QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
THE HON MR JUSTICE GOSS
| THE QUEEN on the application of AIDEN HENDERSON
|- and -
|SECRETARY OF STATE FOR JUSTICE
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Rosemary Davidson (instructed by The Treasury Solicitor) for the Defendant
Hearing date: 20 January 2015
Crown Copyright ©
Lord Justice Burnett:
i) section 16A of the 1985 Act is incompatible with the articles 6 and 14 of the Convention and in consequence seeks a declaration of incompatibility pursuant to section 4 of the Human Rights Act 1998;
ii) section 16A is in conflict with the 1688 Bill of Rights and common law notions of fairness, balance and justice with the result that the courts should fashion a new common law entitlement to costs despite the statutory prohibition;
iii) that the court should order compensation to the claimant for the costs he incurred in defending himself, with the amount to be determined on a detailed assessment.
Defendant's Costs Orders in the Crown Court
"16. – Defence costs.
(1) Where –
(a) an information laid before a justice of the peace for any area, charging any person with an offence, is not proceeded with;
(c) a magistrates' court dealing summarily with an offence dismisses the information;
that court or, in a case falling within paragraph (a) above, a magistrates' court for that area, may make an order in favour of the accused for a payment to be made out of central funds in respect of his costs (a "defendant's cost order").
(2) Where –
(a) any person is not tried for an offence for which he has been indicted or sent for trial; or
(b) any person is tried on indictment and acquitted on any count in the indictment;
the Crown Court may make a defendant's costs order in favour of the accused.
(3) Where a person convicted of an offence by a magistrates' court appeals to the Crown Court under section 108 of the Magistrates' Court Act 1980 (right of appeal against conviction or sentence) and, in consequence of the decision on appeal–
(a) his conviction is set aside; or
(b) a less severe punishment is awarded;
the Crown Court may make a defendant's costs order in favour of the accused.
(4) Where the Court of Appeal–
(a) allows an appeal under Part I of the Criminal Appeal Act 1968 against–
(ii) a verdict of not guilty by reason of insanity; or
(iii) a finding under the Criminal Procedure (Insanity) Act 1964 that the appellant is under a disability, or that he did the act or made the omission charged against him;
(aa) directs under section 8(1B) of the Criminal Appeal Act 1968 the entry of a judgment and verdict of acquittal;
(b) on an appeal under that Part against conviction–
(i) substitutes a verdict of guilty of another offence;
(ii) in a case where a special verdict has been found, orders a different conclusion on the effect of that verdict to be recorded; or
(iii) is of the opinion that the case falls within paragraph (a) or (b) of section 6(1) of that Act (cases where the court substitutes a finding of insanity or unfitness to plead);
(c) on an appeal under that Part against sentence, exercises its powers under section 11(3) of that Act (powers where the court considers that the appellant should be sentenced differently for an offence for which he was dealt with by the court below);
(d) allows, to any extent, an appeal under section 16A of that Act (appeal against order made in cases of insanity or unfitness to plead);
the court may make a defendant's costs order in favour of the accused.
(4A) The court may also make a defendant's costs order in favour of the accused on an appeal under section 9(11) of the Criminal Justice Act 1987.
(a) any proceedings in a criminal cause or matter are determined before a Divisional Court of the Queen's Bench Division;
(b) the Supreme Court determines an appeal, or an application for leave to appeal, from such a Divisional Court in a criminal cause or matter;
(c) the Court of Appeal determines an application for leave to appeal to the Supreme Court under Part II of the Criminal Appeal Act 1968; or
(d) the Supreme Court determines an appeal, or application for leave to appeal, under Part II of that Act;
the court may make a defendant's costs order in favour of the accused.
(6) a defendant's costs order shall, subject to the following provisions of this section, be for the payment out of central funds, to the person in whose favour the order is made, of such amount as the court considers reasonably sufficient to compensate him for any expenses properly incurred by him in the proceedings.
(6A) Where the court considers that there are circumstances that make it inappropriate for the accused to recover the full amount mentioned in subsection (6), a defendant's costs order must be for the payment out of central funds of such lesser amount as the court considers just and reasonable.
(6B) Subsections (6) and (6A) have effect subject to–
(a) section 16A, and
(b) regulations under section 20(1A)(d).
(6C) when making a defendant's cost order, the court must fix the amount to be paid out of central funds in the order if it considers it appropriate to do so and–
(a) the accused agrees the amount, or
(b) subsection (6A) applies.
(6D) Where the court does not fix the amount to be paid out of central funds in the order–
(a) it must describe in the order any reduction required under subsection (6A), and
(b) the amount must be fixed by means of a determination made by or on behalf of the court in accordance with procedures specified in regulations made by the Lord Chancellor.
(10) Subsection (6) above shall have effect, in relation to any case falling within subsection (1)(a) or (2)(a) above, as if for the words "in the proceedings" there were substituted the words "in or about the defence".
(11) where a person ordered to be retried is acquitted at his retrial, the costs which may be ordered to be paid our of central funds under this section shall include–
(a) any costs which, at the original trial, could have been ordered to be so paid under this section if he had been acquitted; and
(b) if no order was made under this section in respect of his expenses on appeal, any sums for the payment of which such an order could have been made.
16A Legal costs
(1) A defendant's costs order may not require the 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.
(2) Subsection (1) does not apply where condition A, B or C is met.
(3) Condition A is that the accused is an individual and the order is made under–
(a) section 16(1)
(b) section 16(3), or
(c) section 16(4)(a)(ii) or (iii) or (d).
(4) Condition B is that the accused is an individual and the legal costs were incurred in proceedings in a court below which were–
(a) proceedings in a magistrates' court, or
(b) proceedings on an appeal to the Crown Court under section 108 of the Magistrates' Court Act 1980 (right of appeal against conviction or sentence).
(5) Condition C is that the legal costs were incurred in proceedings in the Supreme Court.
(6) the Lord Chancellor may by regulations make provision about exceptions from the prohibition in subsection (1), including–
(a) provision amending this section by adding, modifying or removing an exception, and
(b) provision for an exception to arise where a determination has been made by a person specified in the regulations.
(7) Regulations under subsection (6) may not remove or limit the exception provided by condition C.
(8) where a court makes a defendant's costs order requiring the payment out of central funds of an amount that includes an amount in respect of legal costs, the order must include a statement to that effect.
(9) Where, in a defendant's costs order, a court fixes an amount to be paid out of central funds that includes an amount in respect of legal costs incurred in proceedings in a court other than the Supreme Court, the latter amount must not exceed an amount specified by regulations made by the Lord Chancellor.
(10) In this section–
"legal costs" means fees, charges, disbursements and other amounts payable in respect of advocacy services or litigation services including, in particular, expert witness costs;
"advocacy services" means any services which it would be reasonable to expect a person who is exercising, or contemplating exercising, a right of audience in relation to any proceedings, or contemplated proceedings, to provide;
"expert witness costs" means amounts payable in respect of the services of an expert witness, including amounts payable in connection with attendance by the witness at court or elsewhere;
"litigation services" means any services which it would be reasonable to expect a person who is exercising, or contemplating exercising, a right to conduct litigation in relation to proceedings, or contemplated proceedings, to provide."
"(5A) Condition D is that –
(a) the accused is an individual,
(b) the order is made under section 16(2),
(c) the legal costs were incurred in relevant Crown Court proceedings, and
(d) the Director of Legal Aid Casework has made a determination of financial ineligibility in relation to the accused and those proceedings
(and condition D continues to me met if the determination is withdrawn)."
"(2) Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
(3) Everyone charged with a criminal offence has the following minimum rights:
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require."
"… the Court observes firstly that the Convention does not grant to a person "charged with a criminal offence" but subsequently acquitted a right either to reimbursement of costs incurred in the course of criminal proceedings against him, however necessary these costs might have been … Such a right can be derived neither from Article 6(2) nor from any other provision of the Convention or its Protocols. It follows that the question whether such a right can be said in any particular case to exist must be answered solely with reference to domestic law."
The statement has been repeated, including in Hussain v United Kingdom (2006) 43 EHRR 22 at paragraph . The Strasbourg Court has stated consistently that the Convention recognises no right to recover costs incurred in a criminal defence.
"On the basis of these cases, the Court considers that, in the context of defendants' costs orders, the Convention organs have consistently applied the following principles. First, it is not the Court's role to decide whether a defendant's costs order should have been made in any given case. Secondly, it is not for the Court to determine whether, in granting or refusing such an order, the trial judge has acted compatibly with the relevant Practice Direction … . Thirdly, the Court's task is to consider whether, in refusing to make an order, the trial judge's reasons indicate a reliance on suspicions as to the applicant's innocence after the applicant has been acquitted. Fourthly, the Convention organs have found that it is not incompatible with the presumption of innocence for a trial judge to refuse to make an order because he or she considers that the applicant has brought suspicion on himself and misled the prosecution into believing that the case against him or her was stronger than it was in reality. This will also be the case if the applicant brought the prosecution upon himself because he availed himself of the right to silence. Finally, the refusal to make an order does not amount to a penalty for exercising that right." (paragraph )
"80. Since 1 October 2012, defendants in the Crown Court have not been able to claim their private legal costs from Central Funds on acquittal. The reason for this is that at present, every defendant has access to legal aid and so the state will not reimburse a choice to pay privately. In the magistrates' courts, those who are not entitled to legal aid because their income is too high are entitled to reimbursement on acquittal at legal aid rather than private rates. There were a number of reasons for changing the rate of reimbursement from private rates to legal aid rates, including that:
... it is not considered right for the taxpayer to bear significantly greater costs for a privately-paying defendant or appellant than for one who is legally aided;
... if an individual chooses a very expensive private lawyer, we do not believe that the taxpayer should indemnify them simply because the individual was willing to pay more;
... money spent compensating successful defendants at private rates is money that would not be available to provide publicly funded legal services to those most in need of them; and
... capping recoverable legal costs from Central Funds at legal aid rates helps to ensure greater parity between legal aid payments and payments to acquitted defendants from Central Funds. We think that this is fair to the individual and fair to the taxpayer.
81. Our proposal in the consultation was to reintroduce reimbursement (at legal aid rates) to acquitted defendants who apply for, but are no longer entitled, to legal aid in the Crown Court as a result of the threshold. We consider that even though this will cost the public purse it is a fair change to make, given that defendants excluded from legal aid by the threshold will need to pay privately. Ineligible Crown Court defendants will therefore be treated on the same basis as those in the magistrates' courts.
82. However, we do not consider that it is right or necessary to go further and reimburse at full or reasonable private rates for the reasons set out above. The changes to Central Funds have been approved by Parliament in the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
83. Given the continuing challenging fiscal environment, a key objective of the Transforming Legal Aid programme is to deliver savings and we must also be mindful of the risk of reducing the savings expected from the reforms to Central Funds implemented in October 2012"
The Bill of Rights and a Common Law Power to Award Costs
"Grants of Fines, &c. before Conviction, &c.
And severall Grants and Promises made of Fines and Forfeitures before any Conviction or Judgement against the Persons upon whome the same were to be levyed. All which are utterly directly contrary to the knowne Lawes and Statutes and Freedome of this Realme."
This recital was concerned with fines and forfeiture being levied unlawfully; with the arbitrary abuse of royal power. The Act then provides
That levying Money for or to the Use of the Crowne by pretence of Prerogative without Grant of Parlyament for longer time or in other manner then the same is or shall be granted is Illegall."
"Grants of Forfeitures.
That all Grants and Promises of Fines and Forfeitures of particular persons before Conviction are illegall and void."
None of these provisions can be interpreted as being concerned with questions of who should bear the costs of proceedings before the various courts then established in England and Wales.
"Subject to the provisions of this or any other Act and to rules of court, the costs of and incidental to all proceedings in the civil division of the Court of Appeal and in the High Court … shall be in the discretion of the court, and the court shall have full power to determine by whom and to what extent the costs are to be paid."
"But still more important, in the present context, is the special constitutional convention which jealously safeguards the exclusive control exercised by Parliament over both the levying and the expenditure of the public revenue. It is trite law that nothing less that clear, express and unambiguous language is effective to levy a tax. Scarcely less stringent is the requirement of clear statutory language for public expenditure. As it was put by Viscount Haldane in Auckland Harbour Board v. The King  AC 318, 326:
'It has been a principle of the British Constitution now for more than two centuries … that no money can be taken out of the consolidated Fund into which the revenues of the state have been paid, excepting under a distinct authorisation from Parliament itself.'"
"… I hope I have said enough to explain why I cannot attribute to the legislature any general willingness to provide the kind of publicly funded safety net which the judiciary would like to see in respect of costs necessarily and properly incurred by a litigant and not otherwise recoverable. It is for this reason that I find it impossible to say that whenever the legislature gives a right of appeal … in circumstances where a successful appellant may be unable to recover his costs from any other party, that affords sufficient ground to imply a term enabling the court to order the costs to be paid out of public funds. The strictly limited range of the legislation expressly authorising payment of costs out of central funds in criminal proceedings no more lends itself to an extension by judicial implication than does the equally limited range of legislation authorising payment of costs out of the legal aid find in civil proceedings. Some general legislative provision authorising public funding of otherwise irrecoverable costs in all proceedings … would no doubt be an admirable step in the right direction which the judiciary would heartily applaud. But that does not, in my opinion, justify the courts in attempting to achieve some similar result by the piecemeal implication of terms giving power to order payment of costs out of central funds in particular statutes…
The courts must always resist the temptation to engage, under the guise of statutory interpretation, in what is really judicial legislation, but that is particularly important in a sensitive constitutional area, such as that with which we are here concerned, where we should be scrupulous to avoid trespassing on parliamentary ground … I find it difficult to visualise any statutory context in which such a jurisdiction could be conferred by anything less than clear terms." (40D to 41C)
i) I would refuse permission to apply for judicial review on the grounds as formulated in paragraph 4(ii) and (iii) above, and discussed between paragraphs  and ;
ii) I would grant permission to apply for judicial review for the purposes of seeking a declaration of incompatibility under section 4 of the Human Rights Act in respect of the statutory scheme as it applied from 27 January 2014 (in addition to the period from 1 October 2012 for which permission was granted on the papers);
iii) I would dismiss the claim for judicial review.
Mr Justice Goss