CO/2666/2004 
Neutral Citation Number: [2004] EWHC 2414 (Admin) 
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2 

Monday, 11 October 2004
 
B E F O R E:

MR JUSTICE KEITH
 
- - - - - - -
THE QUEEN ON THE APPLICATION OF HASTINGS BOROUGH COUNCIL
(CLAIMANT)

-v- 

DOREEN GEORGINA JONES
(DEFENDANT) 
 - - - - - - -
Computer-Aided Transcript of the Stenograph Notes of 
Smith Bernal Wordwave Limited
190 Fleet Street  London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
 - - - - - - -
MS S HOWE (instructed by Hastings Borough Council) appeared on behalf of the CLAIMANT
MR D LAMMING (instructed by Funnell & Perring) appeared on behalf of the DEFENDANT
 - - - - - - -
J U D G M E N T 

	MR JUSTICE KEITH:  
Introduction 
1.	On 15th September 2003, six summonses were issued on the information of the appellant, Hastings Borough Council ("the Council"), against the respondent, Mrs Doreen Jones.  They all alleged that she had made a statement which she had known to be false on an application for housing or council tax benefit contrary to section 112(1) of the Social Security Administration Act 1992.  The summonses were heard at Hastings Magistrates' Court on 25th February 2004.  The justices dismissed the summonses and acquitted Mrs Jones.  The Council now appeals against the dismissal of the summonses by way of case stated.
Delay 
2.	The appellant's notice was filed in the Administrative Court Office on 20th May 2004.  It therefore had to be served on Mrs Jones's solicitors by 24th May 2004: see para 18.6 of the Practice Direction relating to Part 52 of the Civil Procedure Rules.  In fact, it was not sent to her solicitors until 7th June, and was only received by them on 8th June.  Ms Sara-Lise Howe for the Council has told me on instructions that the reason for the delay was that the solicitor dealing with the case had only just joined the Council, and had never been responsible for an appeal by way of case stated.  He does not appear to have looked up the rule about (a) the requirement to serve the appellant's notice on Mrs Jones, or (b) the time limit for doing so, or if he had looked up the rule, he had not understood it.  In these circumstances, the Council applies for an extension of time for serving the appellant's notice on Mrs Jones's solicitors.  
3.	It is well established that, when considering such an application in a case of any complexity, the court should take into account, not only the overriding objective in rule 1.1, but also the checklist in rule 3.9(1).  I have concluded that I should extend the Council's time for serving the appellant's notice on Mrs Jones's solicitors.  Mrs Jones has not been disadvantaged by receiving it 15 days out of time, and it would not be right for the Council to be denied a consideration of its appeal on its merits for only a short delay which was attributable to inexperience.  It is true that the Council did not comply with rule 3.9(2), which requires an application of this kind to be supported by evidence, but what occurred is apparent from what Ms Howe has told me.  Although the delay cannot be excused, I extend the Council's time for serving the appellant's notice on Mrs Jones's solicitors for the 15 days needed to validate its service.
The facts 
4.	The first application form which Mrs Jones completed for housing and council tax benefit, and to which the summonses related, was dated 28th May 1998.  She completed it in her own handwriting.  In the box in which she had to record her employer's name and address, she wrote CCS Ltd, which was short for Comprehensive Cleaning Services Ltd ("CCSL").  She did not record any other employment.  The completed form was received by the Council on 1st June 1998.  In fact, Mrs Jones was also employed at the time by East Sussex Hospitals NHS Trust ("the Trust").  In these circumstances, the first of the summonses which Mrs Jones faced alleged that she had, on 1st June 1998, made a statement which she had known to be false on an application form for housing and council tax benefit in that she had failed to declare her employment with the Trust.
5.	The five other summonses related to similar application forms for housing or council tax benefit received by the Council on 14th June 1999, 26th May 2000, 31st May 2001, 6th June 2002 and 4th December 2002.  On each of those forms Mrs Jones only entered CCSL as her employer, when at the relevant time she was also employed by the Trust.  It should be noted that on all six application forms, Mrs Jones either put a line through that part of the form which requested her to identify any savings which she had, or put a line in the box marked "no".  She therefore did not put any entry in the box which she had to cross if she had a bank account.  In fact, she had had a bank account at some stage.  However, none of the summonses alleged that Mrs Jones had failed to declare her bank account in any of the application forms, and her failure to do so was therefore of evidential significance only.  
6.	In her evidence, Mrs Jones explained why she had failed to mention her employment with the Trust in any of the application forms.  She was not good at reading or writing, and she had not been confident enough to complete the forms herself.  So a friend of her stepson, who was training to be an accountant, had helped her with the forms.  That applied not only to the six application forms to which the summonses related, but also to an earlier application form for benefit dated 22nd May 1996.  She had paid him £20 each time for his help.  He had written out for her, in non-capital letters, what she was to write on the forms, and she had copied what he had written onto the forms in capital letters while he had been with her.  She had given him the wage slips for both her jobs, but he had told her that she only had to give details of her job with CCSL.  When she had suggested to him that she ought to refer to both her jobs on the form, he had said to her: "Who is the idiot here, me or you?"  
7.	The effect of her evidence was that until then she had thought that she had to give details of both her jobs, since she admitted that she was aware that her income was relevant to the assessment of her benefit.  But in the light of what her stepson's friend had told her, she had then thought that she was not required to mention her job with the Trust.
8.	In her evidence, Mrs Jones admitted having written a letter to the Council dated 29th July 1998 about her claim for benefit.  In that letter, she had referred only to her employment with CCSL.  Her explanation for that was that she had been aware that she had to notify the Council of any change in her circumstances, and the letter had been written to inform the Council that her stepson had left home.  Her sister had written what she should write, and Mrs Jones had just copied what her sister had written.  She had not told her sister about her employment at the Trust, even though it had become her main job by then, in view of what her stepson's friend had previously told her when she had completed the application forms.  However, she admitted that in an application form for a mortgage she had referred to both jobs.
The issue 
9.	On this evidence, there is no doubt about the issue which the justices had to decide.  Section 112(1) of the Social Security Administration Act 1992 provides, so far as is material: 
"If a person for the purpose of obtaining any benefit or other payment under the [Social Security legislation] whether for himself or some other person, or for any other purpose connected with that legislation -- (a) makes a statement or representation which he knows to be false ... he shall be guilty of an offence."
Two points should be made about the offence created by section 112(1).  First, dishonesty is not an element of the offence, though a person who makes a statement which he knows to be false will invariably be regarded as having acted dishonestly.  Secondly, in Harrison v Department of Social Security (CO/1244/96), the Divisional Court held that a defendant must know, if he is to be convicted of the offence created by section 112(1), that the statement which he was making was material to his application for benefit.  That was plainly established in this case in view of Mrs Jones's acceptance that she had been aware that her income was relevant to the assessment of her benefit.  
10.	Thus, since it was conceded that the statement which she had made was false in that it had not referred to her employment with the Trust, the issue for the justices was whether it had been proved that, when she had completed the application forms, she had known that the statement which she was making was false.  In the context of this case, that meant that what had to be proved was that she had known that she had been required to mention her job with the Trust.  If the justices thought that she might have believed that she had only been required to mention her job with CCSL, she could not have knowingly made a false statement.
11.	The justices expressed their findings on the issue as follows: 
"We were of the opinion that Mrs Doreen Jones did not realise that the forms required both of her employments to be put down on the forms and therefore she did not know each of the statements was false at the time she completed them and accordingly found her not guilty and acquitted her of all 6 of the allegations against her."  
The Council requested the justices to state a case for the opinion of the High Court.  The question on which the justices have asked the High Court to express an opinion is:  
"... whether the court's decision was reasonable on the evidence given that she knew at the time she completed the forms that the form required details of her employment and that she had more than one employment but only disclosed one on the basis that she could not adequately read the question herself to answer it and relied on the assistance of a third party to understand what details were required and to complete the forms."
12.	An appeal to the High Court from a decision of justices to acquit a defendant can only lie on the grounds that the justices' determination was "wrong in law" (or in excess of jurisdiction, which is not alleged in this case): see section 111(1) of the Magistrates' Court Act 1980.  Although the question posed by the justices was whether their decision to acquit Mrs Jones was "reasonable on the evidence", the only question of law which arises on this appeal is whether the decision was one to which the justices could not reasonably have come on the evidence, ie whether the decision was perverse.  After all, it is possible for two different benches of justices to come to different views on the same facts, but that does not mean that one of those views is unreasonable.  I therefore propose to treat the question which the justices have asked as "whether it was reasonably open on the evidence for the justices to have reached the decision which they did".
Perversity 
13.	As I have said, the effect of Mrs Jones's evidence was that she had thought, as a result of what her stepson's friend had told her, that she had not been required to mention her job with the Trust.  Unless the justices were sure that that was untrue, they had to acquit Mrs Jones.  The critical question, therefore, is whether the evidence to the contrary was such that Mrs Jones's evidence had to be untrue.  
14.	In my judgment, there is no basis for saying that the evidence to the contrary is such that Mrs Jones's evidence had to be untrue.  It may well be that another bench of justices would have been sure that Mrs Jones had not been telling the truth.  After all, she admitted believing, initially at any rate, that she had been required to give the details of both her employments on the application forms because her income was relevant to the assessment of her benefit, and that she had known that she had not done that.  She had also lied about whether she had a bank account.  When it had been in her interests for her income to be minimal (as with her dealings with the Council), she had not mentioned her job with the Trust.  But when it had been in her interests for her income to be greater (such as when she applied for a mortgage), she had mentioned her job with the Trust.  But the critical question is whether it was possible that what she claimed she had been told by her stepson's friend had made her think that, despite her original belief that she had had to mention her job with the Trust, she did not in fact have to.  It is, in my view, not possible to say that no bench of justices could not reasonably have had a doubt about that issue.  
15.	Ms Howe submitted that since there had been sufficient evidence for the justices to find that Mrs Jones had been -- and these are her words -- "acting under the advice from another (who was not called to give evidence)", that would have amounted to mitigation only.  I do not agree.  If Mrs Jones had believed, as a result of what her stepson's friend had told her, that despite her original belief about what she was required to disclose she did not in fact have to disclose her job with the Trust, that went to liability, not mitigation, because it amounted to a lack of knowledge of the falsity of the statement which she made.  And the fact that her stepson's friend was not called to give evidence confirming what Mrs Jones claimed he had told her was of limited relevance, since the justices would not have been entitled in the absence of evidence to speculate about why he had not been called to give evidence.  Unless it had been open to the justices to infer that he had not been called to give evidence because he could not support her version of events, the fact that he had not given evidence simply meant that there was no evidence corroborating Mrs Jones's version of events.  The absence of such evidence did not mean that the only conclusion which the justices could have reached was that Mrs Jones's evidence was untrue.
Conclusion 
16.	For these reasons, therefore, the answer to the question which the justices must be treated as having asked is that it was reasonably open on the evidence for the justices to have reached the decision which they did, and this appeal by way of case stated must accordingly be dismissed.  
17.	But there is one other matter which I should mention by way of postscript.  This appeal has been heard by a single judge of the High Court.  The practice of listing criminal appeals by way of case stated before a single judge of the High Court, rather than before a Divisional Court of the Queen's Bench Division, has been criticised by the editor of Archbold: Criminal Pleading, Evidence and Practice in his prefaces to the 2003 and 2004 editions.  There is, I think, no basis for saying that the practice is not permitted by the Civil Procedure Rules -- indeed, the editor of Archbold does not suggest otherwise -- but it should be noted that a single judge of the High Court, as opposed to a Divisional Court of the Queen's Bench Division, cannot make an order for the payment of costs out of central funds: see section 16(5) of the Prosecution of Offences Act 1985. 
18.	It may be that this is an issue which the Civil Procedure Rules Committee should consider, having consulted persons who practise in the criminal justice system.  The issue does not arise in this case in a practical form because Mrs Jones is publicly funded for the purposes of this appeal, and the only costs which she would have incurred, but which would not have been covered by the support she is getting from the Legal Services Commission, would have been her travelling expenses.  As it is, she has not incurred any such expenses because she has chosen not to attend the hearing of this appeal.
19.	Are there any consequential applications? 
20.	MR LAMMING:  The question of costs.  My Lord may well think that this is a case in the circumstances where the proper order is that the losing party should pay the respondent's costs.  I would invite your Lordship to consider making that order, that the Council pay the respondent's cost.
21.	MR JUSTICE KEITH:  What is the practice when there is an application for costs inter partes?  What is the test I have to apply? 
22.	MR LAMMING:  It is in the discretion of the court. 
23.	MR JUSTICE KEITH:  Yes, but is there any guidance as to the way in which that discretion should be exercised? 
24.	MR LAMMING:  I am not aware of any specific guidance beyond the usual rules about costs in the Civil Procedure that the losing party pays.
25.	MR JUSTICE KEITH:  Or in a prosecutor's appeal by way of case stated is the principle -- 
26.	MR LAMMING:  In that situation the prosecutor who succeeds normally recovers his costs against a privately funded respondent.  Obviously he does not do so if the respondent is publicly funded.
27.	MR JUSTICE KEITH:  Thank you very much indeed. 
28.	MS HOWE:  As I understand it, the general rule in these types of cases stated is that costs come from central funds and there is no particular reason why there should be an inter partes costs application today.
29.	MR JUSTICE KEITH:  Let us assume that I am a member of a Divisional Court and that therefore I have the power to order costs out of central funds.  In what circumstances would the Divisional Court decline to order costs out of central funds but make an order for costs to be paid by the unsuccessful prosecutor?  That, I think, is the critical issue.
30.	MS HOWE:  My Lord, I believe it is where the application is brought totally unreasonably.  That is where you would be considering that.
31.	MR JUSTICE KEITH:  Could you tell me where you get that from?  
32.	MS HOWE:  My understanding is that in these cases it is normal and in the absence -- 
33.	MR JUSTICE KEITH:  What is your understanding based on? 
34.	MS HOWE:  It is normal that the costs should come from central funds. 
35.	MR JUSTICE KEITH:  What is your understanding based on, personal practice or what you have been told by others practising in the field? 
36.	MS HOWE:  From what I have read.  The only thing I have read is that costs generally will come from central funds, not anything to the contrary.
37.	MR JUSTICE KEITH:  Costs generally.  You say that what you have read is that costs generally come from central funds.  From what you have read, in what circumstances does the general rule which you have just mentioned not apply?
38.	MS HOWE:  I need a moment to look this up.  
39.	MR JUSTICE KEITH:  Very well.
40.	MS HOWE:  I note that my learned friend is asking for something that does not happen normally, and yet he has not put anything before the court to base that on.
41.	MR JUSTICE KEITH:  By all means, Ms Howe, if you want to spend a little while looking it up I am very happy to give it to you.
42.	MS HOWE:  If my Lord has come to the conclusion that is not appropriate in any event that the normal course of action ought to be followed -- 
43.	MR JUSTICE KEITH:  Before I come to the conclusion I need to know what the test is.  Very well.  How long do you think you will need?  Ten minutes or so? 
44.	MS HOWE:  My Lord, yes.  It is my learned friend's application so I need to know how long he needs.  He needs to put the authority before the court also.
45.	MR JUSTICE KEITH:  All right, then.  Let us ask him.
46.	MR LAMMING:  The Practice Direction, if I can go to that, what I handed up a little earlier, the relevant paragraph in that is on page 1076.
47.	MR JUSTICE KEITH:  I have mislaid it now.  I have it; 1076.
48.	MR LAMMING:  The last page that I copied.  It is Part VI: "Award of costs against offenders and appellants".  It starts: 
"A magistrates' court of the Crown Court may make an order for costs against a person convicted of an offence before it or in dealing with it in respect of certain orders as to sentence ... The Crown Court may make an order against an unsuccessful appellant ... The court may make such an order payable to the prosecutor as it considers just and reasonable."
49.	So the principle there is that the losing party in the Crown Court -- 
50.	MR JUSTICE KEITH:  That does not help.  It is really VI.1.6, is it not, the Administrative Court? 
51.	MR LAMMING:  VI.1.6 deals specifically with this court, saying it is not covered by section 18, but the court has complete discretion.  That is why I called in aid the general principle in the Civil Procedure Rules.
52.	MR JUSTICE KEITH:  Yes, I see.  Well, I think that is the way in which the case is put against you then, Ms Howe, that there is a complete discretion according to the Practice Direction.  
53.	MS HOWE:  My Lord, yes.
54.	MR JUSTICE KEITH:  Do you want to take now time out for a few minutes? 
55.	MS HOWE:  My Lord, yes.
56.	MR JUSTICE KEITH:  Of course.  Unless you ask me to return to court earlier, I will come back to court at 12.35.  
(The short adjournment). 
57.	MS HOWE:  My Lord, I do not have a conclusive answer to the question as yet.  I note in my copy of Atkins Court Forms that what it says is this: that costs are in the discretion of the court.
58.	MR JUSTICE KEITH:  Of the Administrative Court?
59.	MS HOWE:  Sorry.  I am just being spoken to in my other ear.
60.	MR JUSTICE KEITH:  In what context?  Costs are in the discretion of the court in what context?
61.	MS HOWE:  It does not in fact say.  I will read the point to you: 
"An application for costs should be made at the end of the case."
62.	MR JUSTICE KEITH:  What sort of case is it?  Any case? 
63.	MS HOWE:  Appeal by way of case stated.  
64.	MR JUSTICE KEITH:  That is what I needed to know. 
65.	MS HOWE:  Costs are in the court's discretion but will generally be awarded to the successful party.  In a criminal cause or matter the costs for the successful defendant or private prosecutor may be awarded out of central funds.  An order for costs out of central funds will be the cost of the proceedings in the court below.  The court may, in the exercise of its inherent jurisdiction over officers of the court, order a solicitor to personally pay costs thrown away by reason of dereliction of his duty to the court. 
66.	Obviously we are not talking about that.  
67.	MR JUSTICE KEITH:  No, we are not.
68.	MS HOWE:  I may need a little further time to consider, if my learned friend is going to pursue his application, or if my Lord is considering exercising his discretion for this reason.  The respondent is publicly funded under a criminal Legal Aid order.  I am aware that under the Prosecution of Offences Act -- and I am trying to find the point -- that were the respondent in the Magistrates' Court to be successful, or even in the Crown Court to be successful, there are no costs apart from the travel expenses that they could claim in both Magistrates' Court -- 
69.	MR JUSTICE KEITH:  There are costs.  There are costs, if I may say so.  There are the Legal Services Commission's costs of representing her.
70.	MS HOWE:  I am aware that the Act is very clear on that point.  In the Magistrates' Court or the Crown Court a publicly funded defendant cannot claim costs -- 
71.	MR JUSTICE KEITH:  I see.
72.	MS HOWE:  -- from the prosecution if they are successful.  
73.	MR JUSTICE KEITH:  I understand.
74.	MS HOWE:  And they cannot claim costs -- 
75.	MR JUSTICE KEITH:  That is a complete answer to the point then. 
76.	MS HOWE:  They cannot claim costs out of central funds either, because they have been publicly funded. 
77.	MR JUSTICE KEITH:  Well, if that is correct, Ms Howe, that is of course a complete answer to the point because she is publicly funded, and if, as you say, an order cannot be made in favour of a publicly funded appellant, that means that Mr Lamming's application has to fail for that reason.  So obviously I need to have chapter and verse for that.  If you do not have it to hand now -- and I understand you to say that you do not -- I am prepared to give you until 2.00 pm.
78.	MS HOWE:  My Lord, it may be that I need a copy from the Court Library of Stones Justice Manual.
79.	MR JUSTICE KEITH:  It is in the Supreme Court Library, but I think the Supreme Court Library now is only available for judges.  You need to go to the library in the Queens Building, I think. 
80.	MS HOWE:  My Lord, in any event I will have various propositions to put before you.  It is only a discretion to order costs.
81.	MR JUSTICE KEITH:  You say I do not have a discretion at all.  You say you have a knock-out blow that I simply cannot make the order that Mr Lamming seeks.
82.	MS HOWE:  In the Crown Court you would not be able to, and in the Magistrates' Court.  I am assuming that because it is a criminal defence point you would not be able to here, also.  I am concerned, of course, that this may be where the question comes from if we had been before the Divisional Court rather than just before yourself.  My Lord, it is something I am going to have to consider and I am going to need time.
83.	MR JUSTICE KEITH:  I am not stopping you.  That is why I say I will hear you at 2.00 pm.  I hope that does not inconvenience you, Mr Lamming. 
84.	MR LAMMING:  My Lord, no, I can be back.  I will wait to hear what Ms Howe has to say.
85.	MR JUSTICE KEITH:  Of course. 
(The short adjournment). 
86.	MS HOWE:  As far as the point of costs is concerned, referring to the Practice Direction (Costs in Criminal Proceedings), 93 Cr.App.R. 89, it is set out in Archbold 2004 at page 881, specifically at paragraph -- 
87.	MR JUSTICE KEITH:  881?
88.	MS HOWE:  881.
89.	MR JUSTICE KEITH:  Yes.
90.	MS HOWE:  Referring to extended orders of costs from central funds, and what it says in relation to that is -- 
91.	MR JUSTICE KEITH:  Has this not been overtaken by the 2004? 
92.	MR LAMMING:  My Lord, it has.  It is in the supplement.
93.	MR JUSTICE KEITH:  So that Practice Direction is now old hat, I am afraid.
94.	MS HOWE:  I have not brought my supplement with me because I was on the train.  I wonder if I could look at my learned friend's copy and see how it varies.
95.	MR JUSTICE KEITH:  Yes.  On page 110 of the third supplement we see that the Practice Direction that Mr Lamming produced this morning replaced the one set out in the main work. 
96.	MS HOWE:  I had not taken on board that point.
97.	MR JUSTICE KEITH:  It is a mistake easily made, Ms Howe.  You must not castigate yourself for it.
98.	MS HOWE:  But I do not think that amends the point I wish to refer to, which in fact is a reference at Archbold at 103 to section 21.4A of the Powers of the Criminal Court Act.  
99.	MR JUSTICE KEITH:  Of which Act? 
100.	MS HOWE:  The Powers of Criminal Courts Act that has been referred to in relation to:  
"The costs of a legally aided person will not be recovered ..."
101.	MR JUSTICE KEITH:  I do not know what you are reading from.
102.	MS HOWE:  I have a copy of it.  Costs in criminal cases, Powers of Criminal Courts Act section 21.1A, which is not set out in Archbold but is referred to.  Perhaps I could hand that up for you.  I do not have a copy for my learned friend.  We had very little money at the photocopying machine and it would not accept pound coins.  (Handed). 
103.	MR JUSTICE KEITH:  It is not your day, is it?  This is part of the 1985 Act, is it? 
104.	MS HOWE:  1985.  Section 21.4A, sub paragraph (a), states for the purposes of section 16 and 17 of this Act:   
"Where one party to any proceedings is a legally assisted person then for the purposes of 16 and 17 of this Act, his costs shall be taken not to [include] the costs of representation funded for him by the Legal Services Commission as part of the Criminal Defence Service."  
105.	Effectively, what it is saying -- 
106.	MR JUSTICE KEITH:  That is for the purpose of 16 and 17.  Yes, and why is that the material section rather than sections 18, 19 and 19A?
107.	MS HOWE:  Because sections 16 and 17 refer to defence costs orders, 18 refers to award of costs against an accused. 
108.	MR JUSTICE KEITH:  But section 16 relates to a defendant's costs order, ie an order for the payment of costs out of central funds which is not what we are concerned with on Mr Lamming's application, and section 17 is the prosecution costs, so that does not apply.  Why do you say then that section 16 or 17 applies then? 
109.	MS HOWE:  The way I look at it is this. 
110.	MR JUSTICE KEITH:  Just answer my question.  You have referred me to a provision which states that for the purposes of these sections the costs are not to be, in effect, taken into account.  Why do you say that those sections are relevant?
111.	MS HOWE:  Because, my Lord -- and I am looking at the old Practice Direction and have not had a chance to compare with the new Practice Direction, paragraph 6-104 -- in considering whether to make such an order for costs in the Court of Appeal (Criminal Division), and also before that in relation to the Divisional Court of the Queen's Bench Division, first of all "the court may make a defendant's costs order on determining proceedings in a criminal cause or matter".
112.	MR JUSTICE KEITH:  Where are you reading from now? 
113.	MS HOWE:  Going back to Archbold.
114.	MR JUSTICE KEITH:  What page? 
115.	MS HOWE:  Page 882.
116.	MR JUSTICE KEITH:  Which paragraph?
117.	MS HOWE:  Paragraph 6-104, but it is currently listed as 2.8, but it is in the old Practice Direction.
118.	MR JUSTICE KEITH:  2.8: 
"In considering whether to make such an order ..."
119.	What is that a reference to? 
120.	MS HOWE:  To making an order for costs.
121.	MR JUSTICE KEITH:  No, that is costs order -- look at 2.6 -- and we are not concerned with the defendant's costs order because that is not the application which is being sought.  You see, there are two kinds of costs orders in relation to a defendant's costs.  One is an application that the defendant's costs be paid out of public funds.  If such an order is made, that is called a defendant's costs order, but that is not the application which is made in this case because I do not have any power to order it.  Instead a wholly different kind of order is being sought, and that is an order which is not a defendant's costs order, ie an order that the costs be paid out of central funds, but that Hastings pay Mrs Jones's costs.
122.	MS HOWE:  My Lord, what I am seeking to show my Lord is this.  My learned friend represents the respondent, Mrs Jones.  Right at the outset of this application he said that were we in the Divisional Court he would have been able to apply for costs out of central funds, but none arise because she did not travel today and because she is legally aided.  
123.	MR JUSTICE KEITH:  That is right.
124.	MS HOWE:  The principles in the Magistrates' Court and the Crown Court, as set out by section 16 and 17 of the Prosecution of Offences Act 1985, say specifically in relation to a defendant in those circumstances that in determining what costs they have come to, the legal aid representation does not count and they cannot recover those costs.
125.	MR JUSTICE KEITH:  For the purposes of sections 16 and 17, yes.
126.	MS HOWE:  Likewise, in section 18 of the Prosecution of Offences Act, the Borough Council would not be able to obtain its costs out of central funds in this court.
127.	MR JUSTICE KEITH:  Correct.  What about 19?  Provision for orders as to costs in other circumstances, ie circumstances to which sections 16, 17 and 18 do not apply.
128.	MS HOWE:  But those other circumstances, as I understand it, are where the conduct of the case is being criticised.
129.	MR JUSTICE KEITH:  I see.
130.	MS HOWE:  As opposed to any other reason.
131.	MR JUSTICE KEITH:  I understand.
132.	MS HOWE:  19A, Costs against -- 
133.	MR JUSTICE KEITH:  At the moment I do not see how your section 21.4A arises because this is not an application for the purposes of 16, 17, 18, 19 or 19A.
134.	MS HOWE:  Where I draw the analogy, my Lord, is that in relation to a Magistrates' Court or an appeal to the Crown Court, a successful appellant, because they are legally aided -- there would be no costs for that appellant to recover, because they are legally aided, from central funds.  There would not be an application for costs against the prosecuting authority save in wholly exceptional circumstances.
135.	MR JUSTICE KEITH:  Where do I get that from?  I am afraid you must not assume that I am familiar with these principles.  If you do make an assertion, Ms Howe, you have to tell me what the source of it is.
136.	MS HOWE:  I am sure it is something that my learned friend will concede that in the Crown Court and the Magistrates' Court there is never an application for costs against the prosecuting authority unless there is something about the conduct of that authority.  I think my learned friend would concede that.
137.	MR JUSTICE KEITH:  Yes.
138.	MS HOWE:  I do not know whether my learned friend is going to concede that point or not.
139.	MR JUSTICE KEITH:  He has had an invitation from you.  If he wishes to say anything, he will.  Until he does you must proceed.
140.	MR LAMMING:  I was waiting for my Lord to make a note before I got to my feet.  I am concede to concede that normal practice in the Magistrates' Court on trial is that -- 
141.	MR JUSTICE KEITH:  We are not talking about practice here; we are talking about jurisdiction.  The point which Ms Howe makes is that because Mrs Jones is publicly funded for the purposes of this appeal, the court has no power to make an order requiring Hastings to pay her costs.
142.	MR LAMMING:  I do not concede that and I submit it is wrong.
143.	MR JUSTICE KEITH:  We are not concerned with practice.  We are only concerned with jurisdiction.
144.	MR LAMMING:  My Lord, so far as I can see, the court has jurisdiction.  Indeed, the Practice Direction says in terms that the Administrative Court has complete discretion over all costs between the parties.  
145.	MR JUSTICE KEITH:  Yes.
146.	MR LAMMING:  My Lord, I did over the lunch adjournment speak to the lawyer in the Administrative Court Office who sent out the representation order for Mrs Jones, and that was his understanding too, not by reference to any particular authority, but the practical effect is whether public funds generally bear the costs of this appeal or whether the Council Tax payers of Hastings who brought it should bear it. 
147.	MR JUSTICE KEITH:  That is the point.  That is the practical effect of what we are discussing.
148.	MS HOWE:  Perhaps I should have said at the outset that, looking at the Practice Direction, this court certainly has jurisdiction to order costs, but the analogy that I am drawing is that it should not, and my Lord considers what is the practice in the Magistrates' Court and the Crown Court where there is a publicly funded party, and the practice is that the public funded party is not awarded costs other than their personal costs as set out in paragraph 6-1O3 of Archbold, this bit not being usurped by the new Act where the party who is legally aided will only recover his personal costs, considering what the personal costs are.  
149.	My Lord, the reason I asked you to consider that that is the proper way to go forward in this case is that when one considers paragraph 28 of the old Practice Direction -- and, my Lord, forgive me if I have not had an opportunity to translate that into the new numbers and the new Practice Direction -- but in considering where there is a discretion to award the defendant's costs, the Court of Appeal is asked in considering whether or not to make such an order to have in mind the principle in the Crown Court in relation to the defendant's costs, the old paragraph 2.2.  It said that it should normally be that when one considers what are the powers of the Crown Court, and what happens normally in the Crown Court, that a legally aided party is only given their personal costs.  
150.	My learned friend started at the outset of this issue by stating that there were no costs because the appellant herself had not attended.  If she had, because we were in front of this court rather than the Divisional Court, she would not have any powers to apply for costs out of central funds for her travel costs.  My learned friend is seeking to ask for something wholly different, which would be highly punitive on the Hastings Borough Council.
151.	MR JUSTICE KEITH:  To mark what is in effect an appeal which had little prospect of success.
152.	MS HOWE:  That might be their application but it is something that I would have to resist in that it would be punitive on the Hastings Borough Council to do so.  Mrs Jones herself has not suffered any costs and I was not even aware that that was something that my learned friend was even asking for or your Lordship was considering.
153.	MR JUSTICE KEITH:  He is now.  He is asking for the Council to pay her costs.  He says two things: (1) he says it is a complete matter of discretion and there is no reason in this case why costs should not follow the event.  Alternatively, he says, if the discretion should only be exercised in a case in which the prosecutor has acted unreasonably, then he says this is such a case because this was not a case in which the appeal had any real prospect of success.
154.	MS HOWE:  What I would say in reference to that, further to your judgment, is it certainly was commented upon that a different bench may have come to a different decision.
155.	MR JUSTICE KEITH:  That is the whole point.  It is a pure question of fact.
156.	MS HOWE:  Your Lordship should look to the effect that that will have on the Council, and the fact that if your Lordship chooses not to order costs in this case to Mrs Jones, who has suffered no costs, then the effect on the Council is far greater than it could possibly ever be.
157.	MR JUSTICE KEITH:  I have not understood that submission.
158.	MS HOWE:  Well, your Lordship, what I say is this.  There is a reason why the Council, were they successful before a Divisional Court, could not have applied for costs out of central funds, and that is because it is not possible to award costs from one public body to another public body.
159.	MR JUSTICE KEITH:  On the contrary.  They could have made the same application if this had been a Divisional Court.  The only difference between the fact that this has been an appeal heard by a single judge is that they cannot apply for an order for costs out of central funds.
160.	MS HOWE:  Even if it were a Divisional Court, the Council cannot in any event.  The Act is very clear about that.  
161.	MR JUSTICE KEITH:  The Council cannot in any event do what?
162.	MS HOWE:  Before the Divisional Court the Borough Council would not have been able to apply for costs out of central funds against a legally aided respondent, and I would say that the reason for that is so that one public body is not funding another public body.  
163.	My Lord, I take the view that this was not a case where it was an unreasonable application for this court and that is the only basis -- 
164.	MR JUSTICE KEITH:  The application was reasonable, the application to ask the Magistrates to state a case.  Once they had stated the case and we knew the basis upon which they acquitted her, the question then is whether the appeal -- and that is what we are talking about, not the application to state a case, but the appeal by way of case stated.
165.	MS HOWE:  In my submission, your Lordship, it was reasonable to pursue the application before this court, but that is not to say that (inaudible) those matters have now been adjudicated upon.  It was not so obviously clearly unreasonable as to justify, where there are no costs to the respondent herself in this case -- had she been privately funded, it may have been a different matter, but that is not the case.  There is public funding there for her, and there is public funding in a hard strapped Borough Council who are simply trying to protect the public purse in their prosecution of offences.  
166.	My Lord, you do have a discretion in this case.  I would ask you to exercise that discretion.  The discretion is not balanced one way or the other.  You are not bound to order costs, and you must consider, my Lord, that Mrs Jones herself has not been put to any costs, and the same as in an appeal to the Crown Court -- 
167.	MR JUSTICE KEITH:  The funding authority has, though.  
168.	MS HOWE:  The funding authority, but -- 
169.	MR JUSTICE KEITH:  All we are talking about is whether or not her costs for this appeal should be financed by the funding authority, which is one public body, or the Council, which is another.  The bottom line, therefore, is that the general tax payers, who fund the Legal Services Commission, or the particular tax payers in Hastings, who fund the Council, will have to pay for the unsuccessful appeal the Council has lodged.
170.	MS HOWE:  One has to consider whether it should be the small pool of people in Hastings or -- it seems to me the point my Lord has raised -- whether it should be that which the Legal Services Commission representative orders normally pays for.  Your Lordship plainly seems to be against me.
171.	MR JUSTICE KEITH:  I do think the issue is one of two things.  Either I have an unfettered discretion, or I have a discretion which enables me only to order costs against the Council if I think that the appeal was unreasonably brought.  At the moment I am inclined to think that the appeal was unreasonably brought, and therefore even on the higher of the two tests it seems to me that this application for costs should succeed.  That is what I think at the moment.
172.	MS HOWE:  There is nothing I can say.  I mean, I seek to persuade you that the application was reasonable.  You heard my applications this morning.  
173.	MR JUSTICE KEITH:  Yes.
174.	MS HOWE:  What we were dealing with was a matter where, on the face of it, you had a defendant who had -- 
175.	MR JUSTICE KEITH:  There is not much point in going over the facts.
176.	MS HOWE:  My Lord, the evidence in the case stated was that she knew that form contained details -- 
177.	MR JUSTICE KEITH:  She originally knew that that was the form, but was persuaded to think otherwise by what Mr Parker said.  That is what I have held to be the effect of her evidence.
178.	MS HOWE:  Exactly, but there was that point for you to consider whether it was reasonable for the Magistrates to come to that conclusion, and obviously that was dealt with and adjudicated on this morning, and that was the point which I asked your Lordship to consider on the basis where, on the face of it, you have a defendant who has filed a number of forms all excluding that information, provided no evidence in support of what she said, provided -- my Lord, I cannot revisit it, but provided an interview which she knew was dishonest, and did not provide any other evidence before the court that the Magistrates' accepted what she said in her evidence-in-chief.  
179.	My Lord, it does seem that there was a basis for that application before your Lordship this morning.  Obviously it has been adjudicated upon and obviously the adjudication is accepted, and no doubt the guidance that you have given this morning in relation to that sort of case will be helpful to other counsel in the future; counsel and solicitors, and also to the Council in considering prosecuting a particular case.  In my submission your Lordship has provided useful guidance for the future.  It may well form part of a reference in (inaudible) manuals.  It will assist how other councils proceed in the future.  
180.	In those circumstances, my Lord, I do not believe it would be appropriate for the costs to be paid by the Council when the guidance is, in my submission -- certainly in relation to Court of Appeal cases, and I would suggest also in relation to matters before the Divisional Court.  The Divisional Court is particularly mentioned.  
181.	One has to consider what normally happens in the case below, and the respondent herself has not suffered any costs.  Had she done so, then it would be right for your Lordship to order costs for her travel expenses or other costs personal to her from the Council.  But this is not a case, in my submission, that was so clear that it should not have come before your Lordship, and as I say your Lordship has provided useful guidance for the future and that no doubt will assist others in considering cases of this sort.  Is there anything else I can assist you with? 
182.	MR JUSTICE KEITH:  I do not think so.  Thank you very much.
183.	MR LAMMING:  May I say this very briefly.  So far as my learned friend's point about my Lord giving guidance for the future, no doubt there will be those who will find your Lordship's judgment instructive.  On the principal point -- what is the basis of an appeal by case stated to this court by a prosecutor -- the guidance as to what constitutes a perverse decision is very clearly set out in previous authority.  
184.	MR JUSTICE KEITH:  I agree. 
185.	MR LAMMING:  You can see it in my skeleton and in the judgment of Millet LJ in the Law Reports. 
186.	MR JUSTICE KEITH:  I always like to think that my judgments have a wider application than is of interest to the parties, but I do not think I could characterise this judgment as having that.
187.	MR LAMMING:  I think advocates always like to think their cases (inaudible).  Really, this was a case, as my Lord accepts, for the Council to look at the case stated and assess the realistic chances of success.  
188.	So far as the other point that my learned friend concedes, that had Mrs Jones been privately funded today she could not have resisted the order for costs, that really highlights the fallacy of the argument.  The Legal Aid fund is not a bottomless pit, and the general tax payer should not be expected to foot the bill for what is really an ill-based appeal.  If that has consequences for the Borough Council in explaining it to members, then so be it.  That may teach them a lesson for the future.
189.	MR JUSTICE KEITH:  Thank you very much.  Do you wish to say anything in reply to that? 
190.	MS HOWE:  I do not think I can. 
191.	MR JUSTICE KEITH:  I have decided that the Council should pay Mrs Jones's costs of the appeal.  If there are no principles governing the way in which the discretion of the Administrative Court on an appeal by way of appeal case stated should be exercised, as appears to be the case from Part VI.1.6 of the recent Practice Direction on costs in criminal proceedings, I see no reason why the costs should not follow the event.  
192.	If an unsuccessful prosecutor's appeal by way of case stated should result in the prosecutor having to pay the appellant's costs only if the prosecutor has acted unreasonably -- I believe that this is such a case because I think the appeal was bound to fail, and had the Council considered the case stated carefully it should have come to that conclusion.  The only issue is whether it was open to the justices to find that it had not been proved that Mrs Jones had known that she had not been obliged to tell the Council about her job at the Trust.  
193.	Since the justices found that Mrs Jones might well have been told what she claims she was told by her stepson's friend, then there was no basis on which it could be said that it had not been open to the justices to reach the decision which they reached.
194.	Is there anything else? 
195.	MR LAMMING:  I am grateful.  The only matter that I am unclear about is whether, my Lord having made that order, it is necessary also for the court to make some provision about -- I was going to say -- 
196.	MR JUSTICE KEITH:  Legal Aid taxation, now called public funded assessment of your client's costs.  I do not think it is.  They are not going to be assessed for the purposes of public funding.  They are going to be assessed for the purposes of determining what sum the Council ought to pay.  This is not a case, I think, in which there should be what used to be called Legal Aid taxation.
197.	MR LAMMING:  Thank you.  To avoid any future doubt on assessment, does my Lord's order for costs include any costs in relation to the application for an extension of time?
198.	MR JUSTICE KEITH:  Yes, I do not supposed that there have been any costs incurred by you in connection with that, but to the extent that they are, obviously that is included.  In any event, they would have had to have paid such costs as were incurred by you in considering your position on their application for an extension of time.  It is not your fault that they were out of time and therefore had to make the application.