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Cite as: 168 JP 657, [2001] Crim App R (S) 136, [1999] EWHC Admin 499, [2001] 1 Cr App R (S) 136, 2001 1 Cr App R (S) 136, [2001] Cr App R (S) 136

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QUEEN v. NORTHALLERTON MAGISTRATES' COURT Ex parte CHRISTOPHER JOHN DOVE [1999] EWHC Admin 499 (25th May, 1999)

IN THE HIGH COURT OF JUSTICE CO/4196/98

QUEEN'S BENCH DIVISION

CROWN OFFICE LIST

DIVISIONAL COURT

Royal Courts of Justice

The Strand

London

Tuesday 25 May 1999

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES

(Lord Bingham of Cornhill )

and

MR JUSTICE OGNALL

THE QUEEN

- v -

NORTHALLERTON MAGISTRATES' COURT

Ex parte CHRISTOPHER JOHN DOVE

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Computer Aided Transcription by

Smith Bernal, 180 Fleet Street, London EC4

Telephone No: 071-421 4040

(Official Shorthand Writers to the Court)

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MISS KAREN McHUGH (instructed by Messrs Ivesons, Hull HU1 1YL)

appeared on behalf of THE APPELLANT

THE RESPONDENT was unrepresented

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J U D G M E N T

(As Approved by the Court )

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Tuesday 25 May 1999

1. THE LORD CHIEF JUSTICE: By this application for judicial review made with leave, Mr Christopher John Dove seeks to quash an order of the Northallerton Magistrates' Court made on 31 July 1998 that he pay £4,642.86 costs to the Ministry of Agriculture, Fisheries and Food. The order arose out of a summons issued by the Ministry against the applicant on 13 March 1998 by which it was alleged that for the purpose of obtaining the whole or part of a compensatory payment, namely an arable area payment, he knowingly or recklessly made a statement which was false or misleading in a material respect, contrary to regulation 19(3) of the Arable Area Payments Regulations 1996 (SI 1996 No 3142) and section 2(2) of the European Communities Act 1972.

2. The matter came before the court on 31 July 1998, when the applicant was represented by counsel and contested the charge. The justices convicted and ordered that the applicant pay a fine of £1,000 and costs to the Ministry in the sum already mentioned.

3. The applicant does not challenge his conviction; nor does he seek in any way to challenge the fine imposed upon him. His challenge is limited to the order for costs. The justices were given a breakdown of the Ministry's costs, divided into investigatory, administrative and legal costs incurred by the Ministry, and it is not suggested that those costs were unreasonable or inordinate. Nor is it challenged that they were incurred. The applicant's challenge is therefore not to the quantum of those costs but to the order that he should pay them.

4. Regulation 19(3) of the Arable Area Payments Regulations 1996, under which he was prosecuted, provides:

"If any person for the purpose of obtaining the whole or any part of a compensatory payment or in purported compliance with any requirement directed at him under regulation 17(4) knowingly or recklessly furnishes information which is false or misleading in a material respect he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale."

5. Section 37 of the Criminal Justice Act 1982 imposes a limit of £5,000 on the fine which may be imposed.

6. The facts relevant to this application are to be found in three affidavits. The first is sworn by the applicant, who in paragraph 6 deposes:

"In considering the question of sentence and costs the Magistrates were advised by Counsel representing me that my gross earnings were approximately £15,000.00 per annum with a zero net surplus income. That simply means that I spend all that I earn and have no surplus left over."

7. The applicant then goes on to depose to various facts which, as I understand, were not before the justices:

"7. In fact I am a director of a limited company called Woodpage Limited and the last audited accounts for that company as at August 1997 showed a £440.00 loss. Jointly with my wife I drew from the company £350.00 per week which actually produces a slightly higher figure of £18,500 per annum. However that is a joint figure and that sum is used to support myself, my wife and our four children."

8. The applicant then goes on in his affidavit to make submissions which include the following:

"However, I am advised and verily believe that the level of costs, in the sum of £4,692.86, imposed upon me was excessive in all the circumstances for the following reasons:

a. The costs represented a considerable proportion of my gross income and was therefore excessive and unfair.

b. The costs Order was not in step with the level of the fine.

c. The costs Order was excessive in relation to sentence generally.

I am further advised that the Order for costs was contrary to natural justice being an Order incapable of appeal to the Crown Court and finally that no reasonable bench of Magistrates could have reached this decision without having misdirected themselves."

9. We have the advantage of a very helpful affidavit sworn by the experienced Justice of the Peace who was acting as Chairman of the Bench on this occasion. He has deposed in these terms:

"5. Counsel for the applicant told us the applicant had a gross annual income of £15,000 but gave no details, orally or written, of his weekly/monthly living expenses.

6. We retired to consider the appropriate penalty to impose for this very serious offence which involved the applicant standing to benefit to the extent of £3,500 of public money.

7. We took into account his professional position, namely a master builder of many years standing, a confident and competent businessman. He was not naive as he would have us believe. He had vast experience of business dealings and documentation which, we considered, put him above the status of 'an ordinary prudent individual."

10. In paragraph 8 the Chairman gives his reasons for the conclusion of the Bench that the costs sought by the Ministry were reasonable, and continues in paragraph 9:

"Taking all these factors into account and bearing in mind that generally costs follow the event, we found no grounds not to make an order against the applicant and place the costs of the prosecution on the Ministry. We tempered the amount of the proposed fine somewhat in the light of the financial burden imposed by the costs. We considered the total sum was a right and proper one in the circumstances and one which was within the ability of the applicant to pay, over a period of time, given the seriousness of the offence involving public money and the total amount of time spent on the case by MAFF."

11. Thirdly, we have an affidavit sworn by Miss Stelling, the court clerk who was advising the Bench on this occasion. She deposes in paragraphs 8 and 9 of her affidavit as follows:

"8. To the best of my recollection, Counsel for the applicant made no comment on the claim. In general mitigation he said the applicant had an annual gross income of £15,000. (I have a note to this effect). He gave no details at all of the applicant's living expenses and did not produce a statement of means.

9. In the course of his evidence in respect of the trial, the applicant said that he had owned the farm since 1989, that it was a hobby, and he was in fact a master builder. I have a note to this effect."

12. The relevant statutory provision governing the award of costs in the magistrates' court is section 18 of the Prosecution of Offences Act 1985 which so far as relevant provides:

"(1) Where --

(a) any person is convicted of an offence before a magistrates' court;

....

the court may make such order as to the costs to be paid by the accused to the prosecutor as it considers just and reasonable.

....

(3) The amount to be paid by the accused in pursuance of an order under this section shall be specified in the order.

(4) Where any person is convicted of an offence before a magistrates' court and --

(a) under the conviction the court orders payment of any sum as a fine, penalty, forfeiture or compensation; and

(b) the sum so ordered to be paid does not exceed £5;

the court shall not order the accused to pay any costs under this section unless in the particular circumstances of the case it considers it right to do so.

(5) Where any person under the age of eighteen is convicted of an offence before a magistrates' court, the amount of any costs ordered to be paid by the accused under this section shall not exceed the amount of any fine imposed on him."

13. That statutory provision has been supplemented by a Practice Direction (Crime: Costs ) given on 3 May 1991, and reported at [1991] 1 WLR 498 and (1991) 93 Cr App R 89. Relevant for present purposes are parts of Part VI:

"6.1 A magistrates' court .... may make an order for costs against a person convicted of an offence before it or in dealing with him in respect of certain orders as to sentence specified in regulation 14(3)...."

14. In paragraph 6.2 the effect of section 18(4) and (5) is reproduced. Paragraph 6.4 reads:

"An order should be made where the Court is satisfied that the offender or appellant has the means and the ability to pay.

6.5 The amount must be specified in the order by the Court."

15. It is noteworthy that under section 108(1) and (3)(b) of the Magistrates' Courts Act 1980 there is no appeal to the Crown Court against an order made by a magistrates' court that a defendant pay costs to a prosecutor. This is in contrast with the position in the Crown Court where an order for payment of costs to a prosecutor has been held to be a sentence within the meaning of section 50 of the Criminal Appeal Act 1968 and so the proper subject of an appeal to the Court of Appeal, Criminal Division: see R v Hayden [1975] 1 WLR 852 and (1975) 60 Cr App R 304, and the 1999 edition of Archbold, paragraph 7-120.

16. The ordering of defendants to pay costs to prosecutors has been the subject of consideration by the courts on a number of occasions over the years, and it is unnecessary to refer to all the relevant authorities. I take as the starting point R v Whalley (1972) 56 Cr App R 304, in which, at page 305 the court said:

"This Court takes the view that whenever a court is imposing a financial penalty, or making an order in regard to costs, it must have regard to the means of the individual against whom the order is going to be made. That does not necessarily mean that a very detailed examination of all his finances has to be entered into by the court. There is a form which has to be filled in for the purposes of the grant of legal aid which deals with all the man's finances in very considerable detail. It is not, as we think, necessary to send for that form or to go through all those details at the trial. In the ordinary case a court can make a reasonable assessment of the sort of sum that a man is able to pay ....

.... It would be quite wrong to impose a very small fine and a very heavy order for costs; the two must go in step."

In R v Hayden , to which reference has already been made, the main issue was whether a costs order could be the proper subject of an appeal to the Court of Appeal, Criminal Division. In the course of giving the judgment of the court the Lord Chief Justice did, however, say at pages 856 and 307:

"As a matter of principle it would be clearly wrong to penalise a man, that is to say increase the punishment suffered by a man, merely because he had taken the advantage of his constitutional right of trial by jury. It is noteworthy in the present case that that principle is explicitly recognised by the judge when he deals with the fine. He explicitly relates the fine to that which might have been imposed if the accused had been tried by the Magistrates' Court.

When one comes to the question of costs, again the award of costs should not be used as a means of punishing the defendant for having elected to go to trial. It would be quite foreign to the true practice of awarding costs to use them as an additional form of penalty. But, on the other hand, it is perfectly right to say of a man who has elected to go for trial that if the case is one in which the costs of the prosecution should fall on the defendant in the events which happen, then, by going to the Crown Court, he must inevitably suffer a higher financial penalty, if that is the right word, because he has chosen to go to the Court where the costs, for reasons which we all understand, are bound to be higher."

In R v Firmston (1984) 6 Cr App R(S) 189 the appellant, following trial in the Crown Court, had been absolutely discharged but ordered to pay up to £400 of the costs to the prosecutor. The Court of Appeal reduced the order for costs on the ground that it was out of step with the substantive penalty imposed. A similar approach is to be found in R v Nottingham Justices, Ex parte Fohmann (1987) 84 Cr App R 316. In that case the court reviewed a number of the leading authorities before concluding on page 319:

"The costs and fine should be kept in step and the order as made should be within the means of the person so ordered."

17. The same principle was acknowledged in R v Jones (1988) 10 Cr App R(S) 95 where, at page 96, Turner J, giving the judgment of the court, said:

"The two orders for fine and costs ought within reasonable limits to go step by step with each other."

18. A somewhat different approach was adopted in R v Boyle (1995) 16 Cr App R(S) 927, in which the court at page 928 distinguished R v Whalley , R v Firmston and R v Jones , but it did so on the ground that in the case before the court additional costs had been incurred because the appellant had sought trial by jury and so caused the prosecutor to incur increased costs. Reference may also be made to Cozens v Hobbs 1999 COD at page 24.

19. Against that background of authority there are as it seems to me a number of propositions which may be stated. They are these:

(1) An order to pay costs to the prosecutor should never exceed the sum which, having regard to the defendant's means and any other financial order imposed upon him, the defendant is able to pay and which it is reasonable to order the defendant to pay.

(2) Such an order should never exceed the sum which the prosecutor has actually and reasonably incurred.

(3) The purpose of such an order is to compensate the prosecutor and not to punish the defendant. Where the defendant has by his conduct put the prosecutor to avoidable expense he may, subject to his means, be ordered to pay some or all of that sum to the prosecutor. But he is not to be punished for exercising a constitutional right to defend himself. If it were otherwise, one would expect to find a right of appeal to the Crown Court under section 108 of the Magistrates' Courts Act. As it is, there is no right of appeal on the merits of such a costs order to the Crown Court, and a defendant's only right of recourse is on grounds of unlawfulness or excess of jurisdiction by case stated under section 111 of the 1980 Act or by way of a judicial review.

(4) While there is no requirement that any sum ordered by justices to be paid to a prosecutor by way of costs should stand in any arithmetical relationship to any fine imposed, the costs ordered to be paid should not in the ordinary way be grossly disproportionate to the fine. Justices should ordinarily begin by deciding on the appropriate fine to reflect the criminality of the defendant's offence, always bearing in mind his means and his ability to pay, and then consider what, if any, costs he should be ordered to pay to the prosecutor. If, when the costs sought by the prosecutor are added to the proposed fine, the total exceeds the sum which in the light of the defendant's means and all other relevant circumstances the defendant can reasonably be ordered to pay, it is preferable to achieve an acceptable total by reducing the sum of costs which the defendant is ordered to pay rather than by reducing the fine.

(5) It is for the defendant facing a financial penalty by way of fine or an order to pay costs to a prosecutor to disclose to magistrates such data relevant to his financial position as will enable justices to assess what he can reasonably afford to pay. In the absence of such disclosure justices may draw reasonable inferences as to the defendant's means from evidence they have heard and from all the circumstances of the case. I would draw attention to the proposition stated in the second volume of Dr Thomas' Current Sentencing Practice at paragraph J1-2G where it is stated:

"It is the obligation of the offender to put before the sentencer any information about his means which he wishes the sentencer to take into account in determining the amount of the fine. If he fails to do so, the sentencer is not obliged to make enquiries on his own initiative."

20. I would also draw attention to the authority cited in support of that proposition: R v Wright (unreported, 12.11.76). In the course of giving judgment in that case the Lord Chief Justice said:

"It is of course a fundamental principle of sentencing that financial obligations must be matched to the ability to pay, and there is an overriding consideration that financial obligations are to be subjected to that test. But that does not mean that the court has to set about an inquisitorial function and dig out all the information that exists about the appellant's means. The appellant knows what his means are and he is perfectly capable of putting them before the court on his own initiative. If, as happened here, the court is only given the rather meagre details of the appellant's means, then it is the appellant's fault".

(6) It is incumbent on any court which proposes to make any financial order against a defendant, whether by way of fine or costs, to give the defendant a fair opportunity to adduce any relevant financial information and make any appropriate submissions. If the court has it in mind to make any unusual or unconventional order potentially adverse to a defendant, it should alert the defendant and his advisers to that possibility.

21. On the facts of the present case I for my part very much doubt if the applicant shows any breach of propositions (1), (2) and (3). With regard to proposition (5), it was for the applicant to put forward relevant financial details to guide the decision of the justices. He no doubt knew that he faced a potential fine up to £5,000 on conviction and, as soon as the prosecutor made application for costs, he knew of the sum which he could be ordered to pay under that head. He had a full opportunity to adduce any information or make any submissions that he wished, and he was notably unforthcoming. He gave inaccurate details as to his income; he produced no accounts for his business; he gave no indication of the value of the farm or what he paid for it; he gave no indication of any sort as to his assets.

22. So far as proposition (6) is concerned, there was in my judgment nothing which could be calculated to surprise the defendant or catch him off his guard.

23. On behalf of the applicant Miss McHugh has shrewdly concentrated her criticism on proposition (4). She submits that a costs order four-and-a-half times greater than the fine imposed was disproportionate, and she submits that the justices may have considered what costs should be ordered before considering the fine. She bases that suggestion on the Chairman's statement:

"We tempered the amount of the proposed fine somewhat in the light of the financial burden imposed by the costs."

24. This is, I think, a case in which the justices could have structured their order differently, and had they done so it would have been very hard to attack. If, however, a fine of £1,000 or thereabouts reflected in the justices' considered judgment the criminality of this offence committed by the applicant, then I find it very hard to resist the conclusion that the costs order was disproportionate. It certainly exceeded grossly the amount of the fine which the justices imposed. On that ground, therefore, I feel compelled to hold that this application succeeds and would accordingly order that the justices' order for payment of costs be quashed and that the matter be remitted to the justices to reconsider what, if any, costs they should order the applicant to pay to the prosecutor.

MR JUSTICE OGNALL: I agree.

25. Application granted for costs out of central funds.

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