England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		15th April 2008

1. MR JUSTICE DAVIS: The question raised for the opinion of the High Court in this appeal by way of case stated is this:

"Whether an order for costs incurred as a result of an unnecessary or improper act or omission by or on behalf of a prosecutor in criminal proceedings, pursuant to section 19(1) of the Prosecution of Offences Act 1985, can be made to compensate an unrepresented defendant in those proceedings for his own loss of time in preparing his case and attending court, when the defendant is not acting as a barrister or solicitor on his own behalf?"

The appeal has been presented by Mr Crowch, acting in person. If I may say so, Mr Crowch has put his case extremely engagingly and attractively, and also has put it very clearly.

2. The named respondent is the Director of Public Prosecutions. No-one appeared on behalf of the Director of Public Prosecutions and it may be that there has been some muddle as between the Director or the Crown Prosecution Service, or whoever else may have been involved in the original prosecution. But Mr Crowch has told me that when he contacted the court he was told that the respondent was aware of this appeal. Given those circumstances, and given the position as I will outline it today, I did not think it necessary to adjourn this matter for attendance by the respondent, and indeed that would scarcely have been convenient to Mr Crowch.
3. The background is that on 1st March 2007 District Judge Cooper, sitting in the Magistrates' Court in Nottingham, heard an application by Mr Crowch on 1st March 2007 for an award of costs against the respondent pursuant to section 19(1) of the Prosecution of Offences Act 1985 and regulation 3 of the Costs in Criminal Cases General Regulations 1986. Mr Crowch appeared in person before the District Judge (Magistrates' Courts) on that occasion, as he has done before me today.
4. The background facts, as set out very clearly in the case stated, are these. On 10th April 2006 an information was laid on behalf of Nottinghamshire Police alleging that the appellant, Mr Crowch, had committed an offence on 23rd November 2005 by driving a motor car on a restricted road at a speed exceeding 30 miles per hour. On 23rd May 2006 the case was listed for a first hearing and was adjourned until 27th June 2006, Mr Crowch by that stage having indicated that he was pleading not guilty. On 27th June 2006 Mr Crowch appeared before the court and confirmed his plea of not guilty. At that stage the respondent was in possession of information concerning the availability of the Crown witnesses and a date was set for the trial of the case to take place on 24th October 2006.
5. On 22nd August 2006 the respondent made an application to the court to vacate the trial listing on the ground that one of its witnesses would not be available. This application was adjourned to 5th September for the respondent to give notice of the application to Mr Crowch. On 5th September 2006 the application was heard and was refused. It appears, nevertheless, that at some stage between 5th September and 24th October 2006 a decision was taken on behalf of the respondent to cancel the attendance of all prosecution witnesses on 24th October 2006.
6. On 24th October 2006 Mr Crowch duly attended court for his trial. He was then met with the respondent renewing the application to adjourn the trial due to the unavailability of a witness, albeit the Crown had already cancelled the attendance of two other witnesses proposed to be relied upon by the Crown. The court refused to adjourn the case and the respondent then offered no evidence in support of the information, which was duly dismissed. A defendant's costs order was made in favour of Mr Crowch under the provisions of section 16 of the Prosecution of Offences Act 1985, awarding him a sum of £46 from central funds for his travelling expenses.
7. Some months later Mr Crowch informed the respondent and the Magistrates' Court that he was seeking to apply for an order that the respondent should pay him costs in the sum of £1,600, on the ground that he had not been informed by the respondent, in advance of the trial, that the Crown would be renewing its application for adjournment of the case and would be offering no evidence if that application failed. In his letter to the respondent, as the District Judge (Magistrates' Courts) recorded it, Mr Crowch said this:

"No-one informed me not to attend so I am now seeking expenses for my two abortive trips to court plus all the associated preparation time. The normal hours/day rate for my services is £400 per day."

It may be added that Mr Crowch is not himself a solicitor or barrister or legally qualified. As he told me, he is an engineer.

8. There was then further correspondence. In February 2007 the Clerk of the Justices informed Mr Crowch that he may make a claim for unnecessary costs under the provisions of section 19 of the Prosecution of Offences Act 1985 and asked Mr Crowch to confirm whether he wished to have a hearing to pursue such an application. By letter dated 19th February 2007, Mr Crowch informed the Clerk of the Justices that he did wish to pursue a wasted costs application against the Crown Prosecution Service and requested that a hearing be arranged. That hearing was the hearing arranged for 1st March 2007.
9. On that occasion, Mr Crowch submitted that the respondent's failure to inform him that the trial of his case would not go ahead on 24th October 2006 amounted to an unnecessary or improper act or omission by, or on behalf of, the respondent and that Mr Crowch had lost time preparing his defence and attending court which he valued in the sum of £1,600. He submitted that that should be treated by the court as costs that he had incurred for the purposes of section 19(1) of the Prosecution of Offences Act 1985. Rather curiously, it appears that no submissions were made on behalf of the respondent on this point, even though the respondent was represented by a Senior Crown Prosecutor at that particular hearing.
10. As set out in the case stated, the District Judge had referred himself to the decision in R v Bedlington Magistrates' Court ex parte Wilkinson [1999] 164 JP 156. The District Judge set out in the case stated the reason why he concluded that he had no power to make an order for the costs claimed by the appellant. This was because time lost in attending court and case preparation by an unrepresented defendant, who was not himself a practising lawyer, could not be treated as costs incurred by him for the purposes of section 19(1) of the 1985 Act. Having reached that conclusion, the District Judge made clear that he did not go on to consider the merits of the claim of Mr Crowch any further.
11. Section 19 of the 1985 Act in the relevant respects provides as follows:

"(1) The Lord Chancellor may by regulations make provision empowering Magistrates' Courts, the Crown Court and the Court of Appeal, in any case where the court is satisfied that one party to criminal proceedings has incurred costs as a 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 . . .

(3) The Lord Chancellor may by regulations make provision for the payment out of central funds, in such circumstances and in relation to such criminal proceedings as may be specified, of such sums as appear to the court to be reasonably necessary --

(a) to compensate any witness in the proceedings, and any other person who in the opinion of the court necessarily attends for the purpose of the proceedings otherwise than to give evidence, for the expense, trouble or loss of time properly incurred in or incidental to his attendance."

Reference may also be made to regulation 3 of the Costs in Criminal Cases General Regulations 1986 which in the relevant parts states:

"(1) 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."

For completeness, reference may also be made to section 16 of the 1985 Act. Section 16 relates to defence costs. That provides by subsection (1) that where:

"(a) an information laid before a justice of the peace for any area, charging any person with an offence, is not proceeded with;

(b) a Magistrates' Court inquiring into an indictable offence as examining justices determines not to commit the accused for trial.

(c) a Magistrates' Court dealing summarily with an offence dismisses the information;

a court or, in a case falling within paragraph (a) above, a Magistrates' Court for that area, may make an order in favour of the accused for a payment to be made out of central funds in respect of his costs (a 'defendant's costs order') . . .

(6) A defendant's costs order shall, subject to the following provisions of this section, be for the payment out of central funds, to the person in whose favour the order is made, of such amount as the court considers reasonably sufficient to compensate him for any expenses properly incurred by him in the proceedings."

12. The District Judge was right to note that section 19(1), regulation 3 and section 16(1) and (6) refer to costs or expenses but do not, in contrast to section 19(3), also refer to compensation, as it were, for trouble or loss of time. Mr Crowch's application, of course, was by reference to section 19(1).
13. These statutory provisions have been the subject of a number of previous decisions of this court. The District Judge himself referred to the judgment of Moses J in the Bedlington Magistrates' Court case, and he cited this particular relevant extract from that decision:

"There is ample authority for the proposition that a litigant in person in criminal proceedings is not entitled to claim costs in respect of the amount of hours he has expended in labouring to defeat a claim. Harsh though that conclusion may seem, it has now been the authority of this court for many years. In R v Stockport Magistrates' Court ex parte Cooper [1984] 148 JP 261, Ackner LJ in this court explained the rationale lying behind such a conclusion. The word in the statute relevant in that case (which has now been repealed but replaced by the 1985 Act) was 'expenses' and, bearing in mind that the costs were going to have to be found out of public funds, there was no warrant in the statute for allowing a litigant in person items that were not expenses but were a value placed upon the hours expended in working at his case. In reaching that conclusion this court drew a distinction between solicitors (and indeed in another case barristers) who had defended themselves in criminal proceedings. The justification for such a distinction may be questioned, but the rationale behind the conclusion that this court has for some considerable time reached lies in the wording of the statute. The contrast that this court draws is between the reference to 'expenses properly incurred' (see section 16(6)) and the amount which may be awarded out of central funds to a witness who attends a hearing. By section 19(3) the Lord Chancellor is empowered to make regulations [then that is set out] . . . .

In reaching a similar conclusion four years later this court drew attention to that contrast of wording in R v Stafford, Stone and Eccleshall Justices ex parte Robinson [1988] 1 WLR 369. This applicant very sensibly, as I would expect, declined the opportunity to assert that those two previous decisions of this court were wrong; and, strive though I might to think of some argument which might lead me to the conclusion that they are wrong, I have to confess I have failed."

So those were the remarks of Moses J in the Bedlington Magistrates' Court case which reflect indeed, as he said, previous decisions of the courts.

14. In the light of the wording of the statutory provisions, and of those authorities, the District Judge concluded that interpretation to be placed on the power to order costs under section 19(1) could not be differentiated from the provisions in section 16 and that the wording of section 19(1), taken also with the wording of regulation 3, was such that he could not award Mr Crowch costs or expenses by way of time which he had spent in travel to the court, time spent in preparing his case and so on. As he had indicated, having reached that conclusion it was not necessary to go on to consider further the merits of the appellant's application.
15. I have set out the reasoning of the District Judge very fully: first, because he himself set out his reasoning with great clarity, but secondly, because Mr Crowch very candidly before me this morning has indicated that he accepts that the Magistrates' arguments are correct in law. Indeed, Mr Crowch said that the District Judge (Magistrates' Courts) "did a brilliant job". I have to say, for myself, that the reasoning in law of the District Judge (Magistrates' Courts) seems to me impeccable by reference to his analysis of the statutory provisions and by his appropriate reliance on authority which was binding on him.
16. Given that that was the position in law, as Mr Crowch accepted, I asked him in the course of argument what it was that I, as a High Court Judge, could do to depart from what the legal position has long been established to be. Mr Crowch's answer was to say that what had happened here was not just. He submitted that as he was today in the Royal Courts of Justice, justice is what he would expect to receive; and he complains strongly that the underlying reality was that his time had been positively wasted by the prosecution in this case. As to that, the District Judge made no positive finding and I have not heard from the prosecution today to argue its corner on that point. I think, however, I am justified in saying, by reference to the facts as set out by the District Judge (Magistrates' Courts) in the case stated, that the prosecution's conduct in this matter seems to be questionable to say the least, and on one view it may well be described as lamentable. I find it unsurprising that Mr Crowch feels aggrieved and feels that his time has been wasted.
17. The fact remains that, as Mr Crowch has said the Magistrate "got it 100 per cent right". That is not only the factual position, it is the legal position. As a judge, it is my duty to apply the law. I have to apply the terms of the statute. I also have to give effect to the way in which that statute has been interpreted by a number of authorities which I must regard as binding upon me. Accordingly, as a matter of law, it seems to me that the District Judge (Magistrates' Courts) reached the right conclusion and the way in which the question he posed for the opinion of the court has to be answered is by answering it in the negative.
18. That then leaves Mr Crowch's sense of injustice. I think there may be a number of people who might share that sense of injustice, given what seems to have been (and I stress that I have not heard from the prosecution here) the scenario that arose in this case. But Parliament has seen fit to circumscribe the amounts of money that may be paid to persons such as Mr Crowch where costs may have been wasted. The amount that can be recovered does not extend to time lost in preparation and the like; and the Regulations do not sanction that either. It may well be, as Mr Crowch himself rather hinted, that if there is a perception that this result is unjust the Regulations ought to be reviewed again and perhaps amended. But that currently is not the position. The position has now been standing for many years and Parliament and the Lord Chancellor have not seen fit to alter either the wording of the Act or the wording of the Regulations. Therefore, given that the law is as the Magistrate stated it to be, I can do nothing other than dismiss Mr Crowch's appeal.
19. Mr Crowch, that is my judgment. Obviously, as you will have gathered, your appeal has failed in point of law. I do not think I can say or do anything more than that, I am afraid.
20. MR CROWCH: Fine.
21. MR JUSTICE DAVIS: You can obtain a transcript of this judgment if you wish it.
22. MR CROWCH: Just one further thing, I would like to ask the court what is my next stage in pursuing this claim? Can I appeal against the appeal?
23. MR JUSTICE DAVIS: On appeal by way of case stated your rights of appeal, I think, are rather limited. I am afraid I do not have the relevant rules in front of me. I am not sure, but I think in an appeal by way of case stated, if you want to appeal you have to go direct to the House of Lords. You will have to make enquiries as to whether you can go to the Court of Appeal or some higher court if you want to appeal this decision of mine.
24. MR CROWCH: Who would I ask?
25. MR JUSTICE DAVIS: I am afraid I cannot act as advisor on this.
26. MR CROWCH: I understand. I will go on the net or something.
27. MR JUSTICE DAVIS: Either the Administrative Court Office or the Court of Appeal Office might be able to help you. I am afraid I do not have all the rules here. I hope you do not mind. Someone will be able to give you guidance. You may not wish to do it, but if you wish to take this matter further you may think it in your interests to obtain a lawyer. That is a matter for your decision.
28. MR CROWCH: That what I would have done, but we have not done bad to get as far as we have.
29. MR JUSTICE DAVIS: Thank you very much.