England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Wood Green Crown Court
His Honour Judge PAWLAK
T20111354

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/05/2013

The Honourable Mr. Justice OPENSHAW :

1. This is an appeal by Joseph Hill and Co, ('the appellants'), a firm of solicitors against a wasted costs order made at Wood Green Crown Court by His Hon Judge Pawlak on 29^th August last following a criminal trial at which they represented the acquitted defendant, whom we need not name.
2. Let us start by setting out the facts. The defendant was charged with violent disorder arising out of the disturbances in London in the summer of 2011. The prosecution case against him depended on the correctness of his identification from CCTV as being the person who threw a bottle at police officers outside Tottenham Police station at about 6.50 on the evening of 6^th August.
3. The defendant was arrested on 28^th October 2011. He was represented at the subsequent police interview and indeed throughout these proceedings by the appellants, who specialise in criminal business.
4. At that interview, he gave a prepared statement in which he said that the identification was mistaken. He did not make any positive assertion that he was not outside the police station, or elsewhere, let alone that any one else could confirm that he was elsewhere.
5. The PCMH was on 6^th January 2012, which was before the Defence Statement was due. Defence counsel endorsed the PCMH form to the effect that the issue in the case was 'identification'; no positive case of alibi was then asserted. At that hearing, a direction was given that the Defence Statement was to be served by 20^th January. The trial was listed for the week commencing 23^rd April 2012; it was eventually fixed for 26^th April.
6. On 19^th January, the defendant provided the appellants with instructions, which were put into a proof of evidence. It is important to note that, despite several requests from the appellants that he should do so, the defendant has not waived privilege. That, we make clear, is his absolute right. The instructions which he provided were promptly sent to counsel, whom we need not name.
7. The appellants, in their letter to the Crown Court dated 14^th May, (that is to say after the trial), made clear that the defendant in his proof of evidence had '… provided full instructions and identified three potential alibi witnesses'. In the light of what happened at the trial, this must necessarily mean that he identified them by name or at least identified them as being close members of his family, including presumably his father.
8. On 9^th February, counsel drafted the Defence Statement in these terms: 'the defendant denies being present outside Tottenham Police Station on Saturday 6^th August 2011. The defendant believes that at the material time he would have been at his home address'. His home address, we interpose, was a 20 minute walk from Tottenham Police Station.
9. Counsel specifically advised that the names and addresses of the potential alibi witness should not be disclosed unless and until that witness had provided the appellants with a signed witness statement. Indeed she even advised that the existence of potential alibi witnesses should not be disclosed. We shall have to consider the correctness of that advice.
10. The solicitor having conduct of the case on behalf of the appellants agreed with that advice and accepted it.
11. The appellants made a number of appointments for these potential alibi witnesses to attend their offices to provide a proof of evidence; which appointments they failed to keep. The appellants even offered to meet them at some place and time convenient to them. None of the potential witnesses took up that offer. It seems to us that the appellants did all they reasonably could to persuade them to come forward, but – as we have already made clear – they did not alert the prosecution to their existence or to their status as potential witnesses.
12. Eventually, at 7 o'clock on the evening of 25^th April, the day before the trial was due to start, the defendant turned up with his father at the appellants' offices, without an appointment and after they had closed for business for the day. There was by chance a trainee solicitor still on the premises, who had had no other dealing with the case, who - very conscientiously - then took a short proof of evidence from the father alleging that he had been at home with the defendant at the relevant time, and that he had been with him all day.
13. The following day 26^th April, the father's name and address was provided to the prosecution as a person who might be called as an alibi witness. The father was in fact there at court; it is suggested that the prosecution could have interviewed him there and then but it is not entirely clear whether was a police officer at court who was in a position to interview him or whether the witness would have spoken to the police if they had then tried to interview him.
14. The trial before His Hon Judge Pawlak started on Thursday 26^th April. (Friday 27^th was lost because a juror was ill.) The prosecution had closed their case by mid afternoon on Monday 30^th April; the defendant then gave evidence to the effect that he had been at home, which fact, he said, could be confirmed by his father, amongst others.
15. On Monday 30^th April, the father was called on behalf of the defendant; he said that he had been with his son at home at the relevant time and remained at home for the rest of the evening but he added the additional detail - which was quite contrary to what he had said in his proof of evidence - that he had returned home from work as a bus driver at 5 o'clock; in saying this the witness had 'gone off proof'.
16. The police immediately made enquiries with the father's employers and discovered that the records of the bus company showed that he (the father) did not leave work until 6.40 that evening and therefore he could not have retuned home at 5 o'clock as he had said in evidence. If this was right, the father's evidence in support of the alibi was entirely discredited.
17. Having discovered this, on Tuesday 1^st May, the prosecution successfully applied to call rebuttal evidence to this effect. However, there was a delay between 10.15 until 12.45 whilst the witness from the bus company came to court with the records. He finished his evidence at 13.05.
18. The defence then successfully applied to recall the father to deal with this point; but since he was then driving a long distance bus, he could not return to court that day; the rest of the afternoon of 1^st May was therefore lost as well. The father was recalled to give evidence the following morning (Wednesday 2^nd May). After a commendably short summing up, the jury were sent out at lunch time that day and returned, with a not guilty verdict, mid afternoon, presumably having taken heed of the judge's direction that a false alibi did not necessarily bolster a weak identification.
19. At the conclusion of the trial, the judge said that he required one of the partner's in the appellant's firm to attend court to show cause why a wasted costs order should having regard to ' … why they did not comply with the rules as to alibi notices and the disclosure of the defence witness (called in the event) as a result of which a day of court time was wasted'.
20. The appellant's replied by letter dated 14^th May, to which we have already referred.
21. We turn then briefly to set out the law on wasted costs.

The statutory jurisdiction is to be found in section 19A of the Prosecution of Offences Act 1985: 'In any criminal proceedings … the Crown Court … may … order the legal or other representative concerned to meet, the whole of any wasted costs or such part of them as may be determined …'

By section 19A (3): 'wasted costs' means any costs incurred by a party (a) as a result of any improper, unreasonable or negligent act or omission on the part of any representative or any employee of a representative'.

22. We also refer to the Practice Direction (Costs in Criminal Proceedings) issued by the Lord Judge, Chief Justice on 30^th July 2010, the relevant part of which reads as follows:

Part 4.2.4:

iv. A three-stage test or approach is recommended when a wasted costs order is contemplated:

(a). Has there been an improper, unreasonable or negligent act or omission?

(b). As a result have any costs been incurred by a party?

(c). If the answers to (a) & (b) are yes, should the court exercise its discretion to disallow or order the representative to meet the whole or any part of the relevant costs, and if so what specific sum is involved?

vi. The judge must specify the sum to be allowed or ordered. Alternatively the relevant available procedure should be substituted should it be impossible to fix the sum.

Part 4.2.5:

vii. The primary object is not to punish but to compensate, albeit as the order is sought against a non party, it can from that perspective be regarded as penal.

x. Because of the penal element a mere mistake is not sufficient to justify an order, there must be a more serious error

xii. The normal civil standard of proof applies but if the allegation is one of serious misconduct or crime clear evidence will be required to meet that standard.

23. We move on to Ridehalgh v Horsefield [1994] Ch 205, and quote from the judgment of Sir Thomas Bingham M.R. at page 232:

"Improper, unreasonable or negligent: … In our view the meaning of these expressions is not open to serious doubt.

"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.

"Unreasonable" also means what it has been understood to mean in this context for at least half a century. … But conduct cannot be described as unreasonable simply because it leads in the event to an unsuccessful result or because other more cautious legal representatives would have acted differently. The acid test is whether the conduct permits of a reasonable explanation. If so, the course adopted may be regarded as optimistic and as reflecting on a practitioner's judgment, but it is not unreasonable.

[W]e are clear that "negligent" should be understood in an untechnical way to denote failure to act with the competence reasonably to be expected of ordinary members of the profession. In adopting an untechnical approach to the meaning of negligence in this context, we would however wish firmly to discountenance any suggestion that an applicant for a wasted costs order under this head need prove anything less than he would have to prove in an action for negligence: "advice, acts or omissions in the course of their professional work which no member of the profession who was reasonably well-informed and competent would have given or done or omitted to do;" an error "such as no reasonably well-informed and competent member of that profession could have made:" … We were invited to give the three adjectives (improper, unreasonable and negligent) specific, self-contained meanings, so as to avoid overlap between the three. We do not read these very familiar expressions in that way. Conduct which is unreasonable may also be improper, and conduct which is negligent will very frequently be (if it is not by definition) unreasonable. We do not think any sharp differentiation between these expressions is useful or necessary or intended.'

24. We turn then to the law relating to defence statements.

Section 5 (5) of the Criminal Procedure and Investigations Act 1996 provides that: '… the accused must give a defence statement to the court and to the prosecutor'.

Section 6A 2 (a) (added by section 33(2) of the Criminal Justice Act 2003), provides that: 'A defence statement that discloses an alibi must give particulars of it, including: (a) the name, address and date of birth of any witness the accused believes is able to give evidence in support of the alibi, or as many of those details as are known to the accused when the statement is given'.

25. Because the statute itself sets out the procedure, the Criminal Procedure Rules Part 22.4 merely recites the statutory provisions and does not make any additional requirements.
26. Section 6C (notification of intention to call defence witnesses), which would otherwise apply, is not engaged if notice of alibi has already been given under section 6A (2)(a); so in this case, we need not consider this section further.
27. We have also been referred to non statutory professional guidance on the drafting of Defence Statements given by the Standards Committee of the Bar Standards Board , which recognised – among other points – at paragraph 3, '… the crucial importance of … (iii) getting statements from material witnesses'.
28. Some guidance to solicitors is given by the Law Society in their publication entitled: 'Active defence: Alibi and Making Defence Disclosure', which suggests that proofs of evidence should be taken from alibi witnesses before drafting the defence statement.
29. The matter eventually came on for hearing before His Hon Judge Pawlak on 28 August, when in the course of a long judgment, the judge concluded that there was a deliberate and ill advised breach of the requirement to give notice of the particulars of alibi, that this was improper and unreasonable, that the breach had caused wasted costs, which he considered to be the costs of a full day. We will return to the quantum of the order once we have dealt with matters of principle. The judge made no findings against counsel nor indeed against the solicitor at the appellants who had personal conduct of the case at the time but held that it was the responsibility of the solicitors to comply with the statutory requirements regardless of the advice given by counsel.
30. The appellants now appeal against this wasted costs order, pursuant to Regulation 3C of the Costs in Criminal Cases (General) Regulations 1986.
31. They also seek an extension of 8 days in which to appeal; since this is attributable to the delay in obtaining the relevant transcripts and to a change of counsel, we grant the extension.
32. The first question is whether there was there a breach of section 6A (2) (a) of the Criminal Procedure and Investigations Act 1996. This raises an important point of principle. The obligation is to give notice to the prosecution of the name, address [and date of birth] of any witness whom the defendant 'believes is able to give evidence in support of his alibi'. This is important to the prosecution since it prevents 'ambush' alibi defences which were common before the introduction of the similar rule in the Criminal Justice Act 1967. The prosecution need sufficient notice so that they can properly investigate alibis asserted; not infrequently, seeing one witness triggers a series of other enquiries; hence the need for timely disclosure of these details. Furthermore, full disclosure of the details of a truthful alibi can be an important safeguard to the defence, because a timely investigation can lead to the prosecution being discontinued.
33. It may well be prudent for those drafting defence statements to have a signed proof of evidence from an alibi witness before drafting a defence statement but in very many cases this will be entirely impracticable or even impossible, for a variety of reasons, not least because alibi witnesses are sometimes reluctant.
34. The statutory obligation to give the name and address of an alibi is triggered by the defendant's belief that the witness is able to give evidence in support of the alibi. It is not necessary that the alibi witness can give such evidence let alone that he or she is also willing to do so. Nor is the defendant's belief in the witness's ability to give evidence dependent on the witness giving a proof of evidence; if it were, the efficacy of this provision would be easily defeated by the failure of the witness to co-operate.
35. We have no doubt that the practice, if such it be, of advising that the names and addresses of alibi witnesses should not be disclosed unless and until they have provided signed proofs of evidence is misguided and wrong. It is doubtless based on the concern that a defendant might be criticised if a person identified in the notice does not, in fact, give evidence. In certain cases, that might be justified; in other cases, given that the notice is triggered only by the defendant's belief (rather than certain knowledge), it would be wrong to do so.
36. Here, the defendant instructed the appellants that his alibi could be confirmed by three potential witnesses, each of whom was a close relative; although he could obviously give their names and addresses, he was apparently unable - or at that stage unwilling - to say which, if any of them, would actually come to court to give evidence to that effect. Counsel no doubt realised that this formula was not satisfactory and did not comply with the requirements of the Act but, in our judgment, this did not justify omitting all reference to the potential alibi witnesses altogether. If the defendant himself could not or would not be more specific, then counsel could - and we think should - have identified those members of the family who were in the house at the relevant time, for these were the persons who, the defendant believed, were then able to give evidence in support of his claim to have been there himself.
37. We accept that the father did not come forward until 25^th April, the day before the trial, but the defendant knew long before then that he was able to give evidence in support of his alibi that he was at home. Indeed it must have been known to the appellants since the defendant gave his proof back in January. Justice was not served by concealing this until he gave a proof of evidence.
38. In these circumstances, we think that the judge was right when he held that there was a breach of the requirements of section 6A (2) (a) of the CPIA 1996. We do not doubt the good faith of counsel, who plainly believed that she was acting correctly, but we have come to the clear conclusion that her understanding of the section was wrong. The same goes for the solicitor who had conduct of the matter; individual solicitors and indeed firms of solicitors must, of course, come to their own conclusions as to the proper course of conduct but they are entitled to take into account views of experienced junior counsel.
39. Furthermore, it is quite clear from the correspondence we have seen from others, including some very experienced criminal practitioners, that the view taken by counsel was quite widely held.
40. However, applying the standards as laid down by Sir Thomas Bingham M.R. (to which we have already referred), although the appellants may have fallen into error, we do not think it can be said that they were acting in a way in which no reasonably competent solicitor could have acted in the circumstances. We have no doubt that the appellants' conduct was not improper and we are not satisfied that it was unreasonable either. Of course, in the future, now we have explained the proper interpretation of the requirements of section 6A, no one can reasonably make this mistake again. But we overturn the judge's finding that their conduct was improper and unreasonable at the time.
41. Furthermore, we might add for good measure that that it is not at all clear to us that this breach did in fact cause wasted costs to be incurred. Even if the defence statement had disclosed that the father was among those close relatives who the defendant believed was able to give evidence to assist the alibi, it is unlikely that the defendant and the father would have been any more willing to assist the police and the prosecution than they were to assist the defence. If they did not co-operate with the defence until 25^th April, it seems to us to be most unlikely that they would have co-operated with the prosecution. We think that the strong likelihood is that the father would not, in any event, have provided a statement until immediately before the trial.
42. Moreover, as it turned out the actual delay in the trial was caused not so much by late appearance of the witness but by his unexpected declaration that he had come home from work at 5 o'clock; this was not in his proof of evidence; indeed it was contrary to it, for he had said that he had been at home all day; this was unknown even to the appellants until he gave that evidence in court. So even if the appellants had given his name and address in the defence statement, as they should have done, they would not have given this fact, first, because there was no need to and, secondly, it was unknown to them. We are therefore far from satisfied that the failure to give details of the name of the alibi witness caused any delay to the trial, which we think is likely to have occurred in any event.
43. Nor is this all, for we might add that it is far from clear to us that the delay extended to a full day.
44. There is the further difficulty that the judge failed to specify the amount of the wasted costs order. He seems to have ordered that the appellants paid the equivalent of one day's refresher of the defence counsel to the Legal Services Commission and one day's refresher to the prosecution. We accept that a figure may be certain if it can be readily ascertained but this formula has not been as easy to work out as he thought. Indeed the figure has still not been provided either by the court or by the CPS, who never sought this order in the first place. We very much doubt that the judge did enough to specify the amount of wasted costs. So for this reason also the wasted costs order fails.
45. So for all these different reasons we quash the order made.
46. We end with this footnote: there is an ever pressing need to ensure efficiency in the courts; the judges, the parties and most particularly the practitioners all have a duty to reduce unnecessary delays. We do not doubt that the power to make a wasted costs order can be valuable but this case, and others recently before this Court, demonstrate that it should be reserved only for the clearest cases otherwise more time, effort and cost goes into making and challenging the order than was alleged to have been wasted in the first place.