Case No: CO/3185/99
 
IN THE SUPREME COURT OF JUDICATURE
QUEENS BENCH DIVISION
DIVISIONAL COURT
CROWM OFFICE LIST
Royal Courts of Justice
Strand, London, WC2A 2LL

Tuesday 4 March 2000

B e f o r e :

LORD JUSTICE SCHIEMANN
MR. JUSTICE DOUGLAS BROWN
- - - - - - - - - - - - - - - - - - - - -

	KATHRYNE HAMILTON-JOHNSON		Appellant	
	- v-		
	R.S.P.C.A.	Respondent	

- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040,  Fax No:  0171 831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
MARTIN RUSSELL (instructed by Moss Beachley Mullem and Coleman W1 Appellant)
ROBERT DAVIES (instructed by Wansboroughs Northgate House Deviser, Witts for the Respondent)
- - - - - - - - - - - - - - - - - - - - -
Judgment
As Approved by the Court

Crown Copyright ©

Lord Justice Schiemann:

Before the court are an application to for permission to enter out of time an appeal by way of case stated from the Crown Court and, if that application be granted, the appeal itself. The appeal raises a point of some general importance and concerns a significant sum. The would be appellant is a lady who was acting in person and who suffers from ill-health of one sort or another which may have included mental ill-health. The extension of time causes no prejudice to the potential respondents. We are prepared to grant that extension of time and therefore go on to consider the appeal itself.

This concerns an order for costs made by the Crown Court on an appeal from a magistrates court. The issue of general importance is whether a Crown Court hearing an appeal from magistrates has jurisdiction to order an unsuccessful appellant defendant to pay to the prosecutor sums by way of costs which the magistrates had refused to award to the prosecutor. We consider that it does.

The magistrates had convicted the appellant of 19 separate offences under the Protection of Animals Act 1911 of causing unnecessary suffering to various animals. She was conditionally discharged for a period of two years and disqualified from keeping domestic animals for five years. The ownership of the animals specified in the charges was transferred to the respondents. She was ordered to pay £260 to the RSPCA at £5 per week. Although the case stated is not clear as to whether this sum represented costs or a fine it is common ground that it represented a contribution towards the costs of the prosecution. Anything else would be incompatible with the order for a conditional discharge.

The appeal was originally against conviction and sentence. However, on the day of the hearing of the appeal, the appeal against conviction was withdrawn. The matter proceeded, the case tells us, as an appeal against sentence and in respect of the orders transferring ownership of the animals and the disqualification. The appeal failed. It is noticeable that there was no express appeal against the costs order made by the magistrates.

Now comes the matter which has given rise to the present appeal. It appears from paragraph 4 of the case that the Crown Court Judge ordered the appellant to pay to the respondent £28,000 towards the respondents’ costs. This, as is obvious, represented a huge increase over the £250 which they thought appropriate. The case tells us that the basis of such an order was:
“a.   The costs of kennelling and caring for the said animals from the date of the date (sic) of the initial intervention by the respondents until the date of the appeal was £500 per week.
b.   The total cost therefore to the date of the appeal to the respondents for such kennelling and care was £22,500.
c.   The respondents’ legal costs were £6,000.
d.   There was no challenge or objections by the appellant (then represented by Counsel) to the nature or extent of the claim for costs.  A breakdown of the respondents’ costs was available for the appellant to inspect.
e.   Counsel for the appellant indicated that her house was on the market for sale in the sum of £160,000.  There was sufficient net equity in the property to meet the costs.  Counsel for the appellant stated at the appeal “When she (the appellant) sells her house she could pay the costs”.

The case in paragraph 9 poses the following question:-

“whether we  were wrong in law in making an order that the appellant should pay the respondents’ costs in the sum of £28,500 with payment to be made within six months of the date of the order.  Notwithstanding the assertions made by counsel then acting for the appellant, should we have made or caused to be made separate enquiries as to the value of the appellant’s house and her ability to pay the costs sought from the net proceeds of the sale.”

It is apparent that there is a discrepancy between the £28,000 mentioned in paragraph 4 of the case and the £28,500 mentioned in paragraph 9. We have not seen the order. For present purposes we shall assume that the figure given in paragraph 9 is correct. 

The position as to what the sum of £28,500 represents is a little obscure. It is clear that it contains an element for the cost of looking after the animals pending the conclusion of the prosecution. That latter cost was regarded as part of the costs of the case pursuant to a provision contained in s. 12 of the Protection of Animals Act. That provides in its second subsection

(2)   Where a person having charge of a vehicle or animal is apprehended by a Police Constable for an offence under this Act, it shall be lawful for that or any other constable to take charge of such vehicle or animal, and to deposit the same in some place of safe custody until the termination of the proceedings or until the Court shall direct such vehicle or animal to be delivered to the person charged or the owner, and the reasonable costs of such detention including the reasonable costs of veterinary treatment where such treatment is required, shall, in the event of a conviction in respect of the said animal, be recoverable from the owner summarily as a civil debt, or, where the owner himself is convicted, shall be part of the costs of the case.

It is accepted on behalf of the appellant that in principle the animal costs, if we may call them that, are potentially ones that can be the subject of a costs order as well as the legal costs. It is common ground that the sum awarded by the Crown Court is only justifiable if it was permissible to include costs incurred before the conclusion of the magistrates’ court proceedings. We  shall refer to these as the early costs. We have no evidence as to what proportion of the total costs  is constituted by the early costs. For present purposes the parties are content that we should assume it to have been one half.

Mr Martin Russell, who now appears for the appellant, takes no point as to the reasonableness of the amount of costs. The period of detention of the animals was a lengthy one – largely because the appellant for a variety of reasons requested and obtained a series of adjournments. He submits however that the Crown Court had no jurisdiction to award costs in respect of a period before the conclusion of the magistrates’ courts hearing. All the Crown Court can do, he submits, is to leave the Magistrates’ order as to costs undisturbed or, if the conviction is quashed in whole or in part, to quash or vary the order downwards.

In support of that submission he drew our attention to the fact that there is no right of appeal to the Crown Court given to either party in relation to a costs order by a magistrates’ court. The prosecution is not given any rights of appeal to the Crown Court at all. The defence is given only a limited right of appeal which does not include any right to appeal a costs order. For this proposition, which is not disputed by Mr Robert Davies who appears on behalf of the prosecution,  he relies on the Magistrates’ Courts Act 1980 section 108 which provides:
(1) “A person convicted by a magistrates’ court may appeal to the Crown Court - 
(a) if he pleads guilty, against his sentence;
(b) if he did not, against the conviction or sentence.
........................
(3) in this section “Sentence” includes any Order made on conviction by a Magistrate’s Court not being 
(a)..........
(b) an Order for the payment of costs.
……

He submits that it follows that the Crown Court has no jurisdiction to alter a magistrates’ court order in relation to early costs because they are not within the scope of the appeal; alternatively, if that be wrong, such jurisdiction should be exercised with particular care so as only to interfere with the magistrates order if this was manifestly wrong. We look at the jurisdiction submission first.

As regards that, Mr Davies drew our attention to two separate statutory provisions. The first of these was section 48 Supreme Court Act 1981 which provides:
(1)   The Crown Court may, in the course of hearing any appeal, correct any error or mistake in the Order or judgment incorporating the decision which is the subject of the appeal.
(2)    On the termination of the hearing of an appeal the Crown Court -
(a)	may confirm, reverse or vary any part of the decision appealed against including a determination not to impose a separate penalty in respect of an offence; or
(b)	may remit the matter with its opinion thereon to the authority whose decision is appealed against; or
(c)	may make such other order in the matter as the court thinks just, and by such order exercise any power which the said authority might have exercised.
(3)   Sub-section (2) has effect subject to any enactment relating to any such appeal which expressly limits or restricts the powers of the Court on the appeal.
(4)    ..............If the appeal is against a conviction or a sentence, the preceding provisions of this section shall be construed as including power to award any punishment, whether more or less severe than that awarded by the Magistrate’s Court whose decision is appealed against, if that is a punishment which that Magistrate’s Court might have awarded.
(5)  This section applies whether or not the appeal is against the whole of the decision.
(6)   In this section “Sentence” includes any Order made by a Court in dealing with an offender.........

The second provision to which he drew our attention was the Prosecution of Offences Act 1985 Section 18(1) which provides:
(1)   Where -
(a)  any person is convicted of an offence before a Magistrates’ Court;
(b)   the Crown Court dismisses an appeal against such a conviction or against the sentence imposed on that conviction; or
(c)   any person is convicted of an offence before the Crown Court;

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

In our judgment, the provisions the 1985 Act are intended to have precedence over those in s.48 of the Supreme Court Act 1981. That follows both from the general principle of statutory interpretation that the particular overrides the general – see Halsbury’s Laws (4th Ed.) Title Statutes paragraph 1301 – and from s.48(3) of the 1981 Act. It is therefore appropriate to consider the 1985 Act first.

It is quite clear that, where a person convicted of an offence by a magistrates'  court appeals successfully against either conviction or sentence the Crown Court has power to make a defendant’s costs order in his favour – 1985 Act s.16(3). Such an order is generally of such an amount as the court considers reasonably sufficient to compensate him for any expenses properly incurred by him in “the proceedings” – 1985 Act s.16(6). It is equally clear that the Crown Court can make an order for the payment out of central funds to the prosecutor of expenses properly incurred in “the proceedings” – 1985 Act s.17(1). In either case, the expression “the proceedings” includes proceedings in the court below – 1985 Act s. 21(1).

By contrast with sections 16 and 17 which deal with costs to be paid out of central funds, it is noticeable that s.18, which deals with costs payable by the defence to the prosecution,  makes no reference to “the proceedings” and therefore s.21 has no application to section 18. 

S.18, one imagines, may well have been drafted without the provisions as to animal costs in mind. We think it right to construe it in relation to what one would normally think of as legal costs. Section 18 is dealing with 3 separate situations in relation to each of which it empowers the relevant court to make such costs order as it thinks just– proceedings before a magistrates’ court, proceedings in the Crown Court on appeal from a magistrates’ court and proceedings in the Crown Court on indictment. 

So far as the first of these situations is concerned, no question of any order by the Crown Court can arise. 

If one considers the last situation, the magistrates’ court which committed a defendant will not have made any order as to costs. We  see no reason to suppose that Parliament did not intend to give the Crown Court jurisdiction to order that the prosecution costs of committal should be paid by the unsuccessful defendant. Since the conclusion of argument in the present case we have discovered a case in the Court of Appeal which supports this view. It is Associated Octel Ltd [1997] 1 Cr. App.R.(s.) 435. The case is cited in the current editions both of Archbold p.755 and Blackstone p. 1718. The defendants there were indicted for failure to ensure the safety at work of their employees contrary to section 2 of the Health and Safety at Work Act 1974. The Court of Appeal, upholding the Crown Court, held that “the costs of the prosecution, for the purpose of s.18(1) of the 1985 Act, may include the costs of the prosecuting authority in carrying out investigations with a view to the prosecution of a defendant where a prosecution results and the defendant is convicted”. 

What then about the second situation where the Crown Court is considering an appeal against conviction or sentence? If we are right as to the position where the Crown Court is considering a case on committal does the same apply where a Crown Court has dismissed an appeal against conviction or sentence? As a pure matter of construction of the meaning of the words in s.18(1), the meaning of the concluding words of that subsection can not alter depending on whether the applicable preceding words are to be found in subparagraph (a) (b) or (c). So the words are in our view wide enough to give the Crown Court jurisdiction to make an order as to the costs below.

But even if we are wrong as to that and the 1985 Act does not give the Crown Court jurisdiction to do that which it did, we consider that the 1981 Act gave it jurisdiction. The words of s.48(2) are certainly wide enough. It has not been argued that there is any enactment which expressly limits or restricts the Crown Court’s powers to make such an order. In consequence s.48(3) of the 1981 Act has no application. S. 48(2) of the 1981 Act provides that the Crown Court has power to vary “any part of the decision appealed against”. The editors of Blackstone’s Criminal Practice are in our view right in the opinion which they express at paragraph D25.6 
The powers of the Crown Court when disposing of an appeal are set out in the Supreme Court Act 1981, s.48. Those powers are extensive. It may confirm, reverse or vary any part of the decision appealed against …. it may make such other order in the matter as it thinks just (e.g., in the case of a successful appeal, an order that the costs of the defence in the magistrates’ court be paid by the prosecution …). Varying the decision appealed against includes increasing the sentence imposed by the magistrates even in a case where the appeal is only against conviction …   
…. The Supreme Court Act 1981, s.48 enables the Crown Court to vary (e.g. by increasing sentence) any part of the magistrates’ decision, even if the appellant has chosen not to appeal against that part.

This view of the law is one with which the editors of Archbold Criminal Pleadings Evidence and Practice at 2-179 do not appear to disagree.

Mr Russell accepts that there are no words in the 1985 Act or any other statute to which he drew our attention which expressly deprive the Crown Court of jurisdiction to make any order as to the costs below. Nor in our judgment it a necessary implication in order to make sense of any Parliamentary provision to which our attention has been drawn. Parliament can perfectly well have taken the view that, whilst it would not permit either side to appeal on costs alone, if an appeal in relation to a permitted matter was made then either side could, as part of the submissions consequent upon the decision of that appeal, be permitted to raise any submissions as to costs below.

The fact that the Crown Court has power to increase sentence when there has only been an unsuccessful appeal against conviction indicates that there are no policy reasons which should lead one so to construe the 1981 or 1985 Act as to prevent the Crown Court, when there has been an unsuccessful appeal against conviction and sentence, from increasing the amount of the costs order made by the magistrates. 

We therefore consider that the Crown Court had jurisdiction to do that which it did.

However, assuming that the Crown Court had jurisdiction to make an order in relation to costs incurred before the conclusion of the magistrates’ court proceedings, did it err in law substantively or procedurally in making such an order?  That is the only type of error with which this court exercising this jurisdiction can interfere. We  accept immediately that where a magistrates court has considered the question of costs, rejected a request by the successful prosecution for substantial costs, and made an order for the payment of a total of £260 payable at £5 a week, it is at first sight highly surprising to find the Crown Court in effect ordering about £14,000 in respect of the same period. But was it unlawful?
Mr Russell submits that it was. He does so on two grounds.

The first ground is that he submits that the scale of costs is disproportionate to a case where no other penalty had been imposed other than a conditional discharge. This point is not a forceful one in the context of the present case. Proceedings were necessary in order to remove these animals from a position where they were being caused unnecessary suffering. The animal costs had been incurred by the prosecutor and reasonably incurred. They were so large because of the number of animals which the appellant had treated badly and the number of adjournments which she had sought for reasons which had nothing to do with the prosecutor. As to the legal costs, it appears from the affidavit of Mr Jenkins and is not disputed that the hearing before the magistrates was contested and took two days. There was then an appeal against  both conviction and sentence and the conviction appeal was not withdrawn until the day of the hearing. In those circumstances a figure of £6,000 for the two of them does not appear manifestly excessive and the contrary has not been suggested. 

The second ground is that Mr Russell submits that the Crown Court was in error in not investigating the appellants means more carefully than it did. He submits that, whilst it is true that the Crown Court was informed that there was enough net equity in the house to pay the sum imposed and that when the appellant sold her house she could pay the costs, the judge was under a duty to inquire further as to what other debts the lady had and what her income was and that he was peculiarly under such a duty in circumstances where the Magistrates had made an order at £5 a week.

So far as we can see there is no reason to criticise the Crown Court.  The prosecution had throughout made it clear that they were seeking the totality of the costs in relation to the keeping of these animals – see Mr Jenkins’ afidavit of 11 February 2000. In the light of the attitude of Counsel in front of them they were entitled to take the view that further investigation of the means of the appellant was not called for. If it was the case that finding the money to pay would represent a problem it was the job of counsel to draw this to the court’s attention. We note that the applicant has, as part of the material supporting her request for an extension of time within which to lodge her appeal, exhibited to the court a pre-sentence report (relating to another offence) dated 28.10.1999. It was lodged to support the assertion that she had “personality difficulties”. So it does which is why we permitted the extension of time. 

Though we think it legally irrelevant we have considered whether there is any evidence before us that she is unable to pay the costs order. There is not save in so far as this may be deduced from the magistrates’ order. Neither her recent statement nor the pre-sentence report evidence lack of means. Paragraph 7 of the latter ends with the words “When she eventually sells her house she should be able to pay off her debts and have resources to buy a further property.” 

We therefore answer the Crown Court’s questions in the negative and dismiss this appeal. We add two matters by way of guidance.
1. In the usual case where the issue is whether the magistrates order in respect of costs should be modified after an unsuccessful appeal the Crown Court should hesitate to do so. In the usual case the magistrates will be far better placed than the Crown Court judge to decide how much of the costs of legal proceedings before them the prosecution should recover. They know, especially in a long case, who wasted time, called unnecessary witnesses and so on. 
2.  If a prosecutor respondent proposes to ask the Crown Court to vary in his favour a costs order made in the court below he should set that out in detail and in writing to the appellant well before the case is listed to be heard so that the appellant’s mind is directed to the possible consequences of any decision  by him to pursue an appeal. If that step is omitted we would, bearing in mind that the prosecutor has no free-standing right to appeal in relation to costs, generally expect the Crown Court not to interfere with the costs order made in the court below.