England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		20 May 2015

1. MR JUSTICE WILLIAM DAVIS: This is an appeal by way of case stated from a decision of the Crown Court at Derby. The appellant seeks an extension of time for filing his appeal notice and we grant that extension.
2. On 5 April 2013, the appellant was stopped by a police officer as he was driving a car in which there were some parcels. He produced a valid certificate of insurance in relation to that car, but the insurance cover did not extend to business use of the car. Because there were parcels in the car the police officer came to the conclusion that the car was being used for the purposes of a business.
3. In August 2013 a summons was issued against the appellant in relation to an alleged offence of no insurance. The summons was heard by the Derby Magistrates' Court on 11 November 2013. The appellant was not present; he was convicted in his absence. The magistrates plainly decided that the parcels in the car was evidence of business use. To be fair to them they had no evidence from the appellant to contradict this or to explain the parcels.
4. As often happens when someone is convicted in his absence it was a considerable time before any further steps were taken. It was not until 2 September 2014 that a notice of appeal against conviction was lodged in the Crown Court at Derby. It was very substantially out of time. However, no point was taken by the prosecution and leave was given to pursue the appeal.
5. On 18 September 2014, there was a pre-appeal review hearing in the Crown Court. In the course of the hearing the appellant was ordered to serve any evidence on which he intended to rely, in relation to the use of the car, by 25 September. The prosecution were then to indicate by 2 October if the appeal was to be resisted. If the prosecution indicated that they did not intend to resist the appeal, the matter could have then been dealt with without any party being required to attend any further hearing. The order was that otherwise the appeal was to be listed for hearing on 10 October.
6. The appellant duly served his evidence and it showed that the carriage of the parcels was wholly unconnected with any business. However, the prosecution did not then indicate that the appeal would not be resisted. They appear to have indicated nothing at all. So it was that on 10 October the appeal was listed for hearing before a Circuit Judge and two lay justices sitting in the Crown Court at Derby.
7. We have been told that the prosecution counsel indicated to counsel for the appellant that he (prosecution counsel) accepted that there was no evidence to support business use of the car by the appellant, but that he had instructions not to concede the appeal there and then because of a policy of the Crown Prosecution Service that it was not appropriate to offer no evidence in any case where there has been a conviction after trial in a Magistrates' Court. Whatever it was that passed between counsel, certain it is that no evidence of business use was called in the course of the appeal hearing and the appeal was duly allowed after a submission of no case at the close of the respondent prosecutor's case.
8. I pause to make this observation: in January 2015 my Lord, the President of the Queen's Bench Division, published his review of "Efficiency in Criminal Proceedings". He identified four overarching principles of the review, the first of which was getting it right first time. Whilst the proceedings in the lower courts in this instance predated the publication of the review, that first over-arching principal was in reality a restatement of what was and should have been existing good practice.
9. This case is a prime example of getting it wrong first time. More to the point, once it became clear that a mistake had been made the prosecution continued to get it wrong. Had the prosecution indicated they had no evidence to offer in resisting the appeal, the case would not have required Derby Crown Court to list the case for a full appeal hearing. That would have saved the costs of representation; it would have freed the court's time for other work.
10. The hearing on 10 October served no useful purpose at all. If the Crown Prosecution Service in Derby, or indeed anywhere else, has a policy of the kind, to which I have referred previously, it is quite wrong and it should be changed forthwith. In any criminal proceedings at whatever level the prosecution must keep under review throughout whether there is evidence sufficient to justify a continuation of the proceedings. If there is not, no further evidence should be offered. There is no principle that requires a prosecutor to resist an appeal from a Magistrates' Court when it becomes apparent that the basis of a conviction is no longer tenable. The fact that a lower court has made a finding leading to a conviction does not prevent the prosecution taking the proper course.
11. In any event, at the conclusion of the hearing on 10 October counsel for the appellant made an application for costs. The application he made was for a defendant's costs order for payment of costs out of Central Funds. Because the proceedings were on an appeal from the Magistrates' Court, those costs included an amount in respect of the appellant's legal costs both in the court below, so far as he had any, and in the Crown Court.
12. The case fell within the exception to the provision of section 16A(1) of the Prosecution of Offences Act 1985. Generally such an order cannot include an amount for legal costs. Because this case fell within condition B, as defined in section 16A(4) of that Act, the appellant's legal costs were recoverable. No other application for costs was made at that hearing. No reference to any other kind of application was made. What followed I shall rehearse shortly, but insofar as an application for costs was to be made, or indeed indicated, that was the point at which to do it.
13. What then happened was that on 14 October the appellant issued a written application for costs against the Crown Prosecution Service under section 19 of the 1985 Act. The relevant part of the section is as follows:

"(1)The Lord Chancellor may by regulations make provision empowering magistrates' courts, the Crown Court and the Court of Appeal, 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.

(2) Regulations made under subsection (1) above may, in particular—

(a) allow the making of such an order at any time during the proceedings;..."

14. The relevant regulations are the costs in Criminal Cases (General) Regulations 1986. Regulation 3(1) is in these terms:

"3—(1) Subject to the provisions of this regulation, where at any time during criminal proceedings—

(a) a magistrates' court

(b) the Crown Court, or

(c) the Court of Appeal

is satisfied that costs have been incurred in respect of the proceedings by one of the parties as a result of an unnecessary or improper act or omission by, or on behalf of, another party to the proceedings, the court may, after hearing the parties, order that all or part of the costs so incurred by that party shall be paid to him by the other party."

15. The application came before HHJ Gosling. On 20 November he heard submissions on behalf of the appellant and the prosecution. He was not the judge who had heard the appeal. Therefore, he was not the judge who had made the order for payment of the appellant's costs out of Central Funds. It was in practical terms impossible for that judge, HHJ Rafferty QC, to sit again in Derby within a reasonable time, and the application was released to HHJ Gosling.
16. There was a further complication. Neither of the justices who sat with the previous judge could be made available easily, so HHJ Gosling, with the consent of both parties, heard the application sitting alone. HHJ Gosling provided a full written ruling, which he was able to hand down on the same day as the hearing of the submissions. He accepted that the history of the case provided the appellant with a persuasive case for payment of his costs by the prosecution. For what it is worth I agree with HHJ Gosling. However, HHJ Gosling decided that the effect of section 19 and the regulations made thereunder was to prevent the application being considered by the Crown Court once the appeal had been allowed and the hearing of the appeal had concluded. In particular, section 19(2) of the Act allowed the making of an order at any time during the proceedings; it did not permit an order to be made after the proceedings had concluded.
17. Following his ruling HHJ Gosling was asked to state a case. He did so. He has identified the question for this court as follows: whether the court on 20 November was functus officio, so that in law it was debarred from hearing the application for wasted costs. At first blush the answer to the question is straightforward. The statutory authority for the making of an order, as applied for by the appellant on 14 October, is section 19 of the 1985 Act. That permits the making of regulations to allow the making of an order at any time during the proceedings. Regulation 3 of the 1986 regulations reflects that statutory authority.
18. This application was not made during the proceedings. The proceedings concluded with the making of the defendant's costs order and the judge and the justices moving on to their next case. This application was made two working days after the conclusion of the proceedings. So HHJ Gosling, on the face of it, had no power to make the order for which the appellant had applied.
19. The appellant relied on two matters before HHJ Gosling to meet that objection and he relies on the same matters before this court. First, he argues that Part 76.8(4) of the Criminal Procedure Rules require a written application containing particulars which could not be provided until after the conclusion of the proceedings. The relevant words of Part 76.8 require an application in writing "as soon as practicable after becoming aware of the grounds for doing so". They also require the service of the application on various parties, details of the amount claimed and how it is said that the amount should be levied on the defaulting party. As HHJ Gosling observed, the rule requires the written application to be made in writing "as soon as reasonably practicable after becoming aware of the grounds for doing so". In this case that was prior to the hearing on 10 October.
20. There is material before us that indicates that reference was made to such an application at the pre-appeal hearing on 18 September. In any event, the provisions of this rule do not assist the appellant on the facts of this case. More to the point, the Criminal Procedure Rules do not create a jurisdiction unless and until one is created by law. In relation to Part 76 that is made explicit by Part 76.1, which states that this rule applies "where the court can order a party to pay another party's costs." The question, "Can the court order a party to pay another party's costs?" must be answered in the affirmative before the other provisions of Part 76 can apply. The resolution of that question depends on the provisions of section 19 of the 1985 Act and the regulations made thereunder.
21. To meet that point the appellant raises his second argument, namely is that the statutory provisions do not have the meaning ascribed to them by HHJ Gosling. He relies on the decision of this court in Director of Public Prosecutions v Denning [1992] 94 Cr App R 272. Mr Denning was a goods vehicle driver against whom an information was preferred alleging a breach of the construction and use regulations in respect of his vehicle. He first appeared before the Magistrates' Court in October 1989. Various appearances followed before the court in November and December 1989.
22. A further hearing was then due on 8 January 1990. However, on 5 January 1990 the prosecution served a notice of discontinuance which was received by the court on the morning of 8 January, that is before the court was due to sit. Also on 5 January Mr Denning's solicitors were told orally by the prosecution that such a notice had been served. The solicitors informed the prosecution and thereafter the court that they would make an application for costs against the prosecution on 8 January. That is what happened. The Magistrates' Court heard the application and made an order for costs, pursuant to section 19 of the 1985 Act. The prosecution appealed to this court against that order. Their argument was that the proceedings had concluded with the service of the notice of discontinuance, so the Magistrates' Court had no power to make the order. They were functus officio.
23. The prosecution's appeal was dismissed. This court noted that the prosecution sought to rely on the ability of a defendant served with a notice of discontinuance to give notice that he required the proceedings to be continued, the argument being that such notice would have been the appropriate means by which to keep the proceedings in being for the purposes of making an application for costs. There were two difficulties with that argument on the facts. First, on the morning of 8 January, at which point the notice of discontinuance became effective, the defendant had not yet received his formal notification of that discontinuance by which his right to give notice would have been triggered. Second, the proforma notification when it did arrive told the defendant in terms that he did not have to give such notice in order to apply for his costs.
24. The facts of that case were particular and have no particular resonance to the facts of this case, but the appellant relies on the more general observations of the court. In the course of his judgment Nolan LJ said this:

"...it is inconceivable that Parliament should have intended the power to award costs to be exercisable only during the course of the proceedings in respect of which the award is to be made. A final order for costs can only be made after the proceedings have been concluded. Regulation 3(1) is not happily worded but must be construed as providing for a final costs order to be made in the normal way because it authorises an award of costs incurred 'in respect of the proceedings', a phrase which must include the whole of the proceedings, and requires the court to hear the parties before making the order. It is only after hearing the parties that the court can be 'satisfied' that an award should be made.

The purpose and effect of s.19(2)(a) and reg 3(1) seem to me to have been not to vary the normal procedure by which a final order of costs is made at the end of the proceedings — that is to say after they have been ended by a verdict, or by a notice of discontinuance — but to give the court power to make an interim order of costs while the proceedings are still in progress. In short, the result of a notice of discontinuance in my judgment is to bring the proceedings to an end in the same way as a verdict would have brought them to an end but to leave the normal jurisdiction of the court in the matter of costs unaltered."

25. I can understand the anxiety of Nolan LJ to avoid an absurd result on the facts of the case before him, however his reference to "the normal procedure by which a final order for costs is made at the end of the proceedings" is wholly consistent with the proposition that the application must be made at the conclusion of the final hearing and not at some later point. Indeed in this case that is precisely what happened at the conclusion of the hearing: the judge and the two justices having announced that the appeal would be allowed and the conviction quashed, an application for costs of a different type was made and granted.
26. Roch J gave the other judgment of the court in Denning. He made it clear that the case turned on the effect of a notice of discontinuance. His conclusion was in these terms:

"The conclusion that I have reached as to the effect of a notice of discontinuance by the prosecutor... is that the justices cease to be able to hear the substance of the matter which has been discontinued but they still have jurisdiction to entertain and decide applications for costs both under s.16 and under s.19 of the 1985 Act."

27. It is clear that that conclusion relates particularly and only to cases involving a notice of discontinuance. The circumstances of this case are wholly different. HHJ Gosling set out the position in paragraph 8 of his ruling, which he repeated in summary form at paragraph 7(v) of the case stated. Denning did not apply to the facts of this case. Where a case is withdrawn or discontinued a court cannot become functus officio at the point of discontinuance or withdrawal. Were that to be so it would thereby be deprived of any power to make an order for costs. This case followed the normal procedure involved in any case where there was a final hearing.

27. The hearing concluded with a ruling, following which there was a consideration of the issue of costs. At the conclusion of that process the court was functus officio. Those are matters of general principle. Nothing in section 19 of the 1985 Act undermines that general principle. Denning was a decision on its own particular facts.
28. It follows that the answer to the question posed in the case stated indeed is straightforward: on 20 November 2014, the Crown Court was functus officio so that in law it was debarred from hearing the application for wasted costs. HHJ Gosling's ruling was wholly correct and, for my part, I would dismiss this appeal.
29. SIR BRIAN LEVESON: It would have been a straightforward matter at the conclusion of the appeal for Mr Khan to intimate an application for costs against the Crown Prosecution Service utilising the wasted costs jurisdiction, or, in the alternative, to seek a defendant's costs order. Given the requirement to provide notice in writing, depending upon the view of the Crown Prosecution Service and the court, if it had been necessary a further short hearing could have been organised for the court, then consisting of HHJ Rafferty QC and two justices, to determine the matter. They after all had heard the appeal.
30. In the event, a defendant's costs order was sought and made, which had the effect of allowing the appellant to recovers his costs, including his legal costs, from Central Funds. Thus the appeal had been concluded, it had been allowed and the issue of costs resolved.
31. That the appellant does not wish to rely on the order he sought and obtained, because he believes that the party at fault (the Crown Prosecution Service) should pay, rather than other public funds, is not to the point. Neither is the assurance, which of course we accept, that the defendant's costs order would not have been pursued if a wasted costs order had been made.
32. For the reasons given by William Davis J, I agree that this appeal should be dismissed.
33. MR TREVERTON-JONES QC: My Lords, I will therefore ask for an order that the appeal is dismissed and that the appellant pay the respondent's costs to be summarily assessed in the sum of £1,885, which is essentially my fees.
34. SIR BRIAN LEVESON: Yes, but Mr Treverton-Jones you have explained that you are here because of a wider concern within the Crown Prosecution Service about the impact of these applications. With great respect, and we are very grateful for all your assistance, it is very difficult to see how it could be justified for the Crown Prosecution Service to instruct eminent leading counsel to argue a case which for the appellant is really by way of his perception of public service, rather than anything else. What do you say about that?
35. MR TREVERTON-JONES QC: What I would say about that is if your Lordships are against me I would invite your Lordships to make no order for costs.
36. SIR BRIAN LEVESON: Mr Khan?
37. MR KHAN: In any event, there is a jurisdictional bar under section 18 of the 1985 Act. Section 18 deals with the issue of Magistrates' Courts' costs, with Crown Court costs and with Court of Appeal costs. Parliament has given no jurisdiction to this court in cases where an appeal has been dismissed.
38. SIR BRIAN LEVESON: I do not think that is right. We make costs orders in case stated cases all the time. Are you saying we are not doing it?
39. MR KHAN: Could I take your Lordship through section 18, which is the provision that gives the court power? Does your Lordship have Archbold?
40. SIR BRIAN LEVESON: No, I have a White Book.
41. MR KHAN: I am told it is civil proceedings.
42. SIR BRIAN LEVESON: Yes, of course it is.
43. MR KHAN: It is our submission that section 18 is the applicable provision.
44. SIR BRIAN LEVESON: This is an appeal by way of case stated from the Divisional Court. (pause) The appeal is governed by 52EPD of the Civil Procedure Rules. I see nothing that suggests the normal order in this court that costs follow the event should not apply. What do you say that the Criminal Procedure Rules require?
45. MR KHAN: It is not the Criminal Procedure Rules, it is section 18 of the Prosecution of Offences Act. It deals with the Magistrates' Courts, the Crown Court and the Court of Appeal, but it does not deal with giving this court jurisdiction to award costs against an accused.
46. MR JUSTICE WILLIAM DAVIS: It would not. These are civil proceedings for these purposes.
47. MR KHAN: If I am wrong on that point--
48. SIR BRIAN LEVESON: We will think about the other point. I would have thought you would be perfectly happy with the argument I erected, but if you think it is wrong then tell me.
49. MR KHAN: I respectfully adopt your Lordship's argument.
50. SIR BRIAN LEVESON: Mr Treverton-Jones, we will make no order for costs. Thank you very much indeed for all your assistance.