Jersey Unreported Judgments

2001/71

5 pages

ROYAL COURT

(Samedi Division)

 

26^th March, 2001

 

Before:    Sir Philip Bailhache, Bailiff and

                                                      Jurats de Veulle and Bullen.

 

 

                                                        Ronald George Romeril                                                       

 

-v-

 

                                                         The Attorney General

 

Magistrate's Court Appeal

 

 

Appeal by case stated under Article 18 of the Police Court (Miscellaneous Provisions) (Jersey) Law, 1949 from refusal to award the appellant his costs, following dismissal of 1 charge of assault and 1 charge of impersonating a police officer.

Appeal allowed.

 

 

 

Advocate S.E. Fitz for the Appellant

Advocate C. Yates on behalf of the Attorney General.

 

 

 

           

JUDGMENT

 

THE BAILIFF:

 

1. This is an appeal by Ronald George Romeril against the refusal of the Relief Magistrate to award him costs following his acquittal on charges of assault and impersonating a police officer contrary to Article 15(1) of the Police Force (Jersey) Law, 1974.

 

2. The history of the matter can be shortly stated.   The Appellant was driving along Queens Road in a line of traffic when he was overtaken by a young man on a motor cycle who was travelling, according to the Appellant,  at a very high speed.

 

3. The Appellant thought that the youth was driving dangerously and was sufficiently irritated to follow him into a private road, where the motor cyclist stopped.   There was a confrontation, marked - according to an independent witness -  by the use of bad language on both sides.

 

4. The motor cyclist alleged that the Appellant had said that he was a police officer, and that he was going to 'book' him.   He also alleged that the Appellant punched him causing a cut lip. It is worth stating that the Appellant is a man of 67, whereas the motor cyclist was significantly younger.  

 

5. The Appellant was interviewed by the Police and co-operated fully in answering all the questions put to him by the investigating officer.  He denied the allegations made against him, and at trial put his character in issue.  He is a man who has given extensive honorary service to his Parish and has an unblemished record apart from three convictions for speeding which took place 35, 21, and 10 years ago, respectively.

 

6. Some evidence was heard by the Relief Magistrate on 3^rd September, 1999, following which he adjourned the trial to 9^th December, 1999.  On that day the Appellant gave evidence.  The Magistrate said at the conclusion of that hearing that he wished to reserve judgment, but indicated that he would deliver it before Christmas.   In the event the trial did not resume until 16th March, 2000, when the Appellant was acquitted.    He applied for his costs, but the Magistrate refused.   On 23^rd March, 2000, the Appellant applied to the Magistrate to state a case for the opinion of this Court alleging that the refusal to award him costs was wrong in law.    It was not until 16^th January, 2001, that the Relief Magistrate delivered a statement of case in which he gave his reason for refusing costs as being that the Appellant had pursued the motor cyclist with a view to confronting him and that to that extent the Appellant had brought the charges upon himself.

 

7. Miss Fitz, who appeared for the Appellant, submitted that the Relief Magistrate was wrong to refuse to award costs.  The power of the Royal Court to order that the costs of an acquitted or discharged person be paid out of public funds arises from Article 2 of the Costs in Criminal Cases (Jersey) Law 1961.    The relevant parts of that Article are as follows:

 

"Subject to the provisions of this Article, where any person is prosecuted or tried before a Court to which this Article applies, the Court may (c) if the accused is discharged from the prosecution, or acquitted, order the payment out of public funds of the costs of the defence".

 

8. In Attorney General -v- Bouchard (1989) JLR 350, the Court considered the circumstances in which the Court should refuse to make an order for costs, and adopted a practice direction issued under equivalent English legalisation.  The relevant part of that practice direction provides:

 

It should be accepted as normal practice that an order should normally be made for the payment of the costs of an acquitted person out of central funds under section 3 of the 1973 Act, unless there are positive reasons for making a different order.   Examples of such reasons are:

 

(a) where the prosecution has acted spitefully or has instituted or continued proceeding without reasonable cause, the Defendants costs should be paid by the Prosecutor under section 4 of the 1973 Act.

(b)  where the Defendant's own conduct has brought suspicion upon himself and has misled the Prosecution into thinking that the case against him is stronger than it is, the Defendant can be left to pay his own costs.

(c) where there is ample evidence to support a conviction but the Defendant is acquitted on a technicality which has no merit.  Here again the Defendant can be left to pay his own costs.

 

9. It is worth noting in passing that the enactment of the Human Rights Act 1998 has led to the deletion of paragraph [c], which we have just cited, from the practice direction in England.

 

10. In Bouchard the Court held that in example (b) above, the phrases were to be read conjunctively so that the Defendant's conduct should be such, not only as to have brought suspicion upon himself, but also to have misled the Prosecution into thinking that the case against him was stronger than in fact it was.

 

11. Miss Fitz relied upon the Bouchard case and submitted that the Appellant had been entirely co-operative with the police, and could not be said to have misled the Prosecution in any way.  She also contended that the mere fact of following the motor cyclist into the private road could not be said in itself to have brought suspicion upon the Appellant.  We agree. 

 

12. Mr Yates for the Attorney General was not able to furnish any other reason for refusing the Appellant his costs.  It follows that the Magistrate did not, in our judgment, apply the correct test in determining whether to award costs, and that this appeal must therefore be allowed.

 

13. We add a few words only by way of general guidance to the Magistrates following the enactment of the Human Rights (Jersey) Law 2000 , which will, when it comes into force, incorporate into domestic law provisions of the European Convention on Human Rights.  In England, as we have said, equivalent legislation has caused the amendment of the practice direction which was considered and adopted in Bouchard.   The same approach should be adopted here.

 

14. It sometimes happens that a Magistrate who has reached the conclusion that an accused person should be acquitted  nevertheless feels that the accused's conduct is worthy of criticism in some way.  It is tempting in such circumstances to seek to penalise him by refusing to award him costs.   This is not an appropriate reaction.  If an accused person has been acquitted he has been found to be not guilty of the offence with which he has been charged.   Other than in exceptional circumstances, and the practice direction sets out an example of such circumstances, he should receive an award of costs.

 

15. Finally, counsel submitted that there was excessive delay not only in bringing this case to a conclusion in the Court below but also in providing the statement of case for appeal.    The Magistrates Court is a Court of summary jurisdiction.  Once a case has begun and evidence has been heard, any adjournment should be measured in days rather than weeks, and never in months.  Once the evidence has been heard to a conclusion it is perfectly reasonable for the Magistrate to take a little time to consider his decision, but a delay of 4 months is quite unreasonable and unfair to an accused person.   A delay of 10 months to produce a statement of case for appeal is also far too long.  These delays would, of themselves, have justified the setting aside of the Magistrate's decision.  We therefore allow the appeal and order that the costs of the Appellant both here and below be paid out of public funds

 

 

 

 

 

Authorities

 

Forrest -v- A.G. (10^th October, 1994) Jersey Unreported.

 

Lagadec Doléance 20^th February, 1996) Jersey Unreported.

 

A.G -v- Bouchard (1989) JLR.350

 

Gilbraith -v- A.G (1992) JLR.190.

 

In South West Surrey Magistrate's Court ex p. James (2000) Cr.L.R.692