England and Wales High Court (Administrative Court) Decisions

R v. Canterbury Crown Court Ex p. Regentford Ltd [2000] EWHC Admin 440 (21st December, 2000)

Case No: CO/1868/2000

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT AND

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Thursday 21 December 2000

LORD JUSTICE WALLER:

Introduction

1. The applicant was prosecuted under the Fire Precautions Act 1971 for alleged contraventions of requirements of the Fire Certificate on a six-count indictment. The applicant elected trial by jury at the Crown Court. At the trial the applicant demonstrated that the occupier of the premises at the material time were certain lessees of the applicant and thus not the applicant. In the result the case was withdrawn from the jury and verdicts of not guilty were entered. His Honour Judge Rooke QC refused to make a defendants' costs order on the ground that the applicant company had failed to notify the change in occupancy, and never hinted in their defence statement, filed some months prior to the trial, that they were not the occupier of the relevant premises.

2. This is an application to review that decision. Two points arise. First there is a jurisdiction point. It is accepted that prior to the coming into force of the Human Rights Act 1998 there was binding House of Lords authority that a decision refusing to award a defendant his costs following a trial on indictment cannot be the subject of review of the Divisional court by virtue of section 29(3) of the Supreme Court Act 1981. As stated by Lord Bridge of Harwich with whom the rest of the Judicial Committee agreed in In re Sampson [1987] 1 WLR 194 at 197:-

"An order that the prosecutor pay the whole or any part of the costs of an acquitted defendant under section 4(1)(b) is not appealable, nor is any decision under section 3(1) either to make or to refrain from making an order for payment of costs out of central funds in favour of the prosecution or the defence. The common characteristic of all decisions made by the Crown Court under these provisions is that the court is exercising a discretion in the light of what it has learned in the course of the trial as to the nature of the case, both for the prosecution and the defence, and in the light of the conduct and the outcome of the trial itself: see the guidance given by the Practice Direction (Costs: Acquittal of Defendant) [1981] 1 W.L.R. 1383. It follows that all such decisions are so intimately bound up with the trial process that they must be treated as an integral part of it and thus must be considered as made in the exercise of the Crown Court's jurisdiction "relating to trial on indictment" and accordingly are not subject to judicial review."

3. What is submitted is that following the Human Rights Act section 29(3) must be read so as to allow for judicial review of any refusal to allow a defendant to have his costs from central funds. The argument in a nutshell is that a refusal to allow a defendant his costs on acquittal may impugn a defendant's innocence. If it does, that would infringe Article 6 of the Convention. The argument then is that it is incompatible with the Convention that there should be no remedy for a breach of Article 6.

4. The second point that arises is , if Judge Rooke's decision is capable of review by this court, whether his decision was unreasonable and/or infringed Article 6 in some way.

Factual background

5. The applicant was the freehold owner of certain premises called the "Warren Court Hotel" situated at 21-23 Arthur Road, Cliftonville, Margate, Kent. The Kent County Council Fire Authority issued a Fire Certificate under the Fire Precautions Act 1971 on 23 March 1994 in relation to the above premises. That certificate described the major occupancy as "Hotel" and further described the occupier at issue of the Fire Certificate as the applicant. The Fire Certificate contained a schedule 2 which imposed certain requirements on the occupier. By paragraph 25 of that schedule it was provided that inter alia:-

"The owner or his agent is to ensure that all changes in occupancy are notified, in writing, to the County Fire Officer."

6. The certificate also has a schedule for showing changes in occupancy. That schedule showed three different changes in occupants. The changes showed individuals as becoming the occupiers, the first on 22 August 1996, then another individual on 13 June 1997 and finally a third individual on 12 February 1998. A starred note at the bottom of the schedule indicates that the signature of the individual might be a person authorised to act on behalf of the occupier, but it is accepted, and common ground indeed, that these individuals were not in fact occupiers of the premises.

7. The applicant, as indicated in a statement made by Mr Markovic of 24 May 2000, decided to let the premises to different entities. On 7 October 1994 the applicant entered into an agreement with Delta County Hotels Ltd. It follows from what I have already said that no change of occupier was recorded or notified as of 7 October 1994 so far as the Fire Certificate was concerned. When business arrangements with that hotel company came to an end, the applicant granted a new lease of the hotel to Warren Court Hotel Ltd by a document dated 24 June 1997. Once again no record of that change of occupancy was recorded in the Fire Certificate.

8. An inspection of the premises took place on 10 November 1998 by the Kent and Medway Towns Fire Authority. A representative of the applicant company, a Mr Ratnasingham, attended the inspection and a statement from him confirmed as follows. First, he said that he worked for the applicant company "who are the freeholders of the Warren Court Hotel (WCH). The manager of WCH is John Dabrowski, who is today at a funeral in Scotland. His position has been temporarily covered by Mr Tim Bartlett, who has been trained in respect of the fire precautions at the WCH.. . . " The statement then continued in a vein which seeks to show that all reasonable diligence had been used by the owners of the hotel in connection with their fire alarm system and their fire precautions. A natural reading of that statement would not indicate that the applicant had nothing to do with the relevant premises. Indeed, a fair reading of the statement would indicate that they were the company responsible for the fire alarm and fire precautions at the same.

9. A prosecution followed and a plea and directions hearing was held on 30 July 1999 at Canterbury Crown Court. The issues in the case were defined as "breach of fire certificate". In answer to the questions "is the prosecution intending to serve any further evidence?" the answer was "yes"; "if Yes, what area(s) will it cover?" and the answer was "identity of correct defendant"

10. We are told that it was only thereafter that a defence statement was provided. That statement appears at p.33j of the bundle which commences with the paragraph:-

"The Defendant avers that it took reasonable precautions and exercised all due diligence to avoid the commission of any offence."

It then continued by then relying on evidence of the due diligence as being:-

"Regular visits to the hotel by a Director of the Defendant Company."

It further relies on certain other matters including:-

"The Defendant had arranged for a waking watch to be set up during the time that the fire alarm was not working."

No indication was given that a point might be taken that the applicant company was not the occupier of the premises having regard to the leases entered into.

11. The matter then came on for trial and it seems that counsel for the applicant company, prior to the trial actually commencing, indicated that there might be a point on the identity of the correct defendant, but, as we understand it, copies of the leases were not produced at that stage.

12. At the close of the case for the crown a submission of no case to answer based upon the question of occupancy was made but the judge at that stage ruled against the defence. The judge evidently indicated at that stage that there might be certain counts on which the jury might return "not guilty" verdicts based upon the substantive defence raised which was the defence of reasonable diligence having been exercised. Evidence was then led on behalf of the defence of the leasing. That led the judge to indicate to the jury that on the evidence before them he could not allow them to convict due to the incorrect identity of the defendant. The point being that section 7(4) of the Act only permitted prosecution of an occupier of premises for which a Fire Certificate was in force. In the result the jury returned not guilty verdicts on all six counts at that stage.

13. An application was made on behalf of the applicant company for a defendant's costs order. Reference was made to the Practice Direction (Costs in Criminal Proceedings) 93 Cr.App.R 89. That Practice Direction refers to the powers enabling the court to award costs in criminal proceedings and in relation to the Crown Court by paragraph 2.2 provides as follows:-

"Where a person is not tried for an offence for which he has been indicted or committed for trial or has been acquitted on any count in the indictment, the court may make a defendant's costs order in his favour. Such an order should normally be made whether or not an order for costs inter partes is made, unless there are positive reasons for not doing so. Examples of such reasons are:

(a) the defendant's own conduct has brought suspicion on himself and has misled the prosecution into thinking that the case against him is stronger than it is;

(b) there is ample evidence to support a conviction but the defendant is acquitted on a technicality which has no merit."

(The above Practice Direction was amended by Practice Direction (Costs in Criminal Proceedings) (No 2) [2000] 1 Cr.App.R. 60 which so far as relevant took out (b) above as an example of reasons for refusing a defendant his/her costs).

14. In any event the judge ruled in the following terms:-

". . . . it seems to me to fall squarely in the surviving part of Practice Direction 2.2.

There has been here a complete failure by the defendant company to have notified the change in occupancy in writing, as required by the regulations . . . . .

That, taken together with the late emergence and certainly never even hinted at on the defence statement filed on 17th September any suggestion that there was another and proper limited company which ought to be the target, whatever may have been said behind the scenes and in the robing room, nothing emerged at that stage, when it could have done, which, had it done so, would no doubt have resulted in the Crown facing up to reality and ceasing the prosecution.

I am not disposed to make a defendant's costs order by any manner of means."

15. As will be seen we do not in fact believe that any challenge to the judge's decision would succeed even if it were reviewable, but it is right to deal with the jurisdiction question first.

Jurisdiction

16. The argument of Mr Salter on jurisdiction was as follows. He submitted that to deprive a successful defendant of his costs may often, and in this case (he would submit), did impugn the innocence of the defendant. That he submitted would infringe Article 6(2) of the Convention. When construing legislation which might affect the question whether the defendant has a remedy for possible breaches of Convention rights, compliance with section 3 of the Human Rights Act requires the court, if possible, to construe that legislation so as to provide for that remedy.

17. His submission then was that if the authorities are examined from Ex parte Meredith [1973] 1 WLR 435 through Smalley v Warwick Crown Court (1985) 80 Cr.App.R. 205, In re Sampson [1987] 1 WLR 194 and In re Ashton [1993] 2 WLR 846, albeit he had to accept the words used by Lord Bridge in relation to costs were as already quoted, the common theme is that judicial review is to be refused in those cases where it is unnecessary to provide a remedy by that means. Thus there will be instances where if the decision taken is one which the Crown would wish to challenge e.g. dismissal for abuse of process, the Crown should not have a remedy because as prosecutors that is how it should be; or if the decision is one which the defence would wish to challenge, the defence will have the opportunity to make that challenge on appeal to the Court of Appeal Criminal Division, again abuse of process is an example.

18. He submits that if a defendant is deprived of a costs order after acquittal, that is a clear example of a situation in which the defendant should have a remedy, and, where he has none unless he can get the decision reviewed by judicial review. He furthermore argues that it would be possible (even if difficult) to construe the words "relating to trial on indictment" as not applying to the decision of the judge after the trial is complete and that thus that possibility is one the court is now obliged to follow because of section 3 of the Human Rights Act.

19. I have some sympathy with Mr Salter's argument to the extent that it is not as it seems to me altogether satisfactory that a defendant who obtains no order for costs or for that matter had an order for costs made against him after acquittal has no remedy even if the judge was "plainly wrong". Furthermore, if one imagines for a moment that a judge has clearly impugned the innocence of a defendant after acquittal by a jury, the order made by the judge would have infringed a Convention right (see Sekanina v Austria 17 EHRR 21 in particular paragraph 30), and there would apparently be no remedy. It is true that Article 13 has not been incorporated into English law, but not to provide a remedy would seem to run the risk of rendering the United Kingdom in breach of its Treaty obligations, something which the English courts should strive to avoid.

20. However, the difficulty with Mr Salter's argument is to my mind as follows. Section 29(3) has been construed by the House of Lords in the way it has. The only route available to Mr Salter to persuade this court that it can refuse to follow those decisions is via section 3 of the Human Rights Act. Section 3 provides as follows:-

"Interpretation of legislation

(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

21. Accordingly on the wording of the section the Convention right in relation to which section 29(3) is incompatible when read in a particular way must be identified. Section 29(3) is concerned with judicial review, and there is no Convention right to have decisions reviewed. It does not seem to me permissible to argue that because some of the decisions that are suggested should be reviewable might involve breaches of the Convention and some might not, that therefore section 29(3) must be read so as to allow for review of all decisions. This conclusion seems to me to be supported by section 9 of the Act which provides as follows:-

"Judicial acts

(1) Proceedings under section 7(1)(a) in respect of a judicial act may be brought only -

(a) by exercising a right of appeal.

(b) on an application (in Scotland a petition) for judicial review; or

(c) in such other forum as may be prescribed by rules.

(2) That does not affect any rule of law which prevents a court from being the subject of judicial review.

22. In my view the interpretation previously placed on section 29(3) cannot be said to be incompatible with a Convention right. All that can be said is that in some cases it may be that breach of a Convention right by a trial judge may not be capable of review. That does not bring about a further independent breach of a Convention right. Section 3 does not thus compel the court to place an interpretation on section 29(3) contrary to that already placed on it by previous decisions.

Decision of the Judge

23. Furthermore, it would not seem to me arguable that the judge's decision was plainly wrong or Wednesbury unreasonable. If the applicant had complied with the terms of the Fire Certificate when the applicant ceased to be the occupier, the applicant would never have been charged. Once charged, if the applicant had produced the leases and made the matter clear in its defence statement, the Crown would have dropped the charges and pursued the correct defendant. The judge was simply saying that an expensive jury trial could have been saved if the defence had taken the point on occupier earlier, and that there was absolutely no reason not to do so if it was a point on which they wished to rely. Even if the prosecution must bear some responsibility for failing to identify the correct occupier, that was a factor which was reflected in the fact they had to pay their own costs. But the judge must have asked rhetorically, (and in my view correctly) why should the public purse be visited with the costs of the defendants who could have taken a point at a very early stage and saved all that expense?

24. In my view there was no breach of a Convention right in refusing the applicant company their costs and it could not be suggested that the judge's order was unreasonable.

25. I would dismiss this application.

SIR EDWIN JOWITT:

26. I agree.