England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(CROWN OFFICE LIST)

		Royal Courts of Justice Strand London WC2
		6th June 2000

1. MR JUSTICE MUNBY: In this matter Mr Glyn Ross Samuel moves on behalf of the Chief Constable of the West Midlands Police, pursuant to leave granted on 3 August 1999 by Moses J, for judicial review of the decision of HHJ Cole sitting with four licensing justices at Coventry Crown Court on 20 April 1999, ordering the applicant to pay the costs of the second respondent, Mr David Tubman, on allowing his appeal against the revocation of his on-licence for The White Bear Public House by Coventry Licensing Justices on 9 October 1998.
2. Put shortly, the grounds of the application are that the judge in the Crown Court was wrong to make an order for costs when there was no evidence of unreasonableness or bad faith or malice on the part of the applicant, who successfully executed a search warrant against the premises and found drugs there which resulted in official cautions of Mr Tubman's wife and children, but not Mr Tubman himself because he had been ill in bed at the time, and no drugs were found in his bedroom.
3. The relief sought is an order for certiorari to quash the order for costs. The respondents are the Crown Court and Mr Tubman. Neither is present or represented, although I am satisfied that Mr Tubman has been served and, indeed, made aware yesterday that today's hearing was taking place.
4. I can summarise the background facts as follows. The applicant, as I have said, is the Chief Constable of Police for the West Midlands, and as such has responsibility for the exercise by West Midlands police officers of the police function with regard to liquor licensing. The second respondent, Mr Tubman is, and was at all material times, licensee under a justices' on-licence, of the public house to which I have already referred.
5. By notice in writing, dated 11 March 1998, a superintendent on behalf of the applicant made an application to come before licensing justices under the appropriate section of the Licensing Act 1964, for the revocation of Mr Tubman's on-licence on the basis that he was no longer a fit and proper person to hold that licence. The basis for the application for revocation was principally that Mr Tubman had either ignored the use and exchange of controlled drugs on his premises, or that he had been unaware when a reasonable and diligent publican ought to have been aware of such use and exchange.
6. On 6 March 1998, a search warrant under the Misuse of Drugs Act was executed at the public house for the search of both the licensed premises and the private living accommodation occupied by Mr Tubman and his family. On that occasion, evidence of the use of controlled drugs upon the premises was found by the police. As I have mentioned, Mr Tubman was ill in bed at the time of the execution of the search warrant and no controlled drugs were found upon him or within his bedroom. However, his wife, son and daughter all received official police cautions for the possession of controlled drugs following the execution of the search warrant, as did a customer and an employee.
7. At a hearing between 7-9 October 1998, the Coventry Licensing Justices found as a fact that Mr Tubman was not a fit and proper person to hold a justices' licence, and his licence was accordingly revoked on 9 October 1998.
8. By a notice in writing, dated 27 October 1998, Mr Tubman appealed the decision of the licensing justices to the Crown Court under the relevant provision of the Licensing Act. That appeal was heard by HHJ Cole and four licensing justices on 19-20 April 1999. On 20 April 1999, the Crown Court found as a fact that Mr Tubman was a fit and proper person to hold a justices' on-licence and accordingly allowed his appeal.
9. In allowing his appeal, the Crown Court -- in a judgment extending to some ten pages of transcript delivered by HHJ Cole -- made no criticism of the applicant in bringing the revocation proceedings. There were no findings in that judgment that the applicant had acted other than in accordance with the public duty of the police to provide information to the court as to whether a person was fit to hold a justices' licence.
10. Thereupon, Mr Tubman's counsel applied for an order for costs against the applicant. It appears from the transcript of the colloquy following the delivery of the judgment that Mr Samuel, who also appeared on behalf of the applicant on that occasion, made reference to a decision of Roch J (as he then was) in the case of R v Totnes Licensing Justices ex parte Chief Constable Devon and Cornwall [1990] 156 JB 587.
11. There was some discussion of that case, and the Crown Court was referred to a note on the subject in the latest edition of Patterson. The transcript then records Mr Samuel submitting as follows:

"... I would like to suggest to the Court that in this case the police really had no opportunity to do anything else but bring revocation proceedings against the licensee in the information which the police had and the amount of drugs which were found there and the circumstances which were found.

Judge Cole: Yes, well, we shall allow Mr Tubman to have his costs. If they cannot be agreed, then clearly they must be taxed."

12. The notes in Patterson (to which alone the Crown Court was referred), unhappily do not bring out the full effect of the relevant authorities, copies of which, most unfortunately, do not appear to have been provided to the Crown Court.
13. As I have mentioned, the first relevant authority is the decision of Roch J in the case to which I have already made reference. The relevant passage in Roch J's judgment reads as follows:

"There can be no doubt that in civil proceedings between litigants, be it in the High Court or county court, the principle is that costs follow the event. The winning party obtains an order for costs against the losing party unless there are exceptional circumstances or reasons why this should not be so.

Mr Barrie has pointed out that the basis of that principle is this: the losing litigant should not have contested the matter before the court. In my judgment it was wrong for the justices to treat this matter as civil proceedings between two private litigants and to ignore the factor urged upon them by the solicitor appearing for the police authority, namely, that the police have a function which they are required to perform. They are required to supervise the proper conduct of the licensed premises and to object in those cases where there are good grounds for objecting to the renewal of the licence. That that is the police's function is clearly demonstrated by the provisions in the Licensing Act which give the police power to enter licensed premises whether at the invitation of the licensee or not.

In addition, in my view, the police authority must also bring to the attention of the licensing justices matters of which the police know and which can fairly and properly be said to amount to misconduct by the licensee or those for whom he is responsible ...

Such factors emphasise the importance of the police being able to discharge their functions with regard to the licensing laws fairly and properly. Of course, if the evidence indicated that an objection by a police authority to the renewal of the justices' on-licence was misconceived, that it was without [proper] foundation or born of malice or some improper motive, then it would be just and reasonable for the police to be ordered to pay the costs of the successful licensee ... One of the roles the police must fulfil is to enable justices, who have to consider the renewal of licenses, to make informed decisions."

14. The second authority to which I was referred is Lightman J's decision in R v Methyr Tydfil Crown Court ex parte Chief Constable Dyfed Powys Police (unreported) 9 November 1998, BAILII: [1998] EWHC Admin 1058 . That is also a case where it appears to have been necessary to bring a decision to the High Court because the relevant law report had not been provided to the Crown Court.
15. In his judgment in that case, Lightman J said, having referred to Roch J's judgment in the Totnes case:

"It seems to me quite clear that on the basis of that guidance if the matter were proceeding before the justices there could be no justification for an order that the police pay the costs of Mrs Witter [she was the licensee in that case]. However, the matter has to be reviewed in the context of an appeal to the Crown Court. The Crown Court's powers as to the costs are contained in rule 12(2) of the Crown Court Rules 1982 which provides that:

'the Crown Court may make such order for costs as it thinks just.'

On an appeal to the Crown Court, against the refusal to transfer the justices' licence, any person who objects to that transfer becomes a Respondent: see section 22(3) and section 201(1) of the Licensing Act 1964. Accordingly on this appeal to the Crown Court the Chief Constable had to be made, and was, a Respondent. The submission made on behalf of the Chief Constable is that the principle laid down in the Totnes case applies equally to a hearing before the Crown Court. That is disputed by counsel for Mrs Witter.

In my view, the position is quite clear: the same principle applies before the Crown Court as before the licensing justices. The language of the relevant rules [is] for all practical purposes identical. This is reinforced by the consideration that the proceedings before the Crown Court take place by way of rehearing. In the same way as the justices need the assistance of the police in respect of the provision of any information which may assist them in deciding whether or not an Applicant is a fit person to hold a licence, the Crown Court requires that assistance. It seems to me that no order can properly be made against the police simply on the basis that costs follow the event. The Crown Court can only make such an order if it can be shown that the police's position has been totally unreasonable or prompted by some improper motive."

16. A little later on, Lightman J continued:

"... where the police have a public duty to afford protection to the public in respect of some particular activity, whether it is firearms or the conduct of licensed premises, if they have relevant information which goes to the fitness of an Applicant, then it is in the public interest, and in pursuance of their public duty, that they make their position clear to the relevant Tribunal, whether it is the licensing justices or the Crown Court. If in so long as they act responsibly in accordance with that duty, then no adverse order for costs can be made against them. It is not a simple case of costs following the event; it must be clear, as I indicated earlier, that the police have acted otherwise than in good faith or have acted utterly unreasonably before they are exposed to an Order for costs."

17. In the light of those two authorities, Mr Samuel submits that the order made in the present case was contrary to those authorities, given that there had been no finding to indicate that the applicant had been acting other than in an appropriate exercise of the police function with regard to licensing.
18. He submitted that the police have a licensing function to bring before the licensing justices matters of concern regarding the holding of a justices' licence. He points out that in this case drugs were found in the private areas of the public house, in the possession of each member of Mr Tubman's family save for Mr Tubman himself, that drugs were found in the public areas of the public house in the possession of customers and a member of staff, and that Mr Tubman had maintained that he had no knowledge of the sale or use of drugs within his public house.
19. Mr Samuel submits that this was a matter which had to be reported to the licensing justices to determine whether this apparent lack of knowledge, given the widespread possession and use of drugs within the public house, was acceptable in the circumstances, compared with a reasonably prudent and competent licensee.
20. Mr Samuel also submits that on appeal to the Crown Court the police necessarily became respondents by reason of the relevant section of the Licensing Act 1964. He tells me that the licensing justices in Coventry have a standard practice that they are not represented at appeal hearings. Accordingly, he makes the point that had the police not attended and called evidence, there would have been no evidence put before the appeal hearing to determine whether or not the licensing justices had been correct in revoking Mr Tubman's licence.
21. He submits this is part of a police function regarding licensing, and he repeats the point that no criticism of the police having attended at the appeal hearing was raised before the Crown Court at any stage.
22. In a note which has been helpfully provided for the assistance of this court, the Crown Court seeks to justify its decision as follows:

"The police believed there was drug dealing going on at the White Bear and this was known if not condoned by Mr Tubman. The basis for this belief was information from two informers and an anonymous letter. In addition the police were aware that Mr Tubman was employing a man known to them as 'Gipsy John' who was wanted on a warrant and who had, they believed, a connection with drugs.

The Police did not arrest Gipsy John nor interview Mr Tubman. Instead they planned a raid on the premises in the hope that they would catch Gipsy John dealing in drugs and find evidence that Mr Tubman was involved with drugs. The raid took place in March 1998 some 3-4 months after the information that Gipsy John was working on the premises.

The raid involved some 67 officers (although not all the officers were present at the premises when the raid took place). It concentrated on the public area, the area behind the bars and the private accommodation. Small quantities of cannabis, amphetamine and cocaine were found to a total street value of £220. Mr Tubman's wife and two teenage children were in possession of amphetamine and cannabis. Mr Tubman said he was unaware of their use of drugs. At the time of the raid Mr Tubman was not on duty but ill in bed. There was no evidence to dispute Mr Tubman's evidence ...

When we retired, we had to decide whether Mr Tubman was a fit and proper person to hold a licence. We decided that he was. At the same time, we discussed the question of costs, as we were aware we had a discretion. We accepted that the police had to follow up the information they had but did not accept the methods they chose were reasonable. Furthermore bearing in mind the result of the raid, we did not feel that the police were bound to oppose the licence.

When we were asked to award costs we were referred to the principle in the case of R v Totnes Licensing Justices ex parte Chief Constable of Devon and Cornwall [May 11 1990 reported in the Justices of the Peace Reports at p 587] that costs should not be awarded against the police if objections had been fairly made and in line with the duty of the Police to prevent abuses of the drinking laws etc. We decided to award costs for the reasons given above. We did not give separate reasons for awarding costs as we were conscious that the Police have a difficult job and did not want to criticise them publicly when there was no real need to do so."

23. With great respect to HHJ Cole and his colleagues, I cannot accept these as adequate reasons to justify what, in my judgment, was a plainly incorrect exercise by the Crown Court of its discretion. In the first place, it is simply unacceptable for the Crown Court to say:

"We did not give separate reasons for awarding costs as we were conscious that the Police have a difficult job and did not want to criticise them publicly when there was no real need to do so."

24. This, I am afraid, just will not do. In circumstances where an order of the kind in question can only be made on the court being satisfied that certain conditions are met, at least some indication should be given as to the reasoning which underlies the court's decision, and why it is that the court finds that those conditions are met.
25. Secondly, the reference in the reasons now given by the Crown Court, to the court not accepting that the methods the police chose were reasonable, suggests that, in part at least, the Crown Court was allowing its discretion as to how the costs of the proceedings should be borne to be affected by matters which did not relate to the police's conduct of proceedings, but rather to the steps previously taken by the police to enforce the criminal law. I am not convinced that this was a relevant factor to be taken into consideration.
26. Be that as it may; thirdly, even on the Crown Court's own reasoning, this was not a case in which costs could properly have been awarded against the police. As I have already recited, the Crown Court were of the view that the methods which the police had chosen were "not reasonable" and the Crown Court "did not feel that the police were bound to oppose the licence". Furthermore, in seeking to justify why it was that they did not criticise the police publicly, the Crown Court had indicated "there was no real need to do so".
27. Even accepting these findings, in my judgment they fall far short of the test as set out by Lightman J. I should add that in any event, so far as I can see, the police behaved entirely properly at all stages of the proceedings, both before the licensing justices and before the Crown Court.
28. Mr Samuel, you are entitled to the order you seek. As I understand it, there is no application for costs.
29. MR SAMUEL: There is no further application, my Lord.