Case No: CO/2374/2015
Neutral Citation Number: [2015] EWHC 3734 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 18/12/2015

Before :

LORD JUSTICE BURNETT
and
MR JUSTICE IRWIN
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Between :

	R (on the application of AISLING HUBERT)	Claimant	
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	MANCHESTER CROWN COURT
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(1) DR PRABHA SIVARAMAN
	Defendant

Interested
Party	
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Michael Phillips (instructed by The Claimant) for the Claimant
Steven Kovats QC (instructed by Crown Prosecution Service) for the Defendant
Jonathan Barnard (instructed by Hempsons Solicitors) for the Interested Party

Hearing date: 1 December 2015

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Judgment
MR JUSTICE IRWIN:
1.	The Court has addressed two linked applications and we have refused permission in both cases.  This application is for permission to challenge the costs order of His Honour Judge Steiger QC, made in the Manchester Crown Court on 31 March 2015.  The original challenge in this matter included a challenge to the refusal of HHJ Steiger QC to recuse himself on 16 February 2015.  That matter was withdrawn.  By order of Mr Justice Nicol on 31 July 2015, the application for permission to challenge the costs order was ordered to be listed for a rolled-up hearing.
2.	In the linked case, this Claimant sought permission to apply for judicial review to challenge decisions by the Director of Public Prosecutions not to prosecute Dr Prabha Sivaraman (the Interested Party in the costs matter) and Dr Palaniappan Rajmohan.  In the reasons for refusal for permission in the linked case, I have set out the sequence of events leading up to the Director’s decision of 13 March 2015 to intervene in the private prosecutions instigated by the Claimant against both doctors and to stop those prosecutions.  In giving reasons in this application, I do not repeat the sequence of events or the reasoning set out in my judgment in the linked case.  I add here only such additional fact as is necessary to understand the refusal of permission in relation to the costs order. 
The Facts 
3.	The private prosecution first came before HHJ Steiger QC on 16 January 2015.  Neither side attended.  He then gave directions.
4.	On 11 February 2015, following a hearing on 6 February, HHJ Steiger QC refused an application for a witness summons.  In the course of his written reasons, he set out in broad terms the background to the application.  He noted that the Claimant was a young woman without means, living with her parents, supported by an anti-abortion organisation.  He noted that the Claimant had no connection with the facts of the case, or with that of the other similar case in Birmingham.  He noted that the Claimant in her application for the originating summons sought prosecution for the substantive offence of procuring poison, intending to induce an abortion contrary to Section 59 of the Offences Against the Person Act 1861.  He noted that on 10 December 2014 there had been “an attempt to amend the charge” so as to substitute a conspiracy to commit that offence.
5.	The judge then noted that on 16 January, when the preliminary hearing in the proceedings should have been held, he had been asked to postpone the hearing, in part because the DPP was considering intervening.  That decision had not yet been taken at the time of the scheduled hearing on 6 February.  The judge refused the application for a summons against the Daily Telegraph.  He expressed part of his reasoning as follows:
“a.  On the case now made (as opposed to that advanced to the Magistrates) the prosecution has been launched without Miss Hubert or her advisers having the evidence necessary to establish the conspiracy alleged.  Mr Mullins’ own document (para 7) says:  “The evidence is needed before the PCMH because the prosecution’s case relied upon it”.  It is unprecedented in my experience for a prosecution to be launched without the necessary evidence against the accused bearing in mind the burden and standard of proof.
b.  The evidence sought was obtained by a trick as well as a factual claim (as to the sex of the foetus given its immaturity) which could not possibly be true.  Thus, even if the prosecution were to have the full recording there would be a powerful defence argument that the prosecution was an abuse and that the evidence should be excluded under section 78 of the Police and Criminal Evidence Act 1984.  In my view “material evidence” under the 1965 Act means material admissible evidence and not that fatally tainted (sic).
c.  The DPP has refused to prosecute and personally articulated his reasons.  Although this is no bar to a private prosecution as the case of R (Gujra) v CPS [2013] 1 AC 484 SC demonstrates, it is my view relevant to the interests of justice limb in the test for a summons.  Furthermore, Miss Hubert has no connection with the facts of the case and is a woman of straw without the means to pay defence costs if the prosecution fails.”
6.	As already indicated, the DPP communicated her decision to intervene and stop the prosecution on 13 March 2015.  I have dealt fully with her reasoning in my judgment in the linked case.  One key feature of her reasoning was that in relation to the offence for which prosecution was sought there was “no realistic prospect of a conviction” as “no admissible evidence has been served to support any offence”.  As I have indicated in the linked judgment, the Director went on to take a wider view of the matter.  However, even following that process, she concluded that it was not in the public interest for any prosecution to be continued.  For present purposes, the critical point is that there simply was no evidence to sustain a conviction for the offence which had been prosecuted by the Claimant.
7.	Following the Director’s decision, the Interested Party, as Defendant to the criminal proceedings now terminated, sought her costs.  As part of her reasoning, the Interested Party made the following points.  The Claimant prosecutor had no direct evidence of any offence:  all the evidence on which she proposed to rely had been culled from the internet.  Expert evidence advanced included contradictory positions between the experts.  There was no evidence that the Interested Party had acted in bad faith and there was no evidence of a conspiracy.  The Interested Party noted the Claimant prosecutor’s application for a witness summons against the Daily Telegraph, including the following passage from her written note in support of the application:
“The evidence is material evidence because the full footage of the video of the consultation is needed to demonstrate that an agreement was made with another person when Dr Sivaraman telephoned a colleague.  The edited video implies an agreement but the full footage is needed to demonstrate it.”
The Interested Party relied on that passage as a “tacit admission” that, in the absence of the full video footage, the private prosecution was unsustainable.  Therefore the proceedings had been instituted at a time when the available evidence was insufficient to support a prosecution for any offence at all.
8.	The Interested Party’s application was founded on Section 19 of the Prosecution of Offences Act 1985 and the regulations made under the Act in the form of the Costs in Criminal Cases (General) Regulations 1986.  Regulation 3(1) provides:
“…where at any time during criminal proceedings [the Court] 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.”
9.	Part 76.8 of the Criminal Procedure Rules 2013 sets out the form of application necessary for an order for “costs incurred as a result of unnecessary or improper act or omission by or on behalf of the first party”.  Part 4.1 of the Practice Direction (costs in criminal proceedings) [2013] EWCA Crim 1632 states as follows:
“4.1 Costs Incurred as a Result of unnecessary or Improper Act or Omission
4.1.1 … the Crown Court … may order the payment of any costs incurred as a result of any unnecessary or improper act or omission by or on behalf of any party to the proceedings as distinct from his legal representative… The court may find it helpful to adopt a three stage approach (a) Has there been an unnecessary or improper, act or omission?  (b) As a result have any costs been incurred by another party?  (c) If the answers to (a) and (b) are “yes”, should the court exercise its discretion to order the party responsible to meet the whole or any part of the relevant costs, and if so what specific sum is involved?  Rule 76.8 of the Criminal Procedure Rules sets out the procedure.  A form of application is set out in Schedule 5 to this Practice Direction.
4.1.2  The court must hear the parties and may then order that all or part of the costs so incurred by one party shall be paid to him by the other party.”
10.	The Interested Party drew the attention of the judge to the analysis of the central phrase “an unnecessary or improper act or omission” set out in DPP v Denning [1991] 2 QB 532 at 541, where Nolan LJ said that the meaning of the word “improper”:
“… 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.”
11.	That formulation was re-stated with approval by Fulford J (as he then was) in Bentley Thomas v Wingfield [2013] EWHC 356 (Admin).  In applying the test in Bentley the judge stated as follows:
“24.  The core issue on this appeal, in my view, is whether the prosecution ever stood any realistic chance of success and whether, in that sense, it was a reasonable and proper prosecution.”
12.	The test in Bentley was also applied by Hickinbottom J in Evans v SFO [2015] EWHC 263.
13.	In resisting the application before HHJ Steiger, the Claimant prosecutor emphasised the importance of private prosecutions and relied on passages from the dissenting judgments of Lord Mance and Baroness Hale in R (Gujra) v CPS [2012] UKSC 52 as to the historic and current constitutional importance of private prosecutions, conceding that they were in a minority on the outcome of that case.
14.	In giving reasons for his decision, the learned judge set out his conclusions fairly fully.  He correctly directed himself as to the proper regulations and considered the relevant authorities, in particular the test laid down in Denning.  He set out the essential detail and, in my view, made it clear that he was fully appraised of the history of the case, unsurprisingly given his repeated involvement.  He identified the salient aspects of the background.  
15.	The learned judge then went on to state that in his view:
“The evidential test for a prosecution here was never met whether as to any substantive offence, attempt thereat or conspiracy, at least as I understand the evidence.  In this I respectfully differ from the opinion of the DPP as expressed in the January 2014 press release and letter of 13 March 2015. The press release appears to contemplate an attempt to procure a miscarriage, the substantive offence being created by Section 58… but the evidence in my mind shows mere preparation at best.  A further obstacle as to the “good faith” defence in the Abortion Act 1967 is that the sex of the foetus being carried by the journalist’s accomplice had not and could not be ascertained except by invasive techniques which were never in prospect.”
16.	The judge went on to consider the offence actually sought in the prosecution, which was a conspiracy to procure poison with a view to procuring a miscarriage contrary to Section 59 of the Act.  Here he concluded that:
“The evidence wholly fails to show that the unknown telephone contact was a knowing and intending partner in such an agreement:  it was precisely to overcome this lacuna that the summons was sought against the newspaper.”
17.	The judge went on to state that the absence of sufficient evidence to justify a prosecution did not of itself justify an award of costs against the Claimant prosecutor, and he added:
“Nor does the absence of any public interest in a prosecution justify an award – there has to be an “unnecessary or improper act or omission” to quote the 1985 Act.  I have considered the authorities submitted and bear in mind the constitutional importance of private prosecutions as a last resort against the unfair or corrupt use of state power; this was emphasised by the dissenters in Gujra although that case was about the DPP’s policy and not costs.  By contrast, the Denning case was about costs and Nolan LJ observed that “improper” did not connote grave impropriety.”
18.	The judge went on to consider the cases of Evans and Bentley Thomas and then having done so reached his conclusions in the following terms:
“10. In my judgment, the most significant feature of the present application is the unexplained abandonment by Miss Hubert of her application for leave to pursue JR.  Although Mr Phillips was cagey about the reasons and at one point mentioned privilege, the overwhelming inference is that those advising Miss Hubert considered the case would fail and the DPP’s stance be exonerated as reasonable.  It was, to my mind, unreasonable to abandon the JR proceedings in which an authoritative decision would be given with reasons by the High Court, particularly in what was said to be an important matter of principle for the medical profession as a whole.  By contrast, to start the prosecution process all over again in a summary court where reasons were not given for the issue of the originating summons and waiting eight months to do so was unreasonable.  Accordingly, I consider that the test under section 19 of the 1985 Act is met and the application for costs against Miss Huber succeeds.”
19.	The judge went on to assess the costs in the sum of £25,000.
The Approach to Judicial Review
20.	The parties are agreed that the High Court has jurisdiction to hear the claim concerning the wasted costs order.  In R (on the application of B) v X Crown Court [2009] EWHC 1149 the Court concluded that wasted costs proceedings were ancillary to matters relating to trial on indictment and therefore the High Court has jurisdiction to consider a challenge by way of judicial review. 
The Claimant’s Submissions 
21.	In attacking the decision of HHJ Steiger QC, the Claimant prosecutor submits that what tipped the balance in the judge’s mind to make an award was the Claimant’s abandonment of the original judicial review proceedings.  In stating that it was unreasonable “to start the prosecution process all over again in a summary court” it is suggested the judge himself took an unreasonable approach.  It is argued that the original judicial review involved a challenge to the Director’s decision not to commence proceedings because the public interest test was not met, whereas the test for the commencement of a private prosecution is different.  The Claimant attacks the judge for making the criticisms he did of delay.  It is said this is inconsistent with his expressed view that the proper course would have been to pursue the judicial review, since it is claimed this would have added delay by contrast to the course actually followed.  Finally, the Claimant attacks the judge for the “overwhelming inference” he drew that the Claimant’s legal advice on the judicial review had been negative.  It is said this is both improper and irrational.  The Claimant argues it is wrong in principle for the Court to enquire into the contents of privileged legal advice.  It is said that there are many legitimate reasons why a litigant may prefer a private prosecution to a judicial review of a public prosecutor.  It is further said that the judge failed to take into account the reasons given on behalf of the Claimant for the discontinuance of the judicial review proceedings, in particular the need to avoid delay, the difficulty in disputing the undisclosed expert report commissioned by the DPP and the difference of the legal tests which the Claimant submits arise in judicial review and in private prosecutions.
Conclusions
22.	The starting point for considering the decision of the judge is that he took an over-stringent view against the merits of prosecution than had the successive Directors.  It was his view that, taken at the height, even assuming all potential evidence were brought to bear, the matter never got even arguably beyond acts preparatory to a substantive offence.  No-one knew whether the woman in question was carrying a male or female foetus.  No step was taken beyond a first discussion.  Even if Section 58 was in question, rather than Section 59, his view clearly was there was no decision to carry out an abortion at all, in the absence of that knowledge.  For the reasons given by the judge, and exemplified by the content of the application for the witness summons, the Claimant prosecutor had no evidence from which a conspiracy could be inferred, either in respect of Section 58 or Section 59.
23.	In my view, both the foregoing conclusions were reasonable.
24.	The judge concluded that he should not make an adverse costs order on the basis alone that the prosecution was hopeless from the beginning, or that it was (and had been held to be) not in the public interest.  He felt that neither of these points, on their own, would necessarily justify an adverse costs order. In my view they might do so, depending on the case.  It should be borne in mind that the remarks of Lord Judge CJ, in R v A [2012] 2 CAR 80, as to the rarity of intervention in a prosecution, carry the proviso that “there is evidence from which the jury may properly convict.”  In the Gujra case, it was agreed on all sides that there were two reasonable views of the “realistic prospects of success”, which was the starting point for the dissenting judgment of Baroness Hale relied on by the Claimant (see Gujra, paragraph 129).  In the instant case the judge had concluded there was no such evidence.  The DPP had concluded there was no such evidence in relation to the offence for which prosecution was sought (Section 59) or for an offence under Section 58, on the basis advanced by the Claimant.  Thus, in my view, although the lack of evidence might not in itself compel an adverse award of costs, the circumstances here are even without more, perhaps closer to an “improper” approach than might normally be the case.
25.	However, the basis on which the judge concluded the approach was “unreasonable”, and by implication improper, was, in essence, the persistence of the Claimant.  There is no need for me to repeat the circumstances.  It was perhaps unwise of the judge to draw the inferences he did as to the legal advice received by the Claimant which led to the withdrawal of the first judicial review.  The Claimant may fairly say there can be many reasons for such a decision.  But in truth the criticism by the judge consisted not of that decision, but its aftermath.  Having abandoned that challenge, the Claimant went on, after considerable delay, to launch a prosecution on a legal basis which could not succeed (Section 59, substantive offence).  Even once altered to a conspiracy to commit an offence against Section 59, the Judge reasonably found there was no evidence in the possession of the prosecution which could properly bring a jury to convict.  In my judgment, the judge was fully entitled to conclude that persistence over that time and against such a state of the evidence represented an improper prosecution, fulfilling the test in Denning.
26.	For those reasons, I would dismiss the application for judicial review.
LORD JUSTICE BURNETT
27.	I joined in the decision to refuse permission to apply for judicial review in this case for the reasons given by Irwin J.  I would add only that I consider that the approach of the judge to the claimant was benign in one respect. He concluded that the prosecution was hopeless from the outset because of the lack of evidence in support which, for the reasons explained by the judge and echoed by my Lord, was in truth accepted by the claimant in her application against the Daily Telegraph.  He did not consider that conclusion dispositive of the application.  Costs decisions under this provision, as under most others, have a discretionary element which calls for the consideration of a myriad of factors, which are case specific.  However, ordinarily a prosecutor should expect to have to bear the costs of a defendant in criminal proceedings where, on proper analysis, the prosecution never had any prospect of success and thus should never have been brought.  The application of the test formulated in Bentley and applied in Evans (see paragraphs [11] and [12] above) will determine the outcome in most such applications. 
28.	In this case the decision to order the prosecutor to pay the costs was made all the more appropriate by the other factors referred to by the judge.