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
		08/05/2014

Mr Justice Bean:

This is the judgment of the court.

1. The claimant was charged on 29^th April 2013 with possession of a controlled drug and driving while unfit through drugs. He was bailed to attend the Ealing Magistrates' court on 17^th May. He attended on that day together with a legal representative for whom he was paying himself. The hearing on 17^th May was entirely abortive since no prosecution papers were available. The claimant's advocate applied for costs against the prosecution pursuant to section 19 of the Prosecution of Offences Act 1985. Both the substantive hearing and the application for costs were adjourned to 23^rd May.
2. On 23^rd May the claimant appeared before a deputy district judge and pleaded guilty to possession of a controlled drug. He was sentenced to a fine of £75 and ordered to pay prosecution costs of £85 and a victim surcharge of £20. He pleaded not guilty to the charge of driving whilst unfit which was adjourned for trial. The judge then considered the defence application for the costs of the 17^th May hearing under section 19 and refused it. A note of the judge's oral decision made by the deputy clerk to the justices reads as follows:-

"Who was responsible for the wasted hearing?

What could have been done to avoid this?

Fact – defendant arrested and taken to Acton Police Station. Taken and charged with 2 matters. Process of Police involves OIC (officer in case) preparing papers and leaving it in a tray. As I understand it is a tray designated for papers.

OIC has no further involvement in administration. Papers are then collected by the case progression unit – who they are is still unclear to me. Case progression officers then hand papers on to prosecution.

Matter didn't proceed on 17/05/2013 as someone in the case progression unit didn't do their job or missed the papers or that person who was responsible to hand papers to the CPS didn't.

However, no clear identification of party responsible. Statutory test states we need to identify the party whose fault it was. Unable to identify the party in the statutory test I have to apply. Cannot make wasted costs order.

Application fails."

3. On 23^rd August the claimant sought judicial review of the judge's decision refusing his application for costs. The CPS was served as an interested party. On 18^th January 2014 permission was granted on the papers by Irwin J. For reasons which will appear later in this judgment Mr Morley QC for the claimant and Mr Richardson for the Crown Prosecution Service jointly invited us to treat the matter as if it were an appeal by way of case stated on the correctness or otherwise of the judge's decision in addition to a judicial review application.
4. Section 19(1) of the 1985 Act enables regulations to be made giving criminal courts power:-

"….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."

Regulation 3 of the Costs in Criminal Cases (General) Regulations 1986 repeats the wording of the test set out in section 19(1) of the Act. It should be noted at the outset that the power is older than, and distinct from, the jurisdiction to make wasted costs orders against legal representatives, created by the Courts and Legal Services Act 1990 and set out in section 19A of the 1985 Act.

5. The judge refused an order for costs because it was not possible to identify "the party whose fault it was". As Mr Richardson accepts, this reasoning cannot be supported. All too often, when a mistake is made in the preparation or conduct of a CPS prosecution, the police and the CPS blame one another. But for the purposes of section 19 no distinction can be drawn between them: the "party" on the other side from the accused in such a case is the Crown. It is therefore agreed that the judge made an error of law.
6. Mr Richardson, however, submits that this was not a case for any order for costs to be made under section 19, even on the findings of fact contained in the judge's decision.
7. The leading case on the interpretation of section 19 is Director of Public Prosecutions v Denning [1991] 2 QB 532. Nolan LJ observed at 540C that the power can be exercised at any stage, and is distinct from any general order for costs made at the end of the case. At 541C he said:-

"… the word "improper" in this context does not necessarily connote some grave impropriety. Used, as it is, in conjunction with the word "unnecessary" it is, in my judgment, intended to cover an act or omission which would not have occurred if the party concerned had conducted his case properly."

8. In R (Commissioners of Customs and Excise) v Crown Court at Leicester [2001] EWHC Admin 33 Lord Woolf CJ said:-

"An examination of the language of the Regulations makes it clear that the proper exercise of the jurisdiction under Regulation 3 requires, first, the judge to consider whether there has been an unnecessary or improper act or omission. Secondly, the judge has to consider whether costs have been incurred as a result of that unnecessary or improper act or omission by one of the parties. Thirdly, the court has to consider whether it will as a matter of discretion order all or part of the costs so incurred to paid to the other party by the party in default. It is implicit in the last stage that, before an order is made, the judge is required to identify the costs so incurred (that is the costs incurred as a result of the unnecessary or improper act or omission). Having performed those exercises, finally, the judge will have to specify the amount of costs to be paid. There is therefore a formal structure to be followed before an order is made."

9. Mr Richardson submits that the sanction under section 19 is "punitive" and that the court's discretion under section 19 should not be exercised where "the fault is the result of a mistake". He distinguishes a mere mistake or oversight from improper conduct of the case. He points to the fact that the mistake in the present case was an isolated one, in the sense that there was no repetition of it, and that it only caused one adjournment, with no other criticism being made of the conduct of the prosecution: this is in contrast with Denning where there had been repeated failures to review a case which went to the heart of whether the case should proceed. Mr Richardson reminds us that in the days of budget cuts the resources of the CPS and police are more stretched than they were at the time of the Denning decision, and mistakes can easily be made.
10. We reject the submission that a mere mistake without repetition cannot be grounds for an order under section 19. There is no doctrine in this area that every dog is entitled to one bite. If the act or omission giving rise to the application consists of someone on the prosecution side (in Nolan LJ's words) not conducting the case properly, and it causes the defendant to incur additional costs, the discretion arises. Section 19(1) and regulation 3 say nothing about the act or omission having to be repeated. A single mistake, if it can be shown to have caused the defendant to incur costs, is enough to trigger the court's discretion to make an order. We emphasise, however, that section 19(1) creates a discretion, not a duty, and that the jurisdiction is highly fact-sensitive. The court is not bound to make an order in every case of a mistake causing costs to be incurred. If there is a satisfactory explanation for the mistake, the court may decide that it would not be just to make any order.
11. We also reject Mr Richardson's argument based on current pressure on resources. Anyone working in the criminal justice system is aware of that pressure, in many cases on both the prosecution and the defence. But another change since Denning was decided is the introduction of the Criminal Procedure Rules in 2005. These state that the overriding objective of this new code is that criminal cases can be dealt with justly; that dealing with a criminal case justly includes dealing with it efficiently and expeditiously; and that each participant, in the conduct of each case, must prepare and conduct the case in accordance with the overriding objective (Rules 1.1(1), 1.1(2)(e) and 1.2(1)(a) respectively). The culture of adjournment which still plagues the criminal justice system will not be defeated unless in appropriate cases courts are prepared to use their powers to make orders for costs under section 19 of the 1985 Act.
12. In the present case the deputy district judge did not address the interpretation of section 19, having wrongly decided that although the 17^th May hearing had been "wasted" the fact that the defaulter could not be identified precluded any order for costs. The question is then what procedural course is appropriate in this court. Section 31(5), (5A) and (5B) of the Senior Courts Act 1981 provide as follows:-

"(5) If, on an application for judicial review, the High Court quashes the decision to which the application relates, it may in addition

(a) remit the matter to the court, tribunal or authority which made the decision, with a direction to reconsider the matter and reach a decision in accordance with the findings of the High Court, or

(b) submit its own decision for the decision in question.

(5A) But the power conferred by subsection (5)(b) is exercisable only if

(a) the decision in question was made by a court or tribunal.

(b) the decision is quashed on the ground that there has been an error of law, and

(c) without the error, there would have been only one decision which the court or tribunal could have reached.

(5B) Unless the High Court otherwise directs, a decision substituted by it under subsection (5)(b) has effect as if it were a decision of the relevant court or tribunal."

13. Although the case for an order for costs under section 19 was a strong one, we would not go so far as to say that without the error of law there was only one decision which the judge could have reached. But neither party wishes us to remit the application for costs to the magistrates' court. This is for two reasons. The first is that the costs claimed under section 19 are only £864 (£720 plus VAT), a sum which is accepted to be a reasonable one if an order is to be made, and to remit the section 19 application for re-hearing would be disproportionate. The second is that no one has been able to tell us, and the papers in the case (including the note made by the deputy clerk to the justices) do not tell us, who the deputy district judge was. It is generally important for a court to record the name of the judge who makes a decision. The failure to take the relatively simple administrative step of doing so is particularly regrettable because it creates another hurdle to remitting this case. It would be most unfortunate if the remitted application had to be before a judge or bench of justices who had not been present at the 23 May hearing, and thus had to start again from scratch.
14. We therefore agreed, with the consent of both counsel, to proceed, without requiring any further documents to be filed, as though we also had before us an appeal by way of case stated with findings of fact as set out (however informally) in the judge's ruling, the question for our opinion being whether on those facts the determination by the judge of the costs application was correct or incorrect in law. Section 28A(3) of the Senior Courts Act 1981 enables us in those circumstances to reverse, affirm or amend the determination, and to make such other order in relation to the matter (including as to costs) as we think fit.
15. The failure to have any prosecution papers available on 17 May was a clear mistake for which there was no satisfactory explanation and which caused the hearing to be abortive. We consider that an order for costs should have been made. We will therefore reverse the determination and make an order under section 19 of the 1985 Act that the prosecution must pay the defendant's costs incurred in respect of the hearing of 17 May 2013 at Ealing Magistrates' Court, in the sum of £864.