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Cite as: [2000] EWHC Admin 403

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DPP v. Tristian West [2000] EWHC Admin 403 (17th October, 2000)

Case No: CO/2276/2000

IN THE SUPREME COURT OF JUDICATURE
ADMINISTRATIVE COURT
DIVISIONAL COURT

Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 17 October 2000

B e f o r e :
LORD JUSTICE PILL
and
MR JUSTICE BELL

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	Director of Public Prosecutions	Appellant
	- v -
	Tristian West	Respondent

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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Mr John Riley (instructed by the CPS, Buckinghamshire Branch) appeared for the Appellant
The Respondent was not represented
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Judgment
As Approved by the Court
Crown Copyright

Pill LJ:
1. This is a prosecutor's appeal by way of case stated against a decision of the Buckinghamshire Justices, sitting at Aylesbury, on 28 March 2000. The Justices made an order under Regulation 3 of the Costs in Criminal Cases (General) Regulations 1986 that the Crown Prosecution Service ("the Service") should pay costs of £553.23 to Tristian West the Respondent to this appeal. He has not appeared at the hearing.
2. On 3 November 1999, an information was laid on behalf of the Thames Valley Police against the Respondent that he had on 11 July 1999 used a motor vehicle on a road without insurance, contrary to section 143(2) of the Road Traffic Act 1988. On 19 January 2000, the Respondent pleaded guilty to the information at the Aylesbury Magistrates Court. The case was adjourned to enable the Repondent to argue that there were special reasons to justify his driving licence not being endorsed.
3. By virtue of section 3(2)(a) of the Prosecution of Offences Act 1985 ("the 1985 Act"), it was the duty of the Director of Public Prosecutions ("the appellant") the take over the conduct of the proceedings. He is the head of the Crown Prosecution Service. The adjourned hearing was fixed for 15 February 2000. The Service decided that it was necessary to call a witness at that hearing and the Administrative Support Unit of the Thames Valley Police were requested to inform the witness that she was required to attend the Aylesbury Magistrates' Court on 1400 hrs on that day. Unfortunately and erroneously, the witness was told by the Unit to attend, and did attend, the High Wycombe Magistrates' Court instead of the court at Aylesbury.
4. The Service requested an adjournment of the case because the witness was not present. The application was opposed on behalf of the Respondent and at some stage, it is not clear whether before or after the Justices' decision, the Respondent's solicitor stated that application might be made against the prosecutor for the costs thrown away. What is clear is that at no stage did the Service's representative tell the Justices that in the view of the Service the Justices had no power to order costs against the Service. Had the Justices been aware of the stance taken, it might have influenced their decision whether to adjourn. The Respondent had incurred costs in appearing and obtaining legal representation for that day.
5. The Justices granted the adjournment and the special reasons hearing was conducted on 28 March 2000. Having heard evidence, the Justices concluded that there were special reasons for not ordering endorsement of the respondent's driving licence. They made an order of absolute discharge. The Justices then made the costs order, in relation to the abortive hearing on 15 February, which the appellant seeks to upset.
6. The duty of the Director under section 3(2)(a) of the 1985 Act is, insofar as is material, "to take over the conduct of all criminal proceedings ... instituted on behalf of a police force ...". By virtue of section 19 of the Act, the Lord Chancellor may by regulations make provision empowering magistrates' courts, in any case where the Court is satisfied that one party to criminal proceedings has incurred costs as 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. Regulation 3(1) of the Costs in Criminal Cases (General) Regulation 1986, made pursuant to section 19(1), provides:
"Subject to the provisions of this Regulation, where at any time during criminal proceedings:
(a) a Magistrates Court ...
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."
7. The Justices reasoning was as follows:
"We were of the opinion that:
(a) the Respondent was justified in seeking payment for his expenses of the frustrated attendance on the 15th Day of February 2000. He had properly pleaded guilty to an absolute offence but our decisions to find special reasons and to discharge him absolutely demonstrated that he had substantial and important arguments to put to the Court. It was reasonable for him to instruct a solicitor before the case first came to Court. The Respondent had to bear the expense of appearances by his solicitor on the 19th day of January, 2000 and the 28th day of March, 2000, in addition to the expenses of preparation. The Respondent had to travel from Hereford to Aylesbury for Court appearances on three occasions. Leaving aside the cost of the wasted appearance of the 15th day of February, 2000, the Respondent clearly had already paid, or was required to pay, a significant sum in legal fees. If he were obliged to pay for the entirely wasted attendance and representation on the 15th day of February, 2000, as well, he would be unjustly penalised.
(b) Because the Respondent has been convicted of the offence, he was not eligible to receive costs from Central Funds under Section 16 of the Prosecution of Offences Act, 1985. We also had no power to award costs against Thames Valley Police, by whom the error giving rise to the unnecessary costs was committed. This was because rule 3 of the Costs in Criminal Cases (General) Regulations, 1986, enabled us only to award costs for unnecessary of improper acts or omissions against parties to the proceedings. The police ceased to be a party to the proceedings when the Crown Prosecution Service took over the prosecution of the case in pursuance of Section 3 of the Prosecution of Offences Act, 1985, and the Prosecution of Offences (Specified Proceedings) Order 1985, as amended. If an order for the Respondent's costs were to be made under Regulation 3 of the Costs in Criminal Cases (General) Regulations, 1985, it would have to be made against the other party, the Crown Prosecution Service. We could not accept the contention by the prosecutor that the Respondent's costs should depend on an application for compensation to the Police Complaints Department. The use of Section 19 of the Prosecution of Offence Act, 1985, to reimburse the Respondent was both prompt and straightforward.
(c) Once the Crown Prosecution Service had become a party to the proceedings, any steps taken thereafter by the Police, such as notifying witnesses of attendance requirements, were taken to assist the Crown Prosecution Service and were taken on behalf of the Crown Prosecution Service. Section 19 of the Prosecution of Offences Act, 1985, provides that where during the course of criminal proceedings the Magistrates' Court 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 regulations may empower the Justices to make an order as to the payment of those costs.
(d) The misdirection of the witness was an unnecessary act. It was clearly accidental and unintended but could have been avoided by greater care on the part of the person giving the notice and the employment of a system which required checking of the accuracy of such notices. In the context of costs for the unnecessary act, the Crown Prosecution Service is accountable for the actions for the Police as its agent. It must remain a matter for the Crown Prosecution Service and the Police as to whether any financial accommodation is subsequently reached between them.
(e) Once the principle has been established that the Crown Prosecution Service could be ordered to pay for the unnecessary costs occasioned by the Police, it was appropriate for us to determine the amount of costs to be ordered. The costs sought by the Respondent related to sums he had been required to pay to his solicitor for his services on the 15th day of February, 2000, and for travel to and from Court on that day. The sums identified by the Respondent appeared to be reasonable in regard to his travel and in line with local charges for solicitors' services on a private client basis. There appeared to us to be no reason for not ordering reimbursement of the Respondent for all the expenses he had been required to pay for the appearance on the 15th day of February, 2000."
8. The questions for the opinion of this Court are:
(i) whether we had the power to make a Costs Order against the Crown Prosecution Service, under Regulation 3 of the Costs in Criminal Cases (General) Regulations, 1986, in the circumstances of this case; and
(ii) if so, was the making of such an Order a reasonable exercise of our discretion; and
(iii) if so, was the Order as to quantum a reasonable exercise of our discretion.
I can deal with the second and third questions briefly. If the Justices had power to make the order, it was in my view a reasonable exercise of that power in the circumstances. The error made was a simple one but a basic one. The fact that the hearing could not take place was a direct result of the error. The Justices were entitled to hold that the failure to direct the witness to the correct court was an unnecessary omission within the meaning of Regulation 3. As to the third question, the Service has provided no material whatsoever to support the submission that the amount ordered was one which could not reasonably be ordered in the circumstances.
9. The first question requires more detailed treatment. It is common ground that the Justices were correct to conclude that the Respondent was not eligible to receive costs from Central Funds and that there was no power to award costs against the Thames Valley Police, who were not party to the proceedings. The argument that the costs of 15 February should not fall upon the Respondent is a strong one; in proceedings following his plea of guilty he was the successful party. The responsibility for the wasted hearing was not his.
10. The present situation may not often arise. An acquitted defendant may be awarded costs from Central Funds and where there would otherwise be an order for costs against a defendant, allowance may be made, in calculating the appropriate figure, for costs the incurring of which was not his fault.
11. On behalf of the applicant, Mr Riley submits that the error was that of the Police and not the Service. They were separate and distinct organisations. The Service is not accountable for actions of the Police and the Police do not act on behalf of the Service. The Police are not the agents of the Service which has no power to compel the Police to do any act or act in any way. The Service has no recourse against the Police when they fail to do something the Service has requested them to do.
12. The Service submit that they have no supervisory role in or any capacity to supervise the process of warning witnesses for court attendance. That is the function of the Administrative Support Unit of the Police, which is not accountable to the Service. The 1985 Act did not alter, amend or make provision for the relationship between the body which investigates offences and warns witnesses for court and the body which conducts criminal proceedings in court. The function of the Service is limited to the presentation of the case in court. Mr Riley was inclined to accept that there was a gap in the law which might cause injustice to a defendant in circumstances such as the present. To fill the gap would however involve a constitutional change affecting the relationship of the Service with Police Forces and should be resolved, if at all, by Parliament.
13. I regard the issue primarily as one of statutory construction. If the Justices were empowered by the Statute and Regulations to make the order, that power should not be defeated by the absence of a contractual relationship between the Service and the Police which gives one remedies in contract against the other. The fact that for historical reasons, or for administrative convenience, the Police do work for the Service for which they receive no remuneration, should not influence the construction of the Statute and Regulations. Moreover, while I would not entirely put aside my own knowledge and what counsel has told us of the formal relationship, or the lack of formal relationship, between the Service and the Police, there was no material before the magistrates and there is none before this Court to establish what the relationship is between the two bodies. Nor does the possibility of compensation being ordered by the Police Complaints Authority affect the outcome.
14. In my judgment, the "conduct of all criminal proceedings" in section 3(2)(a) of the 1985 Act includes the function of securing the attendance of witnesses at court. I well understand that it makes good sense to make arrangements such that the function is not performed by members of the Service but by another body which has better resources to perform it. However, if arrangements are made by which that function is performed by another, the relevant act or omission of that other is performed "on behalf of" the Service within the meaning of that expression in section 19 of the 1985 Act and Regulation 3 of the 1986 Regulations. If, as I think, securing the attendance of witnesses is a part of "the conduct of proceedings", I see no escape from a finding that a police unit performing that function is acting on behalf of the Service. To find otherwise would be to distort the meaning of those words. The failure was that of the police unit and not of the witness. The consequences of default by a witness do not arise for consideration in this case.
15. I reach that conclusion without reference to section 3 of the Human Rights Act 1998 which requires that legislation be read and given effect, so far as it is possible to do so, in a way which is compatible with rights under the European Convention on Human Rights. We have not been addressed as to whether a fair hearing under Article 6 of the Convention requires rules as to the award of costs not to operate in an arbitrary fashion. I would regard a rule which, for historical or administrative reasons, requires the expression "on behalf of" to be given other than its ordinary meaning , to be arbitrary. The provisions of section 3(1) of the Human Rights Act 1998 encourage me to construe the expression "conduct of all proceedings" and the expression "on behalf of", in accordance with their ordinary meaning and without regard to the administrative matters stressed by Mr Riley.
16. In my judgment the Justices had power to make a costs order against the Crown Prosecution Service under Regulation 3 and having answered all three questions in the Respondent's favour, I would dismiss this appeal.
Bell J:
17. I agree.