England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand London WC2
		07 March 1991

LORD JUSTICE NOLAN:

This is an appeal by the Crown prosecution Service against a decision of the justices for the County of Hertford sitting as a magistrates' court at Hatfield, whereby the prosecution was ordered to pay the sum of £1,548·4347 to the defendants by way of costs. The magistrates made the order in reliance upon the powers conferred on them by s.19 of the prosecution of Offences Act 1985 and the regulations made thereunder. The prosecution contends, firstly, that the circumstances of the present case fall outside the scope of those powers, and that consequently the magistrates had no right to make any order for costs against it, and, secondly, that, in any event, the magistrates were not entitled on the facts before them to make the order which they did. The first of these contentions was not advanced before the magistrates, but forms the basis of the first of the questions which they put to us, and we shall deal with it accordingly. The matter arose in this way.

On 12 September 1989 Chief Inspector Padget of the Hertfordshire Constabulary preferred informations against the defendants alleging that on or about 12 May 1989 the first respondent used on a road, and the second respondent permitted to be so used, a goods vehicle for which a platings certificate had been issued when the second axle weight of the vehicle exceeded the permitted weight shown in the certificate, contrary to reg 80 of the Road Vehicles (Construction and Use) Regulations 1986, SI 1986/1078, and s.40(5) of the Road Traffic Act 1972. The witness statement which was put forward to support the information specified the gross weight and the front axle weight of the vehicle, but not the second axle weight. On 3 October 1989 the prosecution received the relevant papers for review from the police and appears at that stage to have taken over the conduct of the proceedings. The defendants were summonsed to appear before the magistrates on 23 October 1989. Before that date, they had both entered written pleas of guilty, but both added riders to their pleas suggesting that the weighbridge upon which the police had tested the vehicle was not suitable for measuring separate axle weights. In view of the riders, the magistrates rightly refused to accept the written pleas of guilty, and the case was adjourned to 13 November 1989 so as to enable the defendants to clarify their pleas. No such clarification was received by that date, but at the request of the prosecution representative the court adjourned the case again, this time until 4 December 1989, for trial by way of written statements.

On 4 December 1989 the case was further adjourned until 11 December at the request of the solicitor for the respondent company, to enable it to be legally represented. On the latter date a yet further adjournment until 8 January 1990 was granted at the request of the solicitors for the defendants so as to enable them to make written representations to the prosecution concerning the accuracy of the weighbridge. Before this last adjournment was requested, a discussion had taken place in court between the respondent's solicitor, the prosecution representative and the magistrates, in the course of which the chairman of the bench commented that from what had been said about the prosecution evidence the summonses appeared to be referring to the wrong axle.

On 13 December 1989 the defendants' solicitor wrote a long letter to the prosecution taking up the chairman's point as well as amplifying the proposition that the weighbridge was unsuitable for measuring axle weights, and reinforcing that proposition with an expert's report. On 4 January 1990 the prosecution received a memorandum from the police officer who had investigated the matter in which that officer, in effect, accepted the expert's view that the weighbridge which had been used was unsuitable, and recommended that it would be wiser to discontinue the prosecution. On 5 January 1990 the prosecution sent a notice of discontinuance to the clerk to the justices. It was sent by first class post and was received on 8 January, apparently before the court sat on that day.

Section 23(3) of the Prosecution of Offences Act 1985 provides that, where such a notice is given during the preliminary stages of proceedings, the proceedings 'shall be discontinued with effect from the giving of that notice but may be revived by notice given by the accused under subsection (7) below'. The reason given in the notice, in accordance with s.23(5), for the prosecution not wanting the proceedings to continue was 'insufficient evidence'.

The defendants' solicitor learnt that the proceedings were to be discontinued in the course of a telephone conversation with officers of the prosecution on 5 January 1990. On the same day he informed both the prosecution and the justices' clerks' office that an application would be made on 8 January 1990 for costs against the prosecution.

The prosecution had also written to the defendants' solicitor on 5 January to inform him, in accordance with s.23(6), of the notice sent under sub-s (3) and of the defendants' right to require the proceedings to be continued. This letter had not been received by the defendants' solicitor at the time of the hearing on 8 January 1990, and the defendants did not exercise their right to require the proceedings to be continued.

That is the background against which the application for costs against the prosecution was heard by the magistrates on 8 January 1990. I take first the question whether they had jurisdiction to deal with it.

Section 19 of the Prosecution of Offences Act 1985 provides, so far as relevant, 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 … '

The regulations made pursuant to that section are the Costs in Criminal Cases (General) Regulations 1986, SI 1986/1335. Regulation 3 provides:

'(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.

(2) Before making an order under paragraph (1), the court shall take into account any other order as to costs (including any legal aid order) which has been made in respect of the proceedings.

(3) An order made under paragraph (1) shall specify the amount of costs to be paid in pursuance of the order.

(4) Where an order under paragraph (1) has been made, the court may take that order into account when making any other order as to costs in respect of the proceedings … '

The first contention of the prosecution can be summarised in the form of the simple propositions that (1) the magistrates only had power to award costs under reg 3(1) 'where at any time during criminal proceedings' they were satisfied that costs had been incurred as a result of an unnecessary or improper act or omission, (2) by virtue of s.23(3) the proceedings in the present case were discontinued with effect from the giving of the notice of discontinuance to the magistrates, which occurred before the defendants' application for costs was made, and (3) therefore the magistrates had no power to order costs against the prosecution under reg 3 or at all. In putting forward this contention on behalf of the prosecution, Mr Field invited us to contrast the provisions of s.19(1) and (2)(a) with those of s.16 which provide for the award of costs out of central funds. Express provision is made by s.16(1)(a) for the award of costs in a case where an information is not proceeded with; and sub-ss (6) and (10) make it clear that in such a case the award of costs is not limited to costs incurred in the proceedings, but may include all costs incurred 'in or about the defence'. Mr Field submitted that, if the defendant wished to pursue a claim for costs against the prosecution in a case where the proceedings had been discontinued, his only means of doing so was to give notice under s.23(7) that he wished the proceedings to continue.

If the first contention of the prosecution were right the results would be startling. In the first place, it is clear that before the passing of the 1985 Act there was no material difference between the procedure for awarding costs out of central funds and that for awarding costs against the prosecution in cases in which an information had not been proceeded with: see s.12 of the Costs in Criminal Cases Act 1973. The language of s.19 of the 1985 Act does not suggest that Parliament intended to impose a procedural restriction upon the magistrates' powers such as that for which the prosecution contends. Secondly, if the prosecution has caused costs to be incurred by an unnecessary or improper act or omission then it would be strange indeed if, by giving notice of discontinuance under s.23(3), it could put the defendant at the disadvantage of having to revive the proceedings in order to claim costs against it. I note in this connection that although the prosecutor is obliged under s.23(5) to inform the justices' clerk of his reasons for not wanting the proceedings to continue he is under no such obligation in relation to the defendant (see sub-s (6)), though his reasons may very well have a bearing on his liability for costs. It is also worth noting that the pro-forma letter which was sent by the prosecution to the defendants on 5 January 1990, informing them pursuant to sub-s (6) of their right to require the proceedings to be continued, contained the sentence: 'It is however, unnecessary to apply for the proceedings to be continued in order to apply for your costs.' Mr Field says that this is true in relation to a claim for costs under s.16, but the fact remains that it is wholly inconsistent with the contention of the prosecution in relation to s.19.

Finally, and perhaps most cogently of all, 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. The somewhat broader provisions in s.16 upon which Mr Field has sought to rely by way of contrast are, I think, designed simply to allow the defendant to be reimbursed out of central funds for costs other than those incurred in court proceedings. I conclude, therefore, that the first contention of the prosecution fails.

I can deal with the second contention of the prosecution more shortly. Mr Field submitted that on the evidence before the magistrates no reasonable bench could have awarded costs against the prosecution. The erroneous reference to the second axle in the information could have been corrected by an amendment, with the leave of the court, and did not in itself cause any expense or disadvantage to the defendants. As regards the unsuitability of the weighbridge for measuring separate axle weights, the prosecution had acted fairly and properly in discontinuing the proceedings as soon as the police accepted the report of the defendants' expert. The prosecution did not merit the censure implicit in the magistrates' finding that the failure to discontinue the proceedings at an earlier stage amounted to an improper omission.

I do not accept these submissions. The magistrates based their opinion firstly upon the failure of the prosecution to review the prosecution file when it was passed to them on 3 October 1989. In my judgment, they were entitled to regard this as an important factor. Had the file been reviewed, the discrepancy between the reference to the second axle in the information and the lack of any corresponding reference in the supporting evidence of the weights would have been immediately apparent, and would or should have prompted further inquiries from the police. The fact that the error in the information might have been cured by an amendment does nothing to excuse the original omission. Secondly, the magistrates criticised the failure of the prosecution to take account of the doubts expressed by the defendants about the suitability of the weighbridge when they tendered their written pleas. The magistrates say, with justification, that the prosecution should have reviewed the case thoroughly before the matter came back before the court on 13 November 1989, and was adjourned for trial on 4 December. Thirdly, the magistrates point to the renewed doubts about the weighbridge evidence which were expressed by the defendants' solicitor at the hearing on 11 December, which, of course, was also the date upon which the chairman drew attention to the error in the information. No action whatever was taken upon the chairman's remarks, and the notice of discontinuance was only sent off three days before the hearing fixed for 8 January 1990. The prosecution was discontinued because the defendants had demonstrated, at considerable expense, that it was based on insufficient evidence.

In these circumstances, it seems to me impossible to maintain that there were no grounds upon which the magistrates could reasonably conclude that there had been an improper omission on the part of the appellant. I would add in this connection that the word 'improper' in this context 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.

I would for these reasons give an affirmative answer to both questions in the case stated and would dismiss the appeal.

JUSTICE ROCH:

I agree. On the second question in the case stated, the costs that were awarded to the defendants by the magistrates seem to me to have been costs incurred by the defendants, in preparing to defend the proceedings brought by the Crown Prosecution Service (the prosecution), which included the obtaining of an expert's report to the effect that the weighbridge to which the defendants' vehicle was taken by the police would not give accurate readings whilst being used as an axle weigher, that is to say whilst being used in the way the police had used it. That assertion by the defendants' expert was accepted by the police because they arranged to have that particular weighbridge removed from the list of available weighbridges.

That point was raised by both defendants in their written pleas of guilty under the heading 'Mitigating Circumstances', which led the magistrates on 23 October 1989 to treat their written guilty pleas as equivocal. Thereafter the prosecution did nothing to discover whether or not the defendants' assertion that the weighbridge was unreliable as an axle weigher was correct until after they had received the defendants' solicitors' letter of 13 December 1989, which included with it a copy of the expert's report. It was 19 December 1989 before the prosecution started to investigate whether the weighbridge was reliable. It should have been clear to the prosecution that if the weighbridge was not reliable as an axle weigher they would have no prospect of establishing beyond reasonable doubt the charges brought against the defendants.

The facts were, in my judgment, such that the justices were entitled to say that they were satisfied that the defendants had incurred costs as a result of an unnecessary or improper omission by the prosecution. I do not consider the conclusion reached by the magistrates to be so unreasonable as to warrant this court reversing the order that they made.

With regard to the first question raised in the case stated, namely whether the justices had jurisdiction or power to make an order for costs, the notice of discontinuance having been given to the clerk to the magistrates before the order for costs was made, the matter, in my judgment, turns on the effect of a notice of discontinuance.

Section 23(3) of the Prosecution of Offences Act 1985 provides:

'Where, at any time during the preliminary stages of the proceedings, the Director gives notice under this section to the clerk of the court that he does not want the proceedings to continue, they shall be discontinued with effect from the giving of that notice but may be revived by notice given by the accused under subsection (7) below.'

Section 23(7) provides:

'Where the Director has given notice under subsection (3) above, the accused shall, if he wants the proceedings to continue, give notice to that effect to the clerk of the court within the prescribed period; and where notice is so given the proceedings shall continue as if no notice had been given by the Director under subsection (3) above.'

Section 23(9) provides:

'The discontinuance of any proceedings by virtue of this section shall not prevent the institution of fresh proceedings in respect of the same offence.'

It would seem that the power that an accused person has to give notice that he wishes the proceedings to continue by s.23(7) was given to enable an accused person either to clear his name by demonstrating before the magistrates that he was not guilty of the offence charged, or to obtain an acquittal so that he would not be at risk of having to face fresh proceedings in respect of the same alleged offence. It is, in my opinion, most unlikely that Parliament intended that an accused person should have to give written notice within 35 days of the prosecutor's notice of discontinuance and revive the whole of the proceedings simply to make an application to the magistrates for costs.

The prosecution concede that a notice under s.23(7) of the 1985 Act is not required where the accused person wishes to apply to the magistrates for costs from central funds. It is accepted that, despite the notice of discontinuance, the magistrates still have jurisdiction under s.16(1) of the 1985 Act to make an order in favour of the accused for a payment to be made out of central funds in respect of his costs, that is to say a 'defendant's costs order'. It is said that the notice of discontinuance means that the information laid before the justices charging the accused with an offence is simply not being proceeded with within the terms of s.16(1)(a). Thus the prosecution accept that a notice of discontinuance does not render the magistrates court functus officio for all purposes.

However, it is argued that the position in relation to cost orders inter partes which are covered by s.19 of the 1985 Act is different. Section 19(1) of the 1985 Act reads:

'The Lord Chancellor may by regulations make provision empowering magistrates' courts … 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.'

Regulations have been made by the Lord Chancellor, namely the Costs in Criminal Cases (General) Regulations 1986, SI 1986/1335. The regulation relevant to this issue is reg 3(1). That reads:

'Subject to the provisions of this regulation, where at any time during criminal proceedings—(a) a magistrates' 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.'

Counsel for the prosecution relies on the words in that regulation 'at any time during criminal proceedings'. Counsel says that that means that an application for costs under s.19 can only be made 'during the criminal proceedings', and cannot therefore be made after a notice of discontinuance has been given because the criminal proceedings are 'discontinued with effect from the giving of that notice', under s.23(4).

Mr Coker for the defendants argues that those words delimit the time during which the unnecessary or improper act or omission and the incurring of costs as a result thereof must occur.

I prefer the reading of that regulation advanced by Mr Coker. It is to be noticed that para (2) of reg 3 requires the court before making an order under para (1) of the regulation to take into account any other order as to costs including any legal aid order which has been made in respect of the proceedings. That regulation contemplates that the court may be making or may have made orders for costs out of central funds or legal aid orders prior to or at the same time as the court is considering an application for costs under s.19(1).

It is important, in my judgment, to look at the law as it stood prior to the passing of the 1985 Act. In R v Bolton Justices, ex p Wildish (1983) 147 JP 309 a Divisional Court consisting of Griffiths L.J. and McCullough J. decided that, where an information had been withdrawn, an application for costs to be paid by the prosecutor to the accused could be made to a magistrates' court for the same area as that in which the information was laid either on the date on which the proceedings were withdrawn or at a later date. Consequently, where the magistrates had refused to entertain such an application, an order of mandamus would be issued directing them to hear such an application. If it has been the intention of Parliament in the Act or in the statutory instrument made under the Act to change the law on this point, I would have expected it to have been done expressly, either by it being provided in s.23 of the 1985 Act or in the Magistrates' Courts (Discontinuance of Proceedings) Rules 1986, SI 1986/367, that a counter-notice by the accused was required to enable him to make an application for costs under s.19, or by s.19 or the regulations made under that section being in terms which made it clear that no application for costs under that section could be made once the proceedings had been discontinued.

The conclusion that I have reached as to the effect of a notice of discontinuance by the prosecutor under s.23(3) of the 1985 Act is that the magistrates 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. It is to be observed that this conclusion will not necessarily always favour the accused person. There may be circumstances where it will be open to the prosecutor following the notice of discontinuance to make application under s.19(1) of the 1985 Act for an order of costs against the accused person.

For those reasons and for the reasons given by Nolan L.J., I would answer both questions in the case stated in the affirmative and dismiss the appeal.