’s judgment acquitting Matt O’Connor. He found that the arrest had been unlawful and that the Crown’s evidence, taken at its highest, was so weak and tenuous that no Court could reasonably convict: i.e. “No case to answer”. Thus Matt and his wife were not even required to give evidence. The Court awarded Defence costs to Matt, to be taxed. The total costs of this saga to the State, that is the taxpayer, from beginning to end with 14 hearings in all including Judicial Review are estimated to be of the order of £100000.
And of course there will now be a civil action for unlawful arrest, assault, false imprisonment, and possibly malicious prosecution, sounding in substantial damages.
© Dr M.J.Pelling, 11 December 2017