In the Matter of an Application for a production order under paragraph 5 of Schedule 5 to the Terrorism Act 2000
And in the Matter of an application by JAMES MATTHEWS for a defendant's costs order under s. 16(2) of the Prosecution of Offences Act 1985
B e f o r e :
| CHANNEL 4 TELEVISION CORPORATION
|- and -
|THE COMMISSIONER FOR POLICE FOR THE METROPOLIS
Stuart Biggs (instructed by Metropolitan Police Legal Department) for the Applicant
James Matthews did not appear and was not represented
Hearing date: 14th December 2018
Crown Copyright ©
Mr. Justice Edis:
66 Judges having powers of District Judges (Magistrates' Courts)
(1) Every holder of a judicial office specified in subsection (2) has the powers of a justice of the peace who is a District Judge (Magistrates' Courts) in relation to–
(a) criminal causes and matters.
(2) The offices are–
(a) judge of the High Court;
The defendant's costs order for Mr. Matthews, under s.16 POA 1985.
"His Lordship requires submissions in writing from you addressing the effect of s.16A of the Prosecution of Offences Act 1985 on that part of this claim which relates to the costs of Bindmans."
The application for an order for payment of Channel 4's costs of the production order application
The submissions on the power/jurisdiction to award costs
i) there is no jurisdiction to make an order for costs in relation to an application for a production order under the TA 2000, s.37/Sch 5, para 5;
ii) the application was not "inappropriate or unnecessary"; and
iii) the application did not meet the test set out in the authorities for an order for costs under the POA s.19.
i) Channel Four accepts that there is no directly applicable statutory jurisdiction to award costs. However, it submits that not to award it its costs would be a breach of its Article 10 rights. It submits, that s.19 POA 1985, which ordinarily governs costs in criminal proceedings can (and therefore must by reason of s.3 of the Human Rights Act 1998 ("HRA")) be read down so as to enable a successful broadcaster-respondent to be awarded costs even in proceedings which are not criminal proceedings and even where the requirement in section 19 for there to have been an improper act or omission is not met;
ii) Alternatively, he submits:
a) section 19 may be read to permit the award of costs where the Applicant's conduct of the application constituted unnecessary or improper acts or omissions, and,
b) the conduct of the MPS in this case constituted such impropriety.
i) There is no jurisdiction to award costs in proceedings for a production order under the TA 2000.
ii) The refusal of cost would not breach Article 10.
iii) The court is not equipped (under section 3 of the HRA) to fashion a costs power where there is none because to do so would call for legislative deliberation. This includes reliance on the clear words of the two Acts of Parliament under consideration, the TA 2000 and the POA 1985 and the submission that Parliament clearly intended the effect contended for and was entitled so to do.
iv) Section 19 cannot be read down in a manner such as to apply to proceedings which are not criminal proceedings, or to award costs where there is no requisite impropriety, as to do so would change the substance of the provision entirely.
v) In any event, the MPS's conduct of the proceedings did not constitute or involve "an unnecessary or improper act or omission".
i) First, he said that because Sch. 5 to the TA 2000 is silent on costs, it is not necessary to read it down or to apply s.3 of the HRA. Instead, the court is required by s.6 of the HRA to read CrimPR 45.7 as if it did contain a provision permitting the court to award costs because that is necessary in order to comply with its statutory duty. s.6 provides as follows:-
6.— Acts of public authorities.
(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(2) Subsection (1) does not apply to an act if—
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.
ii) He relies on s.3 of the HRA only if necessary, and contends that the court is required to read Sch. 5 as though it contained a discretionary power to award costs.
iii) In oral submissions, Channel 4's reliance on s.19 POA and s.45 SCA was relegated to a subordinate position. These had been his principal contentions previously.
The submissions on the merits, if power exists
i) it is necessary for the preservation of the Article 10 rights of journalists and broadcasters that there should be a power to award costs if production orders are unsuccessfully sought against them. This is because otherwise there would be a chilling effect in the free investigation of difficult subjects, such as the present, which would inhibit the freedom of the press and would be contrary to the public interest. The chilling effect would operate at two levels, and would particularly affect individuals or small corporations. First, it would tend to affect their decisions about what to investigate, and what they should steer clear of for fear of becoming embroiled in costly litigation with the state. Secondly, at the point where a production order is sought, it would encourage the journalist to surrender his or her material for fear of otherwise incurring substantial costs in resisting the production order;
ii) these consequences would be highly undesirable because it is of the utmost public importance that the activities of British subjects involved in conflict abroad, and of the state in dealing with those activities, should be subject to scrutiny. It is submitted that this scrutiny becomes impossible where the journalist is unable to give a reliable assurance to sources that they will not be exposed (unless, like Mr. Matthews, they want to be). It is also suggested that any perception among such sources that the journalist was a de facto investigative arm of the British state would be dangerous to the journalists and render their investigations impossible. I am condensing these submissions because they rely on the evidence served in answer to the substantive production order application and because they rely on concepts and factual situations which are very well rehearsed in the authorities. The production order application was heard in open court, and the evidence in support is in the public domain. It is not necessary to set it out further in this judgment on costs. I accept that these concerns are well-founded in fact, and that together they are a very important consideration. The authorities which drive this conclusion are well-known and will not benefit from a further digest in this first instance ruling on costs. In the present context the principles were set out in R. (oao Malik) v. Manchester Crown Court  EWHC 1362 (Admin). I have them well in mind without setting them out.
iii) So far as the conduct of the production order application in this case is concerned, Channel 4 principally relies on the failure of MPS to tell it in the application that an application to stay the proceedings as an abuse was likely. If it had known that, it is argued, it would have made an application to adjourn the application pending the outcome of the stay application and would not have spent nearly as much as it did. This failure is said to be a breach of the duty to give full disclosure when making applications of this kind. An aspect of that is the decision to apply for a production order without notice to Mr. Matthews, the defendant in the criminal proceedings. That decision prevented him from telling Channel 4, as otherwise he might have done, that he was planning to apply to stay those proceedings as an abuse of process.
The legal background
Strand 1: materials relevant to the construction of Sch. 5 of TA 2000.
The costs of any application under this Schedule and of anything done or to be done in pursuance of an order made under it shall be in the discretion of the judge."
(4) Subject to section 8 of the Criminal Procedure (Attendance of Witnesses) Act 1965 (substitution in criminal cases of procedure in that Act for procedure by way of subpoena) and to any provision contained in or having effect under this Act, the Crown Court shall, in relation to the attendance and examination of witnesses, any contempt of court, the enforcement of its orders and all other matters incidental to its jurisdiction, have the like powers, rights, privileges and authority as the High Court. [emphasis added].
Costs Between Parties in Crown Court
12 Jurisdiction to award costs
(1) Subject to the provisions of section 109(1) of the Magistrates' Courts Act 1980 (power of magistrates' courts to award costs on abandonment of appeals from magistrates' courts) and sections 22(4) and 81B(4) of the Licensing Act 1964 (application of section 109(1) of the Act of 1980 to appeals under sections 21 and 81B of the Act of 1964), no party shall be entitled to recover any costs of any proceedings in the Crown Court from any other party to the proceedings except under an order of the Court.
(2) Subject to section 4 of the Costs in Criminal Cases Act 1973 and to the following provisions of this Rule, the Crown Court may make such order for costs as it thinks just.
52 Costs in Crown Court
(1) Crown Court Rules may authorise the Crown Court to award costs and may regulate any matters relating to costs of proceedings in that court, and in particular may make provision as to—
(a ) any discretion to award costs ;
(b) the taxation of costs, or the fixing of a sum instead of directing a taxation, and as to the officer of the court or other person by whom costs are to be taxed ;
(c) a right of appeal from any decision on the taxation of costs, whether to a Taxing Master of the Supreme Court or to any other officer or authority ;
(d) a right of appeal to the High Court, subject to any conditions specified in the rules, from any decision on an appeal brought by virtue of paragraph (c);
(e) the enforcement of an order for costs; and
(f) the charges or expenses or other disbursements which are to be treated as costs for the purposes of the rules.
(2) The costs to be dealt with by rules made in pursuance of this section may, where an appeal is brought to the Crown Court from the decision of a magistrates' court, or from the decision of any other court or tribunal, include costs in the proceedings in that court or tribunal.
(3) Nothing in this section authorises the making of rules about the payment of costs out of central funds, whether under the Costs in Criminal Cases Act 1973 or otherwise, but rules made in pursuance of this section may make any such provision as is contained in section 4 of that Act (awards by Crown Court as between parties).
It is to be noted that the scheme of the CPR was to preserve many of the Crown Court Rules by adoption and I stress that section 69 Courts Act 2003 only covers the criminal aspects of the work in the Crown Court and the Magistrates' Courts. Section 84 Senior Courts Act 1981 continued to give the Crown Court Rule Committee (now abolished: S.I 2012/2398) the power to make Rules of Court that regulate the practice and procedure in non-criminal cases in the Crown Court. Therefore, the pre-existing rule-making scheme was only partially replaced. Therefore, the Crown Court Rules did not, in their entirety, cease to have effect and, for instance, they continue to govern aspects of civil cases in those courts. In summary, the pre-existing rule-making powers were varied to exclude any power to make procedural rules in relation to criminal matters (see, for example, Courts Act 2003, Schedule 8, paragraph 245(1) and (2) and the Schedule to the Courts Act 2003 (Consequential Amendments) Order, paragraph 15(1) and (2), along with the changes that were made to the wording of section 84 of the Senior Courts Act 1981)."
i) The old power conferred by CCR 1982 r.12 no longer exists in relation to proceedings which are properly categorised as a "criminal cause or matter", see ; and
ii) The Crown Court does not acquire a general jurisdiction to award costs by virtue of s.45 of the SCA 1981, set out above: see .
(4) In the Terrorism Act 2000, in Part 1 of Schedule 5 (making of orders and issue of warrants in respect of obtaining information in terrorist investigations: England and Wales and Northern Ireland), in paragraph 11 (which deals with the issue of warrants in respect of excluded or special procedure material), after sub-paragraph (4) insert—
"(5) Criminal Procedure Rules may make provision about proceedings relating to a warrant under this paragraph."
Strand 2: legal materials relevant to the application under s.19 POA 1985
19 Provision for orders as to costs in other circumstances
(1) The Lord Chancellor may by regulations make provision empowering magistrates' courts, the Crown Court and the Court of Appeal, in any case where the court is satisfied that one party to criminal proceedings has incurred costs as a result of an unnecessary or improper act or omission by, or on behalf of, another party to the proceedings, to make an order as to the payment of those costs.
Costs Unnecessarily or Improperly Incurred
3 Unnecessary or improper acts and omissions
(1) Subject to the provisions of this regulation, where at any time during criminal proceedings--
(a) a magistrates' court,
(b) the Crown Court, or
(c) the Court of Appeal
is satisfied that costs have been incurred in respect of the proceedings by one of the parties as a result of an unnecessary or improper act or omission by, or on behalf of, another party to the proceedings, the court may, after hearing the parties, order that all or part of the costs so incurred by that party shall be paid to him by the other party
(3) An order made under paragraph (1) shall specify the amount of costs to be paid in pursuance of the order.
i) these proceedings are not "criminal proceedings" even though they are a "criminal cause or matter" and therefore the power under s.19 does not arise. I have started my judgment by concluding that these are not criminal proceedings, but that they are a criminal cause or matter.
ii) the conduct issues said to amount to "unnecessary or improper acts or omissions" in this case, taken at their highest, lack the necessary "impropriety" to justify the making of an order.
i) Customs & Excise v. City of London Magistrates' Court  1 WLR 2020 is authority against Channel 4 on this issue, albeit one decided before s.3 HRA came into force.
ii) The Legal Aid, Sentencing and Punishment of Offenders Act 2012, s.14 provides a definition of "criminal proceedings", albeit only for the purposes of that provision:-
14 Criminal proceedings
In this Part "criminal proceedings" means—
(a) proceedings before a court for dealing with an individual accused of an offence,
(b) proceedings before a court for dealing with an individual convicted of an offence, including proceedings in respect of a sentence or order,
(c) proceedings for dealing with an individual under the Extradition Act 2003,
(d) proceedings for binding an individual over to keep the peace or to be of good behaviour under section 115 of the Magistrates' Courts Act 1980 and for dealing with an individual who fails to comply with an order under that section,
(e) proceedings on an appeal brought by an individual under section 44A of the Criminal Appeal Act 1968 (appeal in case of death of appellant),
(f) proceedings on a reference under section 36 of the Criminal Justice Act 1972 on a point of law following the acquittal of an individual on indictment,
(g) proceedings for contempt committed, or alleged to have been committed, by an individual in the face of a court, and
(h) such other proceedings, before any court, tribunal or other person, as may be prescribed.
Discussion and decision
The costs power in Sch.5 of TA 2000
s.19 POA 1985
"I consider that cases in which it will be appropriate to make (let alone grant) a section 19 application against a public prosecutor will be very rare, and restricted to those exceptional cases where the prosecution has made a clear and stark error as a result of which a defendant has incurred costs for which it is appropriate to compensate him."
The meaning "improper act or omission"
28. As we have set out in the judgment given by the judge in this case he relied upon the definition of "improper" set out in the decision of the Divisional Court in DPP v Denning. Although we have determined that the order must be quashed as the judge had no jurisdiction to make it, it is important to draw attention to the later decision of the Court of Appeal in Ridehalgh v Horsefield  Ch 205 where Sir Thomas Bingham, MR (as he then was), gave the following definition at page 232:
""Improper" means what it has been understood to mean in this context for at least half a century. The adjective covers, but is not confined to, conduct which would ordinarily be held to justify disbarment, striking off, suspension from practice or other serious professional penalty. It covers any significant breach of a substantial duty imposed by a relevant code of professional conduct. But it is not in our judgment limited to that. Conduct which would be regarded as improper according to the consensus of professional (including judicial) opinion can be fairly stigmatised as such whether or not it violates the letter of a professional code."
29. It is clear from a further passage in the judgment of the court at page 239 that this was meant to apply to criminal as well as civil cases. Sir Thomas Bingham said at 239:
"We therefore hope that this judgment may give guidance which will be of value to criminal courts as to civil, but we fully appreciate that the conduct of criminal cases will often raise different questions and depend on different circumstances."
30. We therefore wish to express our agreement with the view recently expressed by Simon J in his ruling in R v Geoffrey Counsell given at the Crown Court at Bristol on 13 March 2014 when he made clear that the test for impropriety is the rigorous test as set out in Ridehalgh and not the test set out in Denning.
"147 Consequently, although, for the reasons I have given, the threshold tests under section 19 and 19A respectively are conceptually different and not properly comparable, looking at matters more broadly, I do not consider that the hurdle under section 19 should be perceived as greatly "lower" than that under section 19A. In most cases, as the authorities illustrate, the result of applying either would be the same."
s.45 SCA 1981