England and Wales High Court (Administrative Court) Decisions

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

		Manchester Civil Justice Centre 1 Bridge Street West Manchester M60 9DJ
		8 December 2016

1. MR JUSTICE WILKIE: Robert Jones applies with permission granted by the Single Judge on 15 April 2014, along with certain directions, to judicially review the decision of the Liverpool Magistrates' Court District Judge Gwyn Jones ("the defendant") on 4 February 2014 to proceed with a trial in the absence of legal aid and in the absence of the claimant and to issue a warrant without bail for the arrest of the claimant. The defendant in its acknowledgement of service dated 20 March 2014 indicated that as a court it intended to make submissions.
2. Its grounds for contesting the claim concluded with the contention that the decision to proceed in the absence of the claimant was fair in all the circumstances of the case. The warrant not backed for bail was appropriate to secure the attendance of the claimant at court. The Crown Prosecution Service, as interested party, submitted an acknowledgement of service dated 10 April 2014. It indicated that it did not intend to contest the claim. In summary, the issue was whether the claimant did not attend court through no fault of his own. It noted that the court did not appear to dispute that the claimant's solicitors were notified by the court office that the trial had been vacated and that this information was relied on to notify the claimant that he need not attend on 4 February. In those circumstances, the CPS did not seek to resist the argument that the District Judge ought to have adjourned the claimant's trial. In a supplemental skeleton, whilst acknowledging that the court did dispute the claimant's solicitors were told the case was vacated, it was not disputed that the claimant had been told by his solicitors he need not attend.
3. Pursuant to the directions given by the Single Judge on 27 May 2014, the court submitted a statement dated 20 May made by the district Judge. It also submitted written statements dated, respectively, 30 April and 20 May 2014 by David Whittingham, the legal advisor to the defendant. The court has not attended this hearing in order to make submissions. Accordingly, we have to decide this case on the basis of the written material submitted by the court, together with the oral submissions of the claimant and the CPS as well as the other documentation. It is of significance that the court has not sought to cross-examine Ms Lia Partington, a witness for the claimant, though given the option of an opportunity to do so if it so wished in the directions made by the Single Judge.
4. On 4 February 2014, following a trial in the absence of the claimant and his legal representatives, he was convicted of an offence of harassment contrary to section 2 of the Protection from Harassment Act 1997 and a warrant was issued for his arrest not backed for bail. The claimant attended the police station by appointment on 6 February 2014 and, pursuant to the warrant, was arrested and produced before the court and granted bail until 28 February 2014. On that date, he was made the subject of a conditional discharge for 18 months and a restraining order, both of which have now expired by effluxion of time, and ordered to pay costs in the sum of £415.
5. I now turn to deal with the underlying facts. On 19 December 2013, the claimant, then a man of good character, was charged with an offence of harassment contrary to section 2 of the Protection from Harassment Act 1997. He was granted conditional bail and appeared before Liverpool Magistrates' Court on 24 December 2013. At that stage, he had not sought the assistance of a solicitor. The primary prosecution evidence came from the claimant's former partner and a second adult female witness, each of whom requested through the CPS the use of special measures on grounds that they were in fear of the claimant.
6. On 24 December 2013, the claimant sought the assistance of the court duty solicitors Messrs Parry, Welch, Lacey LLP. The claimant entered the plea of not guilty. The case management forms were completed and a priority trial date was fixed for 2.00 pm on 4 February 2014. The case was subject to the domestic violence protocol. Also on 24 December, the claimant instructed Parry, Welch, Lacey to represent him.
7. To apply for Legal Aid he was required to provide information about his means. It is said that he was unable to produce the necessary supporting information until 3 January 2014. An application was completed on that date and submitted to the court by post. The means assessment fell to be considered not by the court staff but by Legal Aid Agency staff in Nottingham. The case was listed before District Judge Lloyd on 31 January to deal with the special measures application. Amongst the other issues considered, was the fact that Legal Aid had not yet been granted for the claimant. The District Judge was concerned that the claimant should not directly cross-examine the complainant and to deal with the position in the event that Legal Aid was not granted in time for the trial, the Judge made an order pursuant to section 36 of the Youth Justice and Criminal Evidence Act 1999 prohibiting the claimant from cross-examining the complainant.
8. I now turn to deal with the procedural history of the case beyond that date. On 31 January 2014, the court office advised Parry, Welch, Lacey that the Legal Aid application had been sent to the agency in Nottingham and was not expected to be returned to the court until 5 February 2014. Only then could the court issue an appropriate order or notice of refusal of Legal Aid. Thereafter, the sequence of events is not entirely agreed, but I set out my findings on the sequence of events derived from the evidence of a number of persons, including the District Judge.
9. Mr Lacey prepared an application to vacate the trial date of 4 February on the appropriate form. The reasons he gave were that no legal representation was in place and no decision would be available until 5 February 2014 at the earliest through no fault of the claimant. The application referred to the suggestion by the court that the lack of Legal Aid could be rectified by making an order for assistance for the purpose of cross-examination of the victim and contended that such limited assistance would be insufficient for the claimant to be properly represented and asserted that continuing with the trial without representation would be a breach of Article 6 of the European Convention on Human Rights. Where he was of good character and had pleaded not guilty, it would be in the interests of justice for representation to be granted. This application was sent by secure email to the court and CPS.
10. David Whittingham, an assistant justices' clerk at the court, accepts that the application to vacate was received. Part of the form headed "Court decision" is blank, which indicates to him that no assistant justices' clerk has considered the application and no decision has been taken to vacate the trial date. The normal procedure is that the application file is placed in an assistant justices' clerk's tray for consideration and, having given the CPS an opportunity to express a view, the application will be determined. Mr Whittingham concludes that no decision was made on the application. He has expressed an opinion that, given it was a domestic violence case, a direction had been given under section 36, the CPS had not made any representations and the proximity of the trial date, it was likely an application to vacate would have been refused.
11. He infers, though without apparently undertaking any enquiry in the light of the events which then transpired, that the court did not inform the claimant's solicitor that the listing had been vacated. It appears to be on the basis of his view of what happened in respect of that application form that he has sought to contest the version of events given by the claimant's solicitors and, in particular, Lia Partington, to whose evidence I now turn.
12. Lia Partington is a legal clerk employed by Parry, Welch, Lacey. Her witness statement records that on Monday 3 February she was tasked to make a telephone enquiry on the progress of the request to adjourn. She telephoned the court and her call was transferred to the Case Management Unit. She spoke with a female court officer whose name she did not note. She was placed on hold whilst the officer made enquiries. After several minutes, the officer returned to the call and informed Ms Partington that the application to adjourn the trial had been granted and they would be advised of the new date in due course. After the call, she made an attendance note which records that the call out was made at about 11.30 am and confirms what she has said in her statement and, in addition, "So we did not need to attend." Her evidence is that she then spoke with the claimant, told him that they had been informed the case had been adjourned and that he need not attend for court on 4 February.
13. On 4 February 2014, Ms Partington says that she telephoned the court to establish whether it was necessary for one of their representatives to attend to enable a new date to be fixed. She was placed on hold and was then advised that the file had been taken up to court so it would be better for someone to attend. She reported that outcome to Mr Lacey and says she made a file note. The file note, exhibited LP3, does not accord with this account. It is dated 3 February rather than the 4th and it does not record the contents of that telephone call. Rather, it records that after speaking to the court, she informed Kate Welch of the discussion she had had with the court and that the court had accepted the adjournment. Ms Welch told Ms Partington to inform Richard Lacey of this and she contacted him via text at around 12.00 noon informing him. This appears to reflect the means by which on 3 February Mr Lacey was informed of the decision by the court to accept the application to adjourn rather than reflecting the conversation which Lia Partington says in her evidence she had on the following day on 4 February. This appears to accord with Mr Lacey's evidence that on 3 February he was out of the office and was given to understand by the staff that the application to vacate had been successful and a new date was to be set administratively and that the client had been informed that he had no need to attend court.
14. Jenny Price is also employed by Parry, Welch, Lacey as a legal clerk. She says that on 4 February at 10.45 am she received a telephone call from Peter Kelly, a legal adviser at Liverpool Magistrates' Court. He referred to a telephone call a member of the court staff had with Lia Partington earlier in the day. Mr Kelly told her that the information that the case had been adjourned was incorrect. The matter was still listed to proceed. Ms Price advised Mr Kelly that their client had been told not to attend. Mr Kelly was unaware of exactly what they had been told and agreed to make further enquiries. She made an attendance note which is consistent with her account. She says that at 10.52 on the same day she received a further telephone call from Mr Kelly that the trial had not been vacated nor had the application been considered.
15. Ms Price informed him that the secure email system had indicated the email had been read. Mr Kelly informed her that simply meant that the email had been printed off and placed in a tray for a legal adviser to look at, but it had not been seen by a legal adviser and he told Ms Price that the court would not adjourn a domestic violence case because Legal Aid was not in place and would make a section 36 direction. She made an attendance note of this call, which also states that, as a section 36 direction had been made, Parry, Welch, Lacey would be paid to cross-examine and their client would have to attend as the trial was still going ahead.
16. Mr Lacey in his statement states that upon his return to the office, he was informed of what Mr Kelly said. He says he sent a further letter addressed for the urgent attention of Mr Kelly by fax and secure email reiterating his view that proceeding in the circumstances now occurring would be a breach of his client's right to a fair trial under Article 6. Having received no response, he attended court at 2.00 pm on the 4th to pursue his application to vacate the trial date.
17. It is of note that none of these witness statements refer to any attempt to contact the claimant on the morning of 4 February to tell him that the case had not in fact been vacated and that he should attend court at 2.00 pm. This conflicts with the assertion in paragraph 18 of the grounds that in the light of that information efforts were made by Lia Partington to contact the claimant to advise him that, contrary to what he had previously been told, he was now required to attend court, but those attempts were unsuccessful. We also note that in its acknowledgement of service the court states:

"No information was provided ... as to what steps had been taken to try and secure the attendance of the claimant at court in good time to participate in the trial."

18. This reflects the statement of the District Judge, which does not say that any such information was given to him by Mr Lacey.
19. Mr Whittingham in his evidence records that as a matter of law the direction of the court for the claimant to surrender himself from bail on 4 February at 2.00 pm was never altered by the court. He comments that if Ms Partington informed Mr Jones that the case had been adjourned and he did not need to attend on 4 February, such advice was inaccurate and had no legal basis as Ms Partington had no authority to advise the claimant not to comply with his duty to surrender to the custody of the court as previously directed. Accordingly, Mr Whittingham contends the claimant's absence at the hearing of his trial was the fault of Parry, Welch, Lacey. As observed above, there is no evidence that Parry, Welch, Lacey took any steps following their being informed at 10.52 am that the hearing listed at 2.00 pm had not been vacated to contact the claimant to advise him of the current state of affairs and to advise him to attend court as their initial advice had now appeared to be based upon inaccurate information.
20. I now turn to the Judge's decision. District Judge Gwyn Jones in his statement recalls that on 4 February 2014 at 2.00 pm he was listed to deal with trials which fell within the domestic violence protocol. This included the trial of the claimant which was ready to proceed with three prosecution witnesses in attendance. The main witness was extremely anxious about giving oral evidence. The prosecution was anxious to proceed that day. Mr Lacey for the claimant told him his client was not in attendance. A member of his staff had been told the trial was vacated and there was no need for his client to attend.
21. Mr Lacey was asked whether he had documentation to support his contention and was unable to provide any or any details of when the call was said to have taken place. He was unable say when a member of his staff had spoken to the court staff or when his client had been told that he need not attend. Mr Gwyn Jones was surprised that a member of the solicitors' staff had the authority to direct the defendant that he need not attend and inquired of Mr Lacey whether he could make contact with his client. He put the matter back for enquiries to be made to try to secure the claimant's attendance at court. Meanwhile, the court dealt with other matters.
22. The claimant's case was called on at 14.45 when Mr Lacey confirmed that he had not been able to make contact with his client. He, thereafter, applied for the trial date to be vacated on the ground that it would not be fair for the trial to progress in the absence of his client. He repeated that the court had told a member of his firm that the trial date was vacated and that his client need not attend. Mr Lacey accepted that if the complainant had failed to attend, it was likely an application would have been made by him that the case proceed. The judge posed himself the question whether the defence should have an adjournment when the defendant had been told by his own solicitors that he need not attend.
23. The judge requested to see the court file. It contained nothing to suggest that the case was to be vacated and re-listed. He then considered his decision. He had regard to the overriding duty to deal with the case justly; convicting the guilty and acquitting the innocent. He found the claimant was in the court when the case was sent down for trial. He found there was no evidence to suggest that the trial date had been vacated and that the claimant's attendance had been excused. He had regard to the fact that the claimant might have a basis to argue that his solicitors had been negligent. He had regard to the fact that the solicitor was unable tell court the name of the person who had told them the trial had been vacated or the date and time of such calls. He was particularly troubled that the defendant had not been contacted, bearing in mind the prevalence of mobile phones as a means of instantaneous contact. It appeared that alternative ways had not been considered to get the defendant to court. There was no evidence before the court as to what steps had been taken to contact him.
24. He had regard to the relevant authorities Jones [2003] 1 AC 1 and DPP v Picton[2006] EWHC 1108 (Admin). He also had regard to the principle that:

"Those who were at the fault could not rely on their own failings as good and compelling reasons for an adjournment."

25. He concluded that the interests of justice demanded that the trial proceed in the absence of the defendant. In view of that decision, Mr Lacey withdrew and the matter proceeded by calling the complainant. The judge was satisfied as to her veracity and the quality of her evidence and that the crown had satisfied the court that the offence had been proved to the required standard. He therefore convicted the defendant and issued a warrant to arrest him at 15.15.
26. Mr Lacey in his statement has indicated that the judge indicated that he had regard to the fact that the claimant's position was protected by a court-appointed advocate and decided that it was in the interests of justice for the case to proceed. He records that he reminded the judge that his firm had made it clear they were not in a position to act in the way envisaged by section 38 a section 36 order having been made and, as they were without instructions, he withdrew. Mr Lacey also records that on 5 February his firm were informed that Legal Aid had been granted, that his client had been found guilty in his absence and a warrant issued for his arrest not backed for bail. Thereafter, on 6 February he attended the court when the claimant, having surrounded by arrangement at a local police station, was granted conditional bail to attend court on 28 February for sentence.
27. Although Mr Gwyn Jones makes no mention in his statement of the issue of representation for cross-examination being a factor in his decision, the court in its acknowledgement of service recorded its position as follows:

"The court, however, had made a direction under the Criminal Procedure Rules part 31 preventing the claimant from cross-examining the witness himself. The claimant's solicitor was reminded once such a direction is in force the court would remunerate the solicitor for the purpose of cross-examination only. It was submitted this would be inadequate to protect the interests of the claimant ..."

My findings of fact

28. For the most part, there is no dispute about the sequence of events. There are, however, areas which are potentially in dispute. I make my findings based on my assessment of the written statements, the documentary evidence and oral submission.
29. I find as a fact that on 3 February someone in the court office informed Lia Partington at 11.30 am that the application to vacate the hearing listed for 4 February had been granted and there was no need for the defence team, and by implication the defendant, to attend. I find as a fact that that was a mistake, as no such decision had been taken and the case, therefore, remained listed and there was a requirement on the defendant to attend at the appointed time. I also find as a fact that Ms Partington promptly informed the claimant on 3 February that the case had been adjourned and there was no need for him to attend on 4 February.
30. I find as a fact that the mistake in the court office was discovered, perhaps following the conversation to which Ms Partington refers in her statement on 4 February. This resulted in Mr Peter Kelly contacting Parry, Welch, Lacey at 10.45 am on 4 February informing Ms price that their previous information was incorrect and the matter was still listed to proceed. Mr Kelly confirmed this at 10.52 am.
31. I find as a fact that no attempt was made by Parry, Welch, Lacey to contact the claimant upon receipt of the messages at 10.45 am and 10.52 am to advise him that he should attend court and that the previous information he had given was incorrect. None of the witness statements nor the attendance notes make reference to any such attempt being made. Mr Lacey did not refer to any such efforts being made in his initial submission to the district judge at 2.00 pm. I find as a fact that when Mr Lacey addressed the court at 2.00 pm and at 2.45 pm on 4 February, he failed to inform the court fully of the sequence of events which I have just described and failed to produce to the court the attendance notes which supported the account given by his employees Ms Price and Ms Partington. He was unable to assist the court as to what, if any, attempts had been made by his firm to contact the claimant.
32. I find as a fact that a direction was given under section 36 of the Youth Justice and Criminal Evidence Act 1999 prohibiting the claimant from cross-examining the complainant and that such an order was made on 31 January 2014.

Discussion and conclusion

33. The District Judge is criticised for refusing the defence application for an adjournment and, as a result, proceeding with the trial in the absence of the claimant. The evidential basis supporting that criticism is that in fact Parry, Welch, Lacey had been informed on 3 February that the trial listed for 4 February at 2.00 pm had been vacated and that there was no need for them to attend and that, thereafter, they informed their client of that decision that he need not attend on 4th.
34. In those circumstances, when the court corrected the error on the morning of 4 February by 10.52 am and in the absence of the claimant being informed that he was now required to attend court at 2.00 pm, it is said the District Judge was wrong to conclude that the non-attendance of the claimant was the fault of the legal representatives in informing him without authority of his no longer being required to attend at 2.00 pm on 4th. In my judgment, that argument is misconceived. I have to judge the decision of the District Judge on the basis of the facts known to him at the time. In my judgment, he was entitled to conclude that in the absence of any particularisation of Parry, Welch, Lacey's contentions and, in the absence of any documentary proof to support them, that he was entitled to act on the basis that the claimant had been informed erroneously and negligently by his solicitors that he did not need to attend and, accordingly, in that way his non-attendance was the fault of his advisors. Thus he, through his solicitor was at fault in not attending.
35. In my judgment, the judge was entitled to have regard to the fact that the case was one of alleged domestic violence. The complainant was already nervous about giving evidence to the point of requiring special measures. It would, in my judgment, have been open for him to have conclude that, other things being equal, the impact on the interests of justice of an adjournment when the prosecution were ready to present their evidence was sufficiently adverse that he should refuse an adjournment where the non-attendance giving rise to the application was the fault of the defendant through his legal advisors.
36. However, one of the factors to which the District Judge had regard was that Parry, Welch, Lacey were in a position then and there to undertake cross-examination of the complainant pursuant to an appointment made by the court under section 38.4. This affected the judge's view of where the interests of justice lay. In my judgment, it was an error on his part to assume that Parry, Welch, Lacey could, if they had so wished, have undertaken the role envisaged by section 38 in circumstances where Legal Aid had not been granted. The section 36 direction had only been made on 31 January. As a matter of practicality, no instructions, other than of a general defence, had been received by the solicitors and they could not properly proceed that day to undertake even the task of cross-examination pursuant to the arrangements under section 36. In my judgment, it is no surprise that Mr Lacey felt unable to undertake such a role and, accordingly, withdrew from the case once his application for adjournment had been refused.
37. This left the court to proceed in the absence of the claimant and without any legitimate method of testing the evidence of the complainant in cross-examination. The court knew that the claimant was a person of previous good character, had pleaded not guilty to the charge, was taking issue with the evidence of the complainant and that his non-attendance was, on any view, not directly his fault, but, if at all, the fault of his legal representatives.
38. The judge did not seem to consider section 11(1)(b) of the Magistrates' Court Act, that is the court shall proceed in his absence unless it appears contrary to the interests of justice, nor section 11(2)(a) that the court shall not proceed in the absence of the defendant if it considers an acceptable reason for his failure to appear has been given. It did not, in my judgment, give sufficient consideration to these provisions when considering whether it was fair and just to proceed. In effect, he equated the claimant's position, which in fact was blameless, with what he may have considered to have been the failings of the claimant's solicitors. Furthermore, in my judgment, in having regard to the potential availability of Parry, Welch, Lacey to cross-examine the complainant on her evidence, the District Judge did so on an erroneous basis as there was no reason to suppose that the solicitors could properly have undertaken that role.
39. For all these reasons, in my judgment, his decision to refuse an adjournment and to proceed with a trial in the absence of the claimant was unlawful and I would therefore quash that decision and it would follow the conviction too would be quashed.

Consequence

40. As to the decision to issue a warrant for the arrest of the claimant, I have to judge the position on the basis of the facts then reasonably understood by the District Judge about the reason for the claimant's non-attendance. There was an obligation on the claimant to answer to his bail at 2.00 pm on 4 February. He had failed to do so. The judge was entitled to conclude that his failure to do so was the fault of his legal advisors, but he was not entitled to form the view that it was directly the fault of the claimant, nor was there any reason for the judge to suppose that the claimant would have failed to attend as required at 2.00 pm on 4 February if he had been made aware by the solicitors of his continuing obligation to do so. Accordingly, there was no proper basis for the judge to issue a warrant for his arrest, let alone one not backed for bail. The claimant was required to attend court on 28 February for sentence, but there was no reason to suppose that anything more than a notice requiring him to attend was required. Accordingly, I would quash the decision to issue the arrest warrant.
41. I now turn to consider remedy. Had the matter come before this court in a timely fashion, then the ordinary course would be for this court to form a retrial upon having quashed the conviction. It is now, however, about three years since the events complained of and almost three years since the trial. The claimant is a man of good character. I am given to understand that he did not breach any of the terms of the conditional discharge of the restraining order, both of which have now lapsed.
42. In my judgment, as the question of remedy is within the court's discretion, in the particular circumstances of this case, it would not be necessary to order the retrial. I do not propose to do so.
43. LORD JUSTICE TREACY: I agree. The judge wrongly conflated the position of this claimant, who was blameless for his non-attendance, with that of the defence solicitors, who were in part at fault, certainly in relation to 4 February, in failing to try to contact the claimant in order to tell him not to attend. They were also remiss in failing to provide evidence to the court on the afternoon of 4 February in support of the fact that a member of court staff had on 3 February told Ms Partington that the case had been adjourned.
44. I go on to express concern that Mr Whittingham, the legal adviser on behalf of the court, has made a stand on the facts that the requirement for the appellant to attend at 2.00 pm on 4 February remained in force, without acknowledging, or apparently even investigating, the error in the court office arising from the conversation with Ms Partington on 3 February. This is a matter which the Single Judge in granting leave indicated that any party should have the opportunity to investigate by way of cross-examination, but no party, including the defendant court, has taken up that opportunity. Accordingly, Ms Partington's evidence was unchallenged before this court.
45. The court, through Mr Whittingham, took this stand, notwithstanding the evidence which had been produced subsequent to the hearing and notwithstanding the attitude of the Crown Prosecution Service not to seek to sustain this conviction for reasons which were fully developed in the acknowledgement of service. The court maintained its position, despite an invitation by the claimant's solicitors through a letter of 14 April 2014 inviting the court to reconsider its position and to agree to a consent order. By letter of 24 April 2014, the court declined to do so, thus necessitating this hearing.
46. I also express concern that it has taken from mid-February 2015, when this case was initially listed but removed from the list shortly beforehand for lack of time, to have this matter re-listed. Thank you.
47. Mr Parry, I am just going to give you back the two letters that you kindly handed up to us.
48. MR PARRY: I am most grateful, my Lord.
49. LORD JUSTICE TREACY: Thank you. Your client is legally aided.
50. MR PARRY: He is legally aided in this respect of these proceedings.
51. LORD JUSTICE TREACY: You simply want an order for legal aid taxation.
52. MR PARRY: I would like a defendant's costs order from central funds pursuant to section 16.5 of the Prosecution of Offences Act 1985. I can hand up the relevant provision if your Lordship wants.
53. LORD JUSTICE TREACY: Is the court not prohibited from making an order from central funds where a claimant has the benefit of a representation order and a Legal Aid certificate?
54. MR PARRY: That certificate only applied in the Magistrates' Court. It does not extend to these proceedings. These proceedings would require a civil application for Legal Aid and his finances would not have allowed him to do that.
55. LORD JUSTICE TREACY: Right. The solicitor in the court office thinks otherwise, drawing our attention to section 21(4)A.
56. MR PARRY: Out of an abundance of caution, I will apply for such a certificate and Legal Aid taxation, if I may.
57. LORD JUSTICE TREACY: I just want to be clear what your application is then.
58. MR PARRY: It would be for a Legal Aid order in those circumstances and Legal Aid taxation.
59. LORD JUSTICE TREACY: Do you not have a Legal Aid order already?
60. MR PARRY: No, I do not, my Lord.
61. LORD JUSTICE TREACY: I am sorry. I thought you did.
62. MR PARRY: I do in relation to the Magistrates' Court, but not in relation to these proceedings.
63. LORD JUSTICE TREACY: I see.
64. MR PARRY: That is why I was applying for a defendant's costs order from central funds.
65. LORD JUSTICE TREACY: I see. Is that an order from central funds?
66. MR PARRY: It is, my Lord, yes. Does your Lordship require the provision?
67. LORD JUSTICE TREACY: Not at the moment, no. You have no Legal Aid for these proceedings.
68. MR PARRY: No Legal Aid for these proceedings.
69. LORD JUSTICE TREACY: I am sorry. I misunderstood the position Just tell me the provision again.
70. MR PARRY: 16(5)(a) of the Prosecution of Offences Act 1985, which says basically where any proceedings in a criminal cause or matter are determined by a Divisional Court of the Queen's Bench Division, the court may make a defendant's order in favour of the accused.
71. LORD JUSTICE TREACY: Right. The costs order is to be made in such sum as the court considers reasonably sufficient to compensate for any expenses properly incurred in the proceedings.
72. MR PARRY: Indeed.
73. LORD JUSTICE TREACY: Do you have a note of that?
74. MR PARRY: I do not have a note of them at the moment, my Lord. They would fall to be taxed in the usual course of events.
75. LORD JUSTICE TREACY: You want an order from central funds. Defendant's costs order from central funds and an order for legal aid taxation.
76. MR PARRY: Yes please.
77. LORD JUSTICE TREACY: Thank you.
78. Mr Lloyd, anything you want to say?
79. MR LLOYD: No. My Lord, I did wonder whether this was a case in which the court may reflect that the Crown Prosecution Service should receive some of its costs from the lower court. I appreciate that is an exceptional course.
80. LORD JUSTICE TREACY: It would be an exceptional course.
81. MR LLOYD: It would be. It would only be on the basis that if the court felt that the matter should have been compromised in April 2014 and on the basis that the court ought to have made more or any investigation of what in fact had transpired in its office. I am of course aware of the general principle that costs are not made against lower tribunals.
82. LORD JUSTICE TREACY: Yes.
83. MR LLOYD: It would be on that basis.
84. LORD JUSTICE TREACY: On an exceptional basis, yes.
85. MR LLOYD: And on the basis that the court has made itself in effect an active participant in the proceedings, albeit they have not attended it, but they have in effect descended into the proceedings as a party, it could be said. I feel I ought to make that observation. I do not press it strongly, but, given the court's own observations, I do raise it.
86. LORD JUSTICE TREACY: Okay. We will just rise and consider that for a second.
(Short adjournment)
87. LORD JUSTICE TREACY: There are two applications for costs before the court. The first is made on behalf of the successful claimant. Mr Parry has sought an order for a defendant's costs order payable out of central funds pursuant to section 16(5)(a) of the Prosecution of Offences Act 1985. We are satisfied that the necessary conditions apply and make that order, coupled with an order for Legal Aid taxation of the amount reasonably due.
88. The second application for costs has been made by Mr Lloyd on behalf of the Crown Prosecution Service. He seeks an order for the Crown Prosecution Service's costs to be made against the defendant court. The application is based upon matters of concern expressed by the court in the course of my judgment about the stance adopted by the court towards these proceedings. We have given particularly careful consideration to that application.
89. We look at the matter in the round and bear in mind that it was fairly acknowledged at an earlier stage by Mr Lloyd that the Crown Prosecution Service had themselves contributed to the decision which we have found to be erroneous in seeking to persuade the District Judge that the case should proceed. It has also been acknowledged by Mr Lloyd that it would be an unusual order for this court to make an order against an inferior court. It may be that there is a basis for the order to be made in the light of what we have said, but we have considered that we shall not exercise our discretion to order payment of costs in the way sought. In all the circumstances, the matter is sufficiently dealt with by an expression of the court's concern.
90. I am grateful to the Crown Prosecution Service for the helpful assistance which it has provide to the court during the course of these proceedings through Mr Lloyd.
91. Gentleman, does that conclude matters?
92. MR PARRY: It does. My learned friend very, very helpfully attended with a potential draft order which we can hand through for approval. We were just discussing the handwritten addition, which is to the effect that there shall be no retrial. Procedurally, we think that is a sufficient order from this court. We do technically think that the Crown Prosecution Service will then have to discontinue the proceedings by giving notice of that, but with the terms of this order we are comfortably sure that has to happen.
93. LORD JUSTICE TREACY: Yes. It is an order from the superior court.
94. MR PARRY: Precisely. We are confident this new order should cover that. If I can hand that up. (Handed)
95. LORD JUSTICE TREACY: Thank you. Yes. Do we need to recite that no other order for costs be made or are you content that it is omitted?
96. MR PARRY: I am content that it is omitted. There is no order.
97. LORD JUSTICE TREACY: The order does not provide for a warrant.
98. MR PARRY: No, it does not. Perhaps that needs to be added in.
99. LORD JUSTICE TREACY: It would be 1(c) the warrant issued for the claimant's arrest by the court on 4 February 2014 be quashed.
100. MR PARRY: I am grateful.
101. LORD JUSTICE TREACY: Can you make a typed copy of that and let the associate have that.
102. MR PARRY: Yes.
103. LORD JUSTICE TREACY: We agree the order in those terms. Thank you very much indeed.