Case No: CO/12449/2013
Neutral Citation Number: [2014] EWHC 2014 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 20/06/2014

Before :

The Lord Chief Justice of England and Wales

Lord Justice Elias
and 
Mr Justice Mitting
- - - - - - - - - - - - - - - - - - - - -
Between:

	R (Director of Public Prosecutions)	Claimant	
	- and -		
	Sheffield Crown Court 	Defendant	
	-and-		
	(1)	Peter Barry Goodison
(2)	Ministry of Justice	Interested Parties	
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
G Treverton-Jones QC (instructed by CPS) for the Claimant
The other parties were not represented at the hearing

Hearing date: 3 April 2014
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Thomas of Cwmgiedd, CJ: 
1.	In June 2011 the first interested party, Mr Goodison, the driver of a bus, and two other drivers, the drivers of a Nissan and the driver of an Isuzu, were involved in an accident in which a pedestrian was killed.  The claimant, the Director of Public Prosecutions (the DPP), decided through the CPS that Mr Goodison should be prosecuted for causing death by careless driving.  He was committed to the Crown Court at Sheffield on 19 June 2012.
2.	Mr Goodison was tried at the Crown Court at Sheffield.  On 6 June 2013 he was acquitted.  After the acquittal the judge determined that the failure to prosecute the other driver involved in the collision and the decision only to prosecute Mr Goodison were improper acts or omissions.  He therefore made an Order that the CPS should pay the costs incurred by Mr Goodison under s.19 of the Prosecution of Offences Act 1985 (the 1985 Act).  The DPP challenges, with the permission of the single judge, the Order by way of an application for judicial review.  We have to consider not only whether the judge erred in law but also whether, even if he did, we have jurisdiction to hear the application in view of sections 28(2) and 29(3) of the Senior Courts Act 1981.
3.	We must briefly set out the facts in a little more detail.
The judge’s initial view of the decision to prosecute and the trial
4.	The trial was initially listed on 1 October 2012. The case was adjourned to 22 April 2013. A judge was assigned to hear the trial.  The judge decided to hold a short hearing in chambers; we were provided with a transcript. The judge expressed the view that the decision to prosecute Mr Goodison should be considered afresh, as in his view it was unfair to prosecute him without also prosecuting the driver of the Isuzu.  He made clear  that he was inclined to invoke the Farquharson Guidelines, guidance originally formulated in 1986 for the CPS in relation to the conduct of a prosecutor but which has since been revised; the guidance, which is not legally binding, refers to the steps a judge should consider taking if he disagrees with the decision of the prosecutor. 
5.	Counsel thereafter spoke to the Senior District Crown prosecutor who told him the case had been reviewed and it should proceed.  On the following day, 23 April 2013, the judge e-mailed the DPP asking him to review the decision to proceed; the judge made it clear in the e-mail that he would be happy to abide by the decision of the DPP.  The DPP agreed that the case would be reviewed by an experienced lawyer, preferably a Crown Advocate.  The judge was informed and the trial was adjourned.
6.	On 10 May 2013 a Crown Advocate within the employ of the CPS reviewed the case. He had no connection with the case or the location of the office where the decision to prosecute had been made. He concluded there was a realistic prospect of conviction of Mr Goodison and that the driver of the Isuzu should not be prosecuted.  That report was reviewed by the Chief Crown Prosecutor and the DPP. The decision was made that the case should proceed.  The judge was informed.  There then followed an e-mail exchange between the judge and the Chief Crown Prosecutor. The judge stated in the e-mails that he would try the case and see what the jury made of it. The trial was re-fixed.
7.	The prosecution called its witnesses, including the drivers of the Nissan and the Isuzu. No application was at any time made to stay the case as an abuse of process; no submission of no case to answer was made at the conclusion of the prosecution case. Mr Goodison gave evidence. The case was then summed up to the jury who acquitted him.
The decision of the judge on costs
8.	After the acquittal the judge told counsel he was considering making the CPS pay the whole of the costs under s.19 of the 1985 Act.  He indicated that his preliminary view was that he could act on his own motion and the failure to prosecute the driver of the Isuzu was “an unnecessary or improper act or omission” and that therefore the CPS should pay the entire costs. As counsel had not been prepared to make submissions on the issue, he decided to make an order under s. 19 of the 1985 Act, with liberty to the CPS to apply if they wished to object.
9.	On the following day he handed down a preliminary judgment, to be made final after hearing submissions later in the month. He set out his reasons for his conclusion that, under Regulation 3.1(b) of the Costs in Criminal Cases (General) Regulation 1986/1335 and Rule 76.8(3)(b) of Crim PR, there were two improper acts or omissions - the failure to proceed against the driver of the Isuzu and the decision only to prosecute Mr Goodison. In making that determination, he applied the law as set out in DPP v Denning (1992) 94 Cr App R. He considered that once it had been decided not to proceed against the driver of the Isuzu car, it was “wholly unfair” to continue against Mr Goodison. He made clear that the review he had requested prior to the trial was not an independent review; it had not been undertaken by counsel and had ignored the views he had expressed to the CPS.  
10.	The Order he made was to the effect the CPS should pay any costs from the time the decision was made not to proceed against the Isuzu driver and that all costs not covered by the order against the CPS should be paid under a defendant’s costs order under s.16(2)(b) of the 1985 Act. 
11.	On 19 June 2013 the CPS lodged written submissions prepared by eminent leading counsel.  The judge subsequently heard oral submissions from both the CPS and from solicitors instructed on behalf of Mr Goodison.  He then finalised and amplified the earlier ruling he had made in a further written ruling dated 12 July 2013. It was no different in substance and it is not necessary to refer to it. 
12.	Mr Goodison took the position that he wanted costs from central funds in the event that the judge decided not to award costs, of his own motion, to be paid by the CPS.  Under the law as it stood at the time, Mr Goodison would recover the same amount whether it was paid by the CPS or out of central funds. When the CPS began these proceedings for judicial review, that position remained the position of Mr Goodison.  He therefore understandably did not appear in the argument before the court.  An important consequence was that only the DPP was represented before us.
The jurisdiction of the judge to make the Order
13.	Under our constitution, as Lord Judge made clear in R v A [2012] EWCA Crim 434, decisions made by the state to prosecute are decisions for prosecutors appointed by the state.  At paragraph 84 he said:
“First, that the decision whether to prosecute or not must always be made by the Crown Prosecution Service and not the court. The court does not make prosecutorial decisions.
Second, provided there is evidence from which the jury may properly convict, it can only be in the rarest circumstances that the prosecution may be required to justify the decision to prosecute.”
14.	It is also well established that when in the rarest of circumstances a challenge is made to the decision to prosecute, it should in general be made before the trial court. The person seeking relief by way of  staying the prosecution must establish abuse of process, including misconduct or oppression as explained in Ex Parte Bennett [1994] 1 AC 42.
15.	Challenges to a prosecutorial decision can, if for some reason there is no available way of challenge before the trial court, exceptionally be made before the Divisional Court on the grounds set out in R v DPP ex p C [1995] 1 Cr App R 136 at 140-141. It is a highly exceptional remedy. Circumstances will rarely justify it: see Sharma v Brown-Antoine [2007] 1 WLR 780; R v Inland Revenue Commissioners ex p Mead [1993] 1 All ER 772; R (Pepushi) v CPS [2004] Imm AR 549; R (Bermingham) v Director of the SFO [2007] 2 WLR 635. Since the institution of the CPS review system, they will be rarer still: see  R (L)v DPP [2013] EWHC 1752 (Admin); R(F) v DPP [2013] EWHC 945 (Admin).
16.	It therefore follows that if a challenge is to be made to the decision to prosecute made by the CPS or other state prosecutors, it must be in the ways we have described.  What a judge has no jurisdiction to do, in our view, is to use s.19 of the 1985 Act at the end of the trial as a means of impugning the prosecutorial discretion given to the DPP and other state prosecutors under our constitution by imposing costs on such prosecutors. It is outwith the power under s.19 of the 1985 Act.  It is not the judge’s role to discipline the DPP for what he considers was an aberrant exercise of prosecutorial discretion.  The ways to challenge the decision to prosecute are clearly established in the cases to which we have referred; those ways cannot be circumvented by an application or decision at the conclusion of the trial to revisit the issue by means of the power under s.19.
17.	That is all that is necessary for the decision in this case. It is neither necessary nor desirable for us to consider other circumstances in a judgment where, although Mr Treverton-Jones QC who appears on behalf of the DPP has drawn all the authorities to our attention, no one has appeared for the party in whose favour the order was made.  We would simply observe that there may be circumstances in which the continuation of a prosecution after the emergence of new material during the trial process might give rise to jurisdiction under s.19 of the 1985 Act. 
18.	We should also emphasise that what we have said applies to the DPP and other state prosecutors, given the constitutional position of such independent prosecutors: see Moss & Son Ltd v CPS [2012] EWHC 3658 at paragraphs 26-31. The issue as to jurisdiction in relation to other prosecutors, such as private prosecutors, may be different: an example of costs being awarded against a private prosecutor in relation to the decision to pursue a prosecution is R (Oddy) v Bugbugs [2003] EWHC 2865 referred to in R v P [2011] EWCA Crim 1130. However even if the position were different in relation to private prosecutions, the circumstances in which such an Order could be made are likely to be very rare indeed.
Does this court have jurisdiction to hear the application for judicial review and quash the Order against the CPS?
(a)	The scope of s.28(2) and 29(3) of the Senior Courts Act 1981
19.	The jurisdiction of this court to review decisions of the Crown Court is governed by s.28(2) and 29(3) of the Senior Courts Act 1981.  S.28(2) provides that the court has no jurisdiction to review “a judgment or other decision of the Crown Court relating to a trial on indictment”.  Under s.29(3):
“In relation to the jurisdiction of the Crown Court, other than its jurisdiction in matters relating to trial on indictment, the High Court shall have all such jurisdiction to make mandatory, prohibiting or quashing orders as the High Court possesses in relation to the jurisdiction of an inferior court.”
20.	The general ambit of the restriction was considered by the House of Lords in In re Smalley [1985] 1 AC 182 and In re Sampson [1987] 1 WLR 194 in the judgments of Lord Bridge of Harwich.  In the second of the cases Lord Bridge said at page 196:
“It is in any event clear, I apprehend, that certain orders made at the conclusion of a trial on indictment are excluded from judicial review as “relating to trial on indictment” not because they affect the conduct of the trial, but rather because they are themselves an integral part of the trial process.  This is obviously true of the verdict and sentence.  It is equally true, according to the provisional view I expressed in In re Smalley, of certain orders for the payment of costs made under the Costs in Criminal Cases Act 1973.”
He continued at page 197:
“An order that a convicted defendant pay the whole or any part of the costs of the prosecution under section 4(1)(a) is appealable under the Criminal Appeal Act 1968 as part of the sentence: Reg. v. Hayden [1975] 1 W.L.R. 852. An order that the prosecutor pay the whole or any part of the costs of an acquitted defendant under section 4(1)(b) is not appealable, nor is any decision under section 3(1) either to make or to refrain from making an order for payment of costs out of central funds in favour of the prosecution or the defence. The common characteristic of all decisions made by the Crown Court under these provisions is that the court is exercising a discretion in the light of what it has learned in the course of the trial as to the nature of the case, both for the prosecution and the defence, and in the light of the conduct and the outcome of the trial itself: see the guidance given by the Practice Direction (Costs: Acquittal of Defendant) [1981] 1 W.L.R. 1383. It follows that all such decisions are so intimately bound up with the trial process that they must be treated as an integral part of it and thus must be considered as made in the exercise of the Crown Court's Jurisdiction “relating to trial on indictment” and accordingly are not subject to judicial review.”
21.	The application of these provisions have been considered in a number of cases, most recently in Hunter v Newcastle Crown Court [2014] QB 94.
22.	In his submissions to us Mr Treverton-Jones QC emphasised how extraordinary it would be if the court had no jurisdiction to correct what the judge had done in imposing a liability on the CPS in circumstances where the judge’s decision could not be said to be “an integral part of the trial process”, but related to a prior decision antecedent to the trial. 
(b)	The applicability of s. 28(2) and s. 29(3) of the Senior Courts Act 1981
23.	In R v Maidstone Crown Court ex p London Borough of Harrow [2000] 1 Cr App R 117 [2000] QB, Mitchell J set out the applicable principles as to whether the decision under challenge was a decision made without jurisdiction in the context of s.28(2) and s.29(3) of the Senior Courts Act 1981.  He concluded, and we agree, that if there was no jurisdiction for the judge to make the order under s.19 of the 1985 Act, no question could arise as to the lack of this court’s jurisdiction under s.28 (2) of the Senior Courts Act 1981 to set aside the Order of the judge.
24.	In our judgment for the reasons we have set out the judge had no jurisdiction to make the order he did. It follows therefore that this court has jurisdiction and can quash that part of the Order awarding costs against the CPS.
 (c)	The other submissions.
25.	Mr Treverton-Jones QC contended that an order under s.19 of the 1985 Act was an order that could be made at any stage of the proceedings and was entirely independent of the result of the trial.  It could not therefore be described as “an integral part of the trial process”. Nor, adopting the purposive approach set out in Smalley, could there be any reason why a party adversely affected by the s.19 order should not have a remedy by way of judicial review.  He therefore contended as his alternative submission that any order made under s.19 of the 1985 Act did not therefore relate to a trial on indictment. 
26.	In the light of our decision we would observe that although this approach might assist in relation to a decision on costs made at the end of the trial, the position would be very different if an order under s.19 was made in the course of the trial in respect of costs that had arisen, for example, when a witness had not been warned and time was lost.  Mr Treverton-Jones QC accepted that it was difficult to contend that an order for costs arising out of a delay in the trial would not be an order relating to a trial on indictment. 
27.	It was contended in the alternative by Mr Treverton-Jones QC that the way in which the judge had approached the matter was so deficient that for that reason the court lacked jurisdiction. The judge had not applied the right test for determining what had happened was an improper act or omissions (and had proceeded to reach a conclusion without first hearing argument).   In the light of our conclusion on the primary ground it is not necessary for us to consider this contention.
The meaning “improper act or omission”
28.	As we have set out in the judgment given by the judge in this case he relied upon the definition of “improper” set out in the decision of the Divisional Court in DPP v Denning.  Although we have determined that the order must be quashed as the judge had no jurisdiction to make it,  it is important to draw attention to the later decision of the Court of Appeal in Ridehalgh v Horsefield [1994] Ch 205 where Sir Thomas Bingham, MR (as he then was), gave the following definition at page 232:
“”Improper” means what it has been understood to mean in this context for at least half a century.  The adjective covers, but is not confined to, conduct which would ordinarily be held to justify disbarment, striking off, suspension from practice or other serious professional penalty.  It covers any significant breach of a substantial duty imposed by a relevant code of professional conduct.  But it is not in our judgment limited to that.  Conduct which would be regarded as improper according to the consensus of professional (including judicial) opinion can be fairly stigmatised as such whether or not it violates the letter of a professional code.”
29.	It is clear from a further passage in the judgment of the court at page 239 that this was meant to apply to criminal as well as civil cases.  Sir Thomas Bingham said at 239:
“We therefore hope that this judgment may give guidance which will be of value to criminal courts as to civil, but we fully appreciate that the conduct of criminal cases will often raise different questions and depend on different circumstances.”
30.	We therefore wish to express our agreement with the view recently expressed by Simon J in his ruling in R v Geoffrey Counsell given at the Crown Court at Bristol on 13 March 2014 when he made clear that the test for impropriety is the rigorous test as set out in Ridehalgh and not the test set out in Denning.
Conclusion
31.	It follows that so much of the Order made by the judge as was made against the CPS under s.19 of the 1985 Act must be quashed. That part of the Order which provided that costs not recovered from the CPS could be recovered from central funds stands. Mr Goodison is therefore entitled to recover such costs from central funds in the amount ordered by the judge.