England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice The Strand London WC2A 2LL
		12 October 2009

Monday 12 October 2009

LORD JUSTICE SCOTT BAKER:

1. This is an appeal by way of case stated against a decision of the Teesside Justices on 24 November 2008.
2. There is an initial problem because the application to state a case was made out of time, on 20 January 2009, well outside the 21 day time limit. Section 111 of the Magistrates' Courts Act 1980 is clear in its terms. It provides:

"(1) Any person who was a party to any proceedings before a magistrates' court or is aggrieved by the conviction, order, determination or other proceeding of the court may question the proceeding on the ground that it is wrong in law or is in excess of jurisdiction by applying to the justices composing the court to state a case for the opinion of the High Court on the question of law or jurisdiction involved; but a person shall not make an application under this section in respect of a decision against which he has a right of appeal to the High Court or which by virtue of any enactment passed after 31 December 1879 is final."

Subsection (2) is of importance. It provides:

"An application under subsection (1) above shall be made within 21 days after the day on which the decision of the magistrates' court was given."

The authority of Michael v Gowland [1977] 1 WLR 276, which is specifically referred to in the note in Halsbury's Statutes (albeit the case was decided in relation to the predecessor of this section) makes it clear that that provision is mandatory and that there is no discretion on the part of the court to extend the time.

3. The request for an extension of time was not made on behalf of the appellant at any stage until it was made orally before us by Miss Smith this morning. We do not have access to all of the relevant materials, some of which have been put before the court at a late stage during the course of argument. We have done our best to consider them. In short, Miss Smith argues that under the Civil Procedure Rules this court has a discretion to extend time.
4. This argument is resisted by Mr Kilgour on behalf of the respondent to the appeal. He submits that there is no power to extend time; that the position remains as it was stated to be by the Divisional Court in Michael v Gowland as long ago as 1977; and that the statutory provision is mandatory that anyone seeking to state a case must do so within 21 days after the decision complained about was made. Mr Kilgour submits that the Civil Procedure Rules do not apply. A close examination of the Civil Procedure Rules and the Criminal Procedure Rules makes it clear that, whatever powers of extension there are with regard to submission of the draft case, response and appeal, the initial application, which is a statutory provision (now 21 days; at the time of Michael v Gowland 14 days), must be complied with and there is no power of extension. Mr Kilgour submits that the position is akin to the statutory provision that proceedings in the magistrates' court must be commenced within certain instances within six months of the conduct of which complaint is made.
5. Miss Smith submits that an extension of time ought to be granted in this case because following the order on 19 November there was correspondence with the magistrates' court clerk. A letter from the court clerk dated 4 December indicated that the order was made under section 64 of the Magistrates' Courts Act 1980. That was a contention which she submits (and there is force in this) appears to have been plainly wrong. She submits that there was a delay up until 7 January 2009, during which it was hoped that the issue of jurisdiction could be resolved with the justices, but on 7 January that finally proved to be impossible. She therefore submits that either the time should not be deemed to start running until then or, alternatively, she should be granted an extension of time.
6. I have come to the conclusion that even if there is power in this court to grant an extension of the 21 day period, that is not a power which we should exercise in the circumstances of this case. I, for my part, have very grave doubts as to whether there is indeed power to extend the time or whether Michael v Gowland has been overtaken by the rules. On the limited research that has been possible on the part of the court, it seems to me that it is highly probable that there is no power to grant the extension sought by Miss Smith.
7. In the circumstances, however, it is unnecessary to resolve that issue. I do not think that where the point is taken in this way after this length of time it is one that merits the extension sought.
8. It is desirable to say a word about the facts of the case. On 20 October 2008 police executed a search warrant at 5 Cleveland View, Skelton Green, Saltburn, the home of Mr and Mrs Vaughan. A quantity of cash was seized. It was said initially to be possibly as much as £15,000, but it appears that it was £5,000 or thereabouts. The following day, 21 October, the police applied under section 295(4) of the Proceeds of Crime Act 2002 to hold the cash on the grounds that they had reasonable grounds for suspecting it was connected with criminal conduct. The magistrates' court heard an application on 22 October and said that the cash could be retained for three months, until 21 January 2009.
9. Meanwhile, Mrs Vaughan instructed solicitors who wrote to the court on 31 October seeking the release of the cash to her as it was, she said, her money, unconnected with any criminal activity. An application was made to the court under sections 297 and 301 of the Proceeds of Crime Act 2002 for the money to be returned to her.
10. The court listed the application for hearing on 24 November 2008 and wrote to Mrs Vaughan's solicitors on 13 November 2008 with, it is said, a copy to the appellant. However, the magistrates' court found that the appellant had not been sent a copy of the application as required by the rules.
11. On 24 November the appellant's solicitor happened to be at court on another matter, but knew nothing of the respondent's application for the money. She asked for a short adjournment in order to obtain instructions from the officer in the case. She obtained them over the telephone. She discovered that the money had been returned to Mrs Vaughan on 19 November. The appellant's solicitor could perfectly properly have asked for the case to be adjourned, but she did not. Mrs Vaughan's solicitor asked for the application to be withdrawn and applied for costs against the police. The appellant's solicitor resisted the costs application on the merits, rather than either seeking an adjournment or suggesting that the magistrates had no jurisdiction to make such an order. The appellant's solicitor referred the court to Bradford Metropolitan District Council v Booth (2000) 164 JP 485. This case drew attention, in different circumstances to the present case, to the competing interests of, on the one hand, allowing the police to take administrative action honestly and reasonably without fear of being penalised in costs and, on the other, the financial prejudice to someone in the shoes of Mrs Vaughan if she was forced to incur costs that would otherwise be irrecoverable in establishing her rights. The appellant's solicitor did not suggest that there was no power to order costs.
12. The court made a number of findings of fact which are set out in the stated case as follows:

"a. Following the seizure of the cash, Mrs Vaughan had attended at the police station and given a full explanation as to how the cash came to be in her property, including bringing her business books to show how the money had been made through the business. Following that explanation the police persisted in their application for continued detention.

b. That the amount of cash seized was in fact £5,000, not £15,000 as contained in the original application for continued detention.

c. Despite Mrs Vaughan's explanation the police were not satisfied that the cash should be returned to her and requested Mr Vaughan and his son to attend the police station to be interviewed before they would consider returning the cash.

d. Mr Vaughan and his son refused to attend the police station voluntarily and Mrs Vaughan then instructed Watson Woodhouse solicitors on 29 October to issue an application requesting that the detained cash be released to her.

e. Following the letter of application being sent to the appellant the cash was returned to Mrs Vaughan on 19 November 2008.

f. Following those findings we concluded that the police had not acted reasonably in refusing to release the detained cash despite a full explanation as to its origins being provided by Mrs Vaughan. We concluded that the return of the detained cash was precipitated by the application by Marie Vaughan for the return of the cash.

g. As a result we decided that the police had not acted reasonably following the seizure of the cash from Mrs Vaughan's property.

h. We considered the points made by the appellant. In light of these we then considered the points raised in R v Bradford MDC and weighed the financial prejudice that would be caused to Mrs Vaughan if no order for costs was made with the need for the police to continue to make decisions in the public interest without fear of undue financial prejudice if the decision is successfully challenged.

i. We considered that if Mrs Vaughan had to contribute a substantial sum towards her solicitors' costs it would cause financial prejudice both to herself and the business she runs. We thought that if an order for costs were made against the appellant this would not dissuade the police from continuing to act in the public interest when conducting enquiries under the Proceeds of Crime Act 2002. Therefore, on the facts presented to us, an order for costs was made against the appellant.

j With the assistance of our legal adviser we concluded that an order in the sum of £1,000 should be made and we made an order to that effect."

13. As there was no issue about the power to order costs, the magistrates did not say under what provisions they ordered them, although subsequently in the correspondence I have mentioned they referred to section 64(1) of the Magistrates' Courts Act 1980. That Act provides:

"On the hearing of a complaint, a magistrates' court shall have power in its discretion to make such order as to costs --

(a) on making the order for which the complaint is made, to be paid by the defendant to the complainant;

(b) on dismissing the complaint, to be paid by the complainant to the defendant,

as it thinks just and reasonable."

The order was not made on the complaint. Nor was the complaint dismissed. It was, in fact, withdrawn.

14. The other possibility to which reference is made is section 52 of the Courts Act 1971. That provides for an award of costs where information or complaint is not proceeded with. Subsection (3), so far as relevant, reads:

"(3) Where --

(a) ....

(b) a complaint is made to a justice of the peace acting for any area but the complaint is not proceeded with,

a magistrates' court for that area may make such order as to costs to be paid .... by the complainant to the defendant as it thinks just and reasonable."

That deals with costs to be paid by the complainant to the defendant (ie in this case Mrs Vaughan to the police). It does not seem to me that that provides a foundation of jurisdiction either.

15. Although Miss Smith submits that in the recent past that provision has been extended so that it might cover the circumstances of this case, there is no suggestion that such a provision was in force at the material time. If the jurisdiction point had been drawn to the attention of the magistrates, it seems to me that what would have occurred -- and I do not think that Mr Kilgour seriously quarrels with this -- is that the magistrates would have concluded that they had no jurisdiction to order costs. The matter should have been dealt with by way of a claim for compensation under section 302 of the Proceeds of Crime Act 2002, which would have been made separately, and indeed we are told has been made separately, although it forms no part of the case stated.
16. Were we to grant the extension of time sought by Miss Smith, and were she after full argument to succeed in persuading the court that there was no jurisdiction, it seems to me that the net result would be that that would simply activate the compensation proceedings and there would be yet further litigation at public expense.
17. For my part, I would decline to grant the extension of time sought by Miss Smith in respect of the case stated. I express considerable hesitation as to whether, even if minded to grant such an extension, there is any power to do so.

MR JUSTICE CRANSTON:

18. I agree. We have not heard full argument on the extension of time point. Section 111(2) of the Magistrates' Court Act 1980 seems clear. The application for a case stated must be made within 21 days. Miss Smith for the appellant points to CPR 3.1, which sets out a list of powers, in addition to any power given to the court "by any other rule or practice direction or by any other enactment or any power it may otherwise have": CPR 3.1(1). She points to 3.1(2)(a), where a court may make, extend or shorten the time for compliance with any rule, practice direction or court order, and may do that retrospectively. However, the phraseology of CPR 3.1 is significant. The opening clause is "Except where these Rules provide otherwise". Practice Direction 52, paragraph 18.3, provides that the procedure for a case stated is set out in the Criminal Procedure Rules. So it is those rules which govern. Rule 64.4 of the Criminal Procedure Rules, while providing for an extension of time in relation to some aspects of a case stated, does not do so in relation to the 21 day limit set out in section 111(2) of the Magistrates' Court Act. In the result, I agree with my Lord that there is every reason to think that Michael v Gowland [1997] 1 WLR 296 is still good law.

MR KILGOUR: My Lord, not surprisingly, I have an application for costs.

MISS SMITH: My Lord, I oppose the application for costs. The police authority did everything they could to try to avoid this High Court decision making process by trying to address the matter in the lower courts.

(There followed an argument on costs)

LORD JUSTICE SCOTT BAKER: Despite the persuasive arguments of Miss Smith, we have come to the conclusion that it would be right that the respondent should have the costs of this appeal which has failed for the reasons we have described.