England and Wales High Court (Administrative Court) Decisions

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

		2 Redcliff Street Bristol BS1 6GR
		28 March 2014

1. MR JUSTICE DINGEMANS: This is the hearing of Cases Stated by the Justices for the county of Gloucestershire. The Cases Stated raise, in respect of each appellant, the issue of whether the discretion exercised by the Magistrates in imposing costs in the sum that they did was wrong in principle, unreasonable and out of step with the fine imposed and the defendant's ability to pay within a reasonable time.
2. The costs orders were made by the Magistrates, sitting at the Cheltenham Magistrates' Court on 26th April 2016, following conviction of the appellants for various offences on their own pleas of guilty. The appellants were Mark Kalman Major ("Mr Major"), Richard Edward Whitehouse ("Mr Whitehouse"), Saba Sibolia, ("Mr Sibolia"), Yobaz Ullah ("Mr Ullah") and John Wynn-Jones ("Mr Wynn-Jones"). They had been investigated for tachograph offences as drivers of Gilders Transport Ltd ("Gilders Transport"). Gilders Transport are livestock transporters and operate from premises near Cheltenham.
3. The respondent, the Driver and Vehicle Standards Agency ("the DVSA"), carried out an investigation into Gilders Transport and drivers in respect of the offences. Some 15 drivers, including the five appellants, pleaded guilty to various tachograph offences.
4. The DVSA incurred investigation costs of £82,445 and solicitor's cost of £4,000. The DVSA applied for an order for costs. The approach taken by the Magistrates was to divide the total sum of costs by the 101 offences. This yielded a sum of costs attributable to each offence. Some of the 101 offences were not proceeded with and the prosecution bore those costs because they were not attributable to an offence in respect of which there had been a conviction.
5. The Magistrate then made the following orders. Mr Major was fined £550 and ordered to pay £5,000 costs. Mr Whitehouse was fined £500 and ordered to pay £3,400 costs. Mr Sibolia was fined £300 and ordered to pay costs of £2,500. Mr Ullah was fined £450 and ordered to pay costs of £1700 and finally, Mr Wynn Jones was fined £3,000 and ordered to pay costs of £850. The victim surcharge orders were imposed.
6. The power to order costs in the Magistrates' Court is governed by the provisions of the Prosecution of Offenders Act 1985. Section 18(1) provides that the Justices may make "such order... as they consider just and reasonable".
7. There is a Practice Direction, dated 29th September 2015. This provides at paragraph 3.7 that any costs order should not ordinarily be greatly at variance with any fine imposed.
8. The issue of costs ordered to be paid by to prosecutors has been the subject of previous decisions and there was no dispute in the written submissions adduced by the appellants and respondents about the applicable principles.
9. In R v Whalley (1972) 56 Cr App R 304 at 305 the court said:

"This Court takes the view that of course whenever a Court is imposing a financial penalty, or making an order in regard to costs, it must have regard to the means of the individual against whom the order is going to be made. That does not necessarily mean that a very detailed examination of all his finances has to be entered into by the Court. In the ordinary case a Court can make a reasonable assessment of the sort of sum that a man is able to pay."

In R v Nottingham Justices ex parte Farman (1986) 151 JPR 49, it was noted that any order for costs ought to be payable within a period of 12 months and it was said that the costs and fines should be kept instep and the order as made should be within the means of the person so ordered.

11. In R v Northallerton Magistrates ex parte Dove [2001] Cr App R (S) 136, Lord Bingham CJ set out a number of propositions which were derived from the authorities. So far as is material these included:

"(1) An order to pay costs to the prosecutor should never exceed the sum which, having regard to the defendant's means and any other financial order imposed upon him, the defendant is able to pay and which it is reasonable to order the defendant to pay."

The fourth principle was:

"(4) While there is no requirement that any sum ordered by justices to be paid to a prosecutor by way of costs should stand in any arithmetical relationship to any fine imposed, the costs ordered to be paid should not in the ordinary way be grossly disproportionate to the fine. Justices should ordinarily begin by deciding on the appropriate fine to reflect the criminality of the defendant's offence, always bearing in mind his means and his ability to pay, and then consider what, if any, costs he should be ordered to pay to the prosecutor."

12. It was noted that if the costs and fine would exceed a sum which the defendant could reasonably pay the proper approach was to reduce the costs rather than the fine. Lord Bingham also noted that it was for the defendant to disclose relevant information about his means, that the court should give a defendant a fair opportunity to adduce relevant evidence and address that point.
13. These propositions have been distilled in the Magistrates' Courts Sentencing Guidelines which so far as material provide that:

"An order for costs should never exceed the sum which having regard to the offender's means... he or she is able to pay and the costs ordered to be paid should not be grossly disproportionate to any fine imposed for the offence."

14. The appellants object to the order for costs made by the Magistrates, contending that they were unjust and unreasonable orders, beyond the means of the appellants to pay and greatly at variance with the individual fines imposed. It should be noted the DVSA, who had made written submissions but did not appear before us today, raise the issue of whether this appeal should have been by way of judicial review and not appeal by way of Case Stated.
15. The normal remedy available to appellants in the Magistrates' Court would be by way of appeal to the Crown Court, which involves a rehearing. However, this remedy was not available because such a right of appeal is excluded pursuant to the provisions of section 108 of the Magistrates' Court Act 1980. This meant that the appellant could pursue their complaints about the costs orders made by the Magistrates, either by way of judicial review or by way of Case Stated. Previous judgments have considered the advantages of the respective routes and there have been suggestions that where there is a general issue of fairness, proceedings by way of judicial review are more appropriate. It is not necessary for us to deal with this matter because it is quite apparent that the appellants are entitled to bring this case by way of Case Stated.
16. The Case Stated procedure allows the Magistrates' Court to set out the facts and processes followed. However, the procedure means that this court is restricted to the facts set out in the Case Stated. This explains why applications are sometimes made to quash or amend draft cases compare Oldham v DPP [2014] EWHC 3495 (Admin).
17. We note that the powers of this court on a Case Stated are set out in section 28A of the Senior Courts Act 1981. This provides that the court shall:

"(a) reverse, affirm or amend the determination in respect of which the case has been stated or

(b) remit the matter to the Magistrates' Court or the Crown Court with the opinion of the High Court and may make such order in relation to the matter including as to costs as it thinks fit."

18. There was no issue about the reasonableness of the sums incurred by way of investigation and solicitor's costs. It is well known that the investigation of tachograph offences requires considerable time and expertise. There was no issue taken about the decision by the Magistrates to divide the costs by the number of offences and to attribute a portion of the costs to each offence. In the particular circumstances of this case, where the investigation of each offence was likely to yield a similar sum by way of investigation costs, that was a reasonable and sensible approach to take.
19. The first issue raised by Mr Thomas, who did not appear below and to whom we are grateful for his submissions in the appeal, is whether the order for costs would be beyond the means of the appellants to pay within a reasonable time. In the grounds of appeal and skeleton arguments reference was made to Statements of Means submitted by the Magistrates. There was a reference in paragraphs 10 and 11 of the case to the Statements of Means.
20. However, in the Case Stated there was no reference to the content of the Statements of Means, nor were there any findings of facts in relation to the Statements of Means, namely whether the Magistrates accepted the figures in the statement of means, accepted the figures with qualifications, or rejected the figures. The Case Stated simply records that the defendant for each Case Stated was able to pay such costs within a reasonable time. As noted above, we are on the Case Stated procedure restricted to the information set out in the Case Stated. In these circumstances there is not, on the material before us, anything to suggest that the Magistrates made an error of law in their approach to the applicable illegal principles relating to the means of the appellants.
21. However, it was apparent that there was a substantial disparity between the order for costs made and the fines imposed in respect of some of the appellants. There is no arithmetical formula to be applied between the fine and costs, but the order for costs must not be grossly disproportionate to the fines involved.
22. In this case it is apparent from the figures set out above that the order for costs is grossly disproportionate to the fines involved for some of the appellants. This is particularly so in the case of Mr Major, where a fine of £550 was followed by a costs order for £5,000 (some nine times the amount). It was also apparent in the case of Mr Whitehouse, where the order for costs was some seven times the amount of the fine, and also for Mr Sibolia where the order for costs was some eight times the amount of the fine.
23. In these circumstances, the proper approach is to quash these orders and to remit the issue to be considered by the Magistrates in the light of the judgment.
24. So far as Mr Ullah is concerned, where his costs orders was some four times amount of the fine and Mr Wynn Jones, where his costs order was three times the amount of the fine, the position is less clear. However, we note that the issue of grossly disproportionate costs cannot have been considered in relation to the first three appellants and although these orders in respect of Mr Ullah and Mr Wynn Jones might have been considered not to have been grossly disproportionate the Magistrates equally might have considered that they were. Given the approach taken by the Magistrates to the first three appellants, which shows that they could not have considered this issue of proportionality in a clear and principled manner (otherwise they would not have made those orders) we consider that the proper approach is to quash the orders made in this case so far as these further two appellants are concerned and to remit the issue to be reconsidered by the Magistrates, in the light of this judgment and the principles that we have set out. These principles include the point about offender's means and reasonableness of the sum to be paid.
25. Therefore, for the detailed reasons set out above, we shall quash and set aside the orders for costs made by the Magistrates and remit the issue of costs to be determined by the Magistrates in the light of the principles set out in the judgment.
26. SIR GEOFFREY VOS, CHANCELLOR: I agree and the order made proposed by my Lord will therefore be made.
27. Mr Thomas, what do you say about costs?
28. MR THOMAS: My Lords, there is an application for costs. I do ask given the decision to remit the case to the Magistrates for their consideration, the appropriate order for the costs is made for the appellants. I do have a costs schedule.
29. SIR GEOFFREY VOS, CHANCELLOR: Do we have power to grant costs in your favour. Against whom are we granting costs?
30. MR THOMAS: We would ask for costs from Central Funds in this case.
31. SIR GEOFFREY VOS, CHANCELLOR: What about section 16A of the Prosecution of Offenders Act 1985?
32. MR THOMAS: The part of that Act I was going to order for costs under the section 16(5)(a).
33. SIR GEOFFREY VOS, CHANCELLOR: Then look at section 16A. Is it in your bundle?
34. MR THOMAS: Yes, it is at page 16.
35. SIR GEOFFREY VOS, CHANCELLOR: That is very helpful. Thank you. This is out of date. Just go on line to Westlaw or something and bring up the Prosecution of Offenders Act. I have to say, it is no great magic on our part. The point has been very helpfully drawn to our attention by the Administrative Costs Office.
36. MR THOMAS: I am unable to access the Internet in this court (Pause).
37. SIR GEOFFREY VOS, CHANCELLOR: Have you got it?
38. MR THOMAS: It is loading very slowly.
39. SIR GEOFFREY VOS, CHANCELLOR: As you read a bit of your segment out for us, let me read out section 16A(1):

"A defendant's costs order may not require a payment out of Central Funds of an amount that includes an amount in respect of the accused's legal costs, subject to the following provisions of this section."

Then the following provisions are if conditions (a), (b), (c) or (d) are met. Having gone through it, albeit very quickly I could not see an order whereby we could make an order for costs in your favour but I am very happy to be persuaded that is wrong.

40. MR THOMAS: If my Lords would give me a moment to access --
41. SIR GEOFFREY VOS, CHANCELLOR: Would it be sensible if we just rise for 5 minutes to enable you to look the point up. We do not want to deprive you of the opportunity to argue it. So we will take 5 minutes. If we come back at 10.20, unless you send a message that you would prefer to have a little more time.
42. MR THOMAS: Yes. Thank you very much.
(A short while later)
43. SIR GEOFFREY VOS, CHANCELLOR: Yes Mr Thomas, did you get your Internet working?
44. MR THOMAS: I did my Lord, with help from the Court Service. I do not make any further application in relation to our costs.
45. MR JUSTICE DINGEMANS: This provision appears to have been inserted by LASPO which has removed various rights to make applications.
46. SIR GEOFFREY VOS, CHANCELLOR: Very good. Thank you very much for your help Mr Thomas.