England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		9 June 2009

LORD JUSTICE PILL:

1. Cranston J will give the first judgment.

MR JUSTICE CRANSTON:

2. This is an application for judicial review, where the claimant challenges the decision of the Crown Court at Snaresbrook not to award costs in his favour.

Background

3. The facts were that, on 30 November 2007, the claimant had pleaded guilty at the Magistrates' Court at Barking to an offence of contravening a red traffic light signal, contrary to section 36 of the Road Traffic Act 1988. The magistrates fined him £60, ordered him to pay a £15 victim surcharge , and endorsed his licence with three penalty points. The upshot of that was that the claimant then had 12 penalty points on his licence and, under the legislative scheme, he was liable for disqualification from driving.
4. The claimant argued that to be disqualified would be exceptional hardship. Notwithstanding his representations, the magistrates decided that he should be disqualified from driving for a period of six months. Before the magistrates, the claimant was not legally represented.
5. Pursuant to section 108 of the Magistrates' Courts Act 1980, the claimant appealed against his sentence to the Crown Court, and in particular against the decision to disqualify him from driving. That appeal was heard in February 2008 at Snaresbrook Crown Court before Ms Recorder G Amakiye and two lay justices, Mrs Hassell and Mrs Ash. At this point, the claimant was legally represented by Mr Stuart Frame, who appears on his behalf before us today.
6. The claimant submitted that the disqualification would cause exceptional hardship. He gave evidence to that effect. He contended that he needed his licence to pick up his children; that his wife was not able to drive; but in particular, that he was a black cab driver. The consequence of the disqualification was that he would not be able to earn his living. After hearing his case the court decided that his appeal against sentence should be allowed. The £60 fine and the £15 victim surcharge remained, but the disqualification was removed.
7. At the end of the hearing, Mr Frame, on behalf of the claimant, applied for costs. The learned Recorder refused. She said that no exact figure had been provided. Mr Frame responded by saying that no figure for costs was available, but that the application was for costs to be assessed. Mr Frame persisted with the application, and the learned Recorder again refused, saying that the claimant had pleaded guilty in the court below. In response to that, Mr Frame said that the appeal was in relation to sentence, not in relation to conviction. The learned Recorder reiterated that the court was refusing to award the claimant the costs of the appeal from central funds. No further explanation was given.

The law

8. The law relevant to this case turns partly on section 35 of the Road Traffic Offenders Act 1988. Sub-section (1) of section 35 provides that, in cases where a person has been convicted of an offence involving obligatory or discretionary disqualification, and the penalty points to be taken into account number 12 or more, the court must order him to be disqualified for not less than the minimum period "unless the court is satisfied, having regard to all the circumstances, that there are grounds for mitigating the normal consequences of the conviction and thinks fit to order him to be disqualified for a shorter period or not to order him to be disqualified". Section 35(4)(b) provides:

"(4) No account is to be taken under subsection (1) above of any of the following circumstances-

...

(b) hardship, other than exceptional hardship ..."

9. The other relevant area of law relates to costs before the Crown Court. Section 16 of the Prosecution of Offences Act 1985 provides in sub-section (3) that where a person is convicted of an offence by the magistrates and appeals to the Crown Court under section 108 of the Magistrates' Courts Act 1980, and in consequence a less severe punishment is awarded, "the Crown Court may make a defendant's costs order in favour of the accused". In addition, sub-section (9)(b) of section 16 provides that the amount to be paid out of central funds in pursuance of a defendant's costs order may be specified in the order if the person agrees, or may be determined in accordance with regulations.
10. No indication is given in the statute itself as to how the discretion in section 16(3) is to be exercised. However, the Practice Direction on Costs in Criminal Proceedings of 18 May 2004 contains a guide to discretion in II.2.1:

"Where a person is not tried for an offence for which he has been indicted, or in respect of which proceedings against him have been sent for trial or transferred 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 between the parties is made, unless there are

positive reasons for not doing so. For example, where the defendant's own conduct has brought suspicion on himself and has misled the prosecution into thinking that the case against him was stronger than it was, the defendant can be left to pay his

own costs. The court when declining to make a costs order should explain, in open court, that the reason for not making an order does not involve any suggestion that the defendant is guilty of any criminal conduct but the order is refused because of the positive reason that should be identified."

11. The Practice Direction reflects the jurisprudence. The leading authority is Cunningham v Exeter Crown Court [2003] EWHC 184 (Admin). That was a decision where the Crown Court had allowed an appeal on sentence. Clarke LJ (as he then was) reviewed the case law, and said at paragraph 14 that the principles that he had canvassed applied to defendant's costs for a successful appellant to the Crown Court. Clarke LJ continued that the court should give reasons for its decision on costs unless the circumstances make the reasons obvious: for example, where costs are ordered to follow the event:

"Even then it seems to me to be at least desirable that a short reason or reasons for the order should be given. The statement of the reason or reasons may be very brief indeed. The reason or reasons should simply be sufficient to indicate, both to the parties and to any court of review, why the order was made. However, a court of review will only interfere where ... an order is made with neither reasons nor any obvious explanation for the order. This court can, of course, only interfere where the court erred in principle" (para [14]).

12. Clarke LJ then referred to paragraph 2.2 of the previous Practice Direction, and at paragraph 16 outlined two situations where a court might properly refuse an application by a successful appellant to award costs. The one relevant here is the situation where the Crown Court might allow an appeal against sentence as an act of mercy to the appellant. Paragraph 16 reads as follows:

"16. Further, where there are such positive reasons for not doing so, and the court decides not to make an order for costs in favour of the appellant, or for all his costs, the court should give short reasons for its decision. There may, of course, be many possible reasons why a court might properly refuse an application by a successful defendant, as Mr Barker recognised in argument. They include these two cases: first, the Crown Court might allow an appeal against sentence as an act of mercy to the appellant. That might, depending upon the circumstances, be a reason for refusing to order payment of his costs out of public funds. The second is a case where the advocate for the appellant wholly failed to put sufficient information before the justices, whether it be facts or a particularly important authority. All will depend upon the circumstances."

13. As Clarke LJ's judgment indicates, there are a number of authorities which bear on the issue. However, there is no need to go any further than the statement of principle set out in his Lordship's judgment.

Claimant's submissions

14. Before us today, Mr Frame submitted that the decision of the Crown Court was flawed in public law terms. In broad outline, he contended that, under the normal rule, the claimant should have obtained his costs unless there were positive reasons against that. The learned Recorder's first reason for refusing the application, namely that she required the exact figure for the amount to be awarded, was erroneous since a defendant's costs order can fall to be assessed.
15. The other factor mentioned by the learned Recorder, namely that the claimant had pleaded guilty in the court below was, in Mr Frame's submission, plainly erroneous. The claimant had only appealed against sentence and that appeal had been allowed. The fact of the claimant's earlier guilty plea was therefore wholly irrelevant to the application by the claimant for costs.
16. In his cogent submissions, Mr Frame contended that effectively the learned Recorder gave no reason whatsoever for her refusal to award costs in favour of the claimant. The two reasons to which I have referred were, in effect, unintelligible so as to be equivalent to giving no reasons at all.

Conclusion

17. In my view, it was open to the Crown Court in this case to refuse to award costs in favour of the claimant. There is no basis on which we can interfere with the decision on ordinary principles of judicial review. The claimant had succeeded and, as the Practice Direction indicates, that would normally indicate that an award should be made out of central funds in his favour. But it is clear from the judgment of Clarke LJ in Cunningham that "all will depend on the circumstances". As Clarke LJ pointed out, one reason that a Crown Court might properly refuse an application for costs by a successful appellant was where the court allowed an appeal against sentence as an act of "mercy" to the appellant.
18. In my view, Clarke LJ was not using the term "mercy" in any technical sense. He was highlighting that, in some cases, the merits of the appeal may not be entirely in favour of the appellant, but notwithstanding that an appeal on sentence is allowed. In this case, for example, the claimant had successfully pleaded mitigating circumstances under section 35(1) of the Road Traffic Offenders Act 1988. In fact he had accumulated 12 points, and ordinarily would be disqualified. On appeal, his case on exceptional hardship had been accepted. In that sense the Crown Court, notwithstanding his obvious history of breaches of the Road Traffic Act, had extended to him what, in Clarke LJ's terminology, could be regarded as mercy.
19. What of the reasons given by the learned Recorder for the decision: are they such as to mean that the Crown Court's decision is flawed in public law terms? As a matter of principle, the standard of reasons demanded by public law depends very much on the particular circumstances of the case. In some situations a very high standard of reasons is demanded, but in others a brief indication of the basis of the decision is all that is required. The courts have also noted that a certain latitude will be given, depending on the circumstances, as to how reasons are expressed. An important consideration will always be that the purpose behind the duty to give reasons is so that a party will understand why a particular decision has been reached.
20. The circumstances of this case were a re-hearing in the Crown Court on sentence. At the end of that re-hearing, when the claimant's appeal against the sentence of disqualification was allowed, there was the application for costs. We do not know the exact terms and context of the interchange since we do not have a transcript, although Mr Frame has given us an account, which we accept, of the gist of what was said. Mr Frame has conceded that he did not draw the learned Recorder's attention to the Practice Direction. The Recorder said initially that the exact figure for costs needed to be provided, but that could be taken as no more than a comment that without it summary assessment was not possible.
21. The Recorder then said that the claimant had pleaded guilty in the court below. Mr Frame submits that this missed the point; that this was an appeal on sentence. To my mind, however, what the learned Recorder seems to be conveying by that remark was her assessment of the merits. The claimant was guilty of the offence. He had the 12 points on his licence. The magistrates had disqualified him on that basis, but the claimant had persuaded the Recorder and her colleagues that the mitigating circumstances were such that the disqualification was not appropriate. In Clarke's LJ's phraseology, the court had showed mercy and that was, again to use his Lordship's terms, the "obvious explanation for the order" not to award costs.
22. Given that that interpretation of the learned Recorder's comment is open, in my view there is no flaw in public law terms which would enable us to intervene in this case. I would dismiss this application.
23. LORD JUSTICE PILL: I agree. A Crown Court has a broad discretion on the issue of costs in appeals involving sentences and associated orders. Moreover, appeal by way of judicial review of an order on sentence, or an order connected with it, is limited by the test stated by Lord Bingham in R v Truro Crown Court ex parte Adair [1997] COD 296 at 298:

"The question is whether the sentence or order in question falls clearly outside the broad area of the lower court's sentencing discretion."

24. For the reasons given by my Lord, Cranston J, I agree that the test was not met and the application must be dismissed. I also agree with his reasoning on the issue of reasons.