[2007]JCA009
COURT OF APPEAL
16th January 2007
Before : |
The Honourable M.J. Beloff QC, President. P.D. Smith, Esq., QC and Dame Heather Steel. |
Peter Wilson Michel
And
Simone Anne Gallichan
-v-
The Attorney General
C. E. Whelan, Esq., Crown Advocate.
Advocate D. F. Le Quesne for P. W. Michel.
Advocate S. E. Fitz for S. A. Gallichan.
JUDGMENT
Smith JA:
1. This is an application on behalf of the Attorney General for his costs in respect of the applicants' unsuccessful applications for leave to appeal against their convictions. This judgment is the judgment of the Court.
2. The application is brought under Article 3(1) of the Costs in Criminal Cases (Jersey) Law 1961 which reads as follows:
"The Superior Number of the Royal Court or the Court of Appeal may, when it dismisses an appeal, or application for leave to appeal, under Part 3 of the Court of Appeal (Jersey) Law 1961, order the appellant to pay the whole or any part of the costs of the appeal or application, including the cost of any transcript of the shorthand notes of the proceedings at the trial made in accordance with the direction given by the Judicial Greffier under Article 42 of the said Law."
3. We have not been referred to any Jersey jurisprudence dealing with the principles which this Court should apply when considering whether to exercise its discretion and make the order sought. In Coke-Wallis and Anor -v- Attorney General [2004] JCA 007 this Court, differently constituted, made such an order against the unsuccessful applicants but we have no information as to how the Court approached its decision in that case. In the absence of any Jersey material that would assist us, we consider it reasonable to have regard to the English authorities on Section 18 of the Prosecution of Offences Act 1985 which provides, among other things, that the Court of Appeal may make such order for costs against an unsuccessful appellant or applicant for leave to appeal "as it considers just and reasonable" (Section 18(2)), a test which is both appropriate and flexible.
4. In R. -v- Northallerton Magistrates' Court, ex parte Dove [2000] 1 Cr. App. R. (S.) 136 at p. 142 the then Lord Chief Justice, Lord Bingham, set out a number of propositions derived from the authorities and applicable to applications for orders for prosecution costs in magistrates' courts. In our opinion the first three of these propositions are equally applicable to the kind of application presently before us and they are as follows:
"(1) An order to pay costs to the prosecutor should never exceed the sum which, having regard to the defendant's means and any other financial order imposed upon him, the defendant is able to pay and which it is reasonable to order the defendant to pay.
(2) Such an order should never exceed the sum which the prosecutor has actually and reasonably incurred.
(3) The purpose of such an order is to compensate the prosecutor and not to punish the defendant. Where the defendant has by his conduct put the prosecutor to avoidable expense he may, subject to his means, be ordered to pay some or all of that sum to the prosecutor."
5. Dealing with the propositions in reverse order we consider that the applicants have put the prosecutor to avoidable expense. Whatever the position in a case in which application for leave raises a novel or important point neither application did so in the instant case. Therefore, subject to their means, the applicants should bear the Attorney General's reasonable costs of resisting their applications.
6. As to the sum which the prosecutor has actually and reasonably incurred, the Attorney General has claimed a total of £58,566.55 and seeks an order for half that amount (claimed at £29,263 but which should be £29,283) against each applicant. The Costs in Criminal Cases Law does not prescribe the procedure by which costs awarded under Article 3(1) are to be measured and there is no applicable practice direction. In the Coke-Wallis case, to which we have referred, the Court ordered that the prosecution's costs be taxed in default of agreement and we understand that this was done by the Assistant Judicial Greffier acting on behalf of the Judicial Greffier. In the instant case Advocate LeQuesne, for Mr. Michel, submitted that quantification should be remitted to the Master of the Royal Court.
7. While there will obviously be cases in which measurement is likely to prove so complicated that remission to an appropriate official would be appropriate we do not feel that it is necessary to take this course in this case. We consider that we are in a position to assess the costs ourselves.
8. Over one-third of the total claimed on behalf of the Attorney General relates to disbursements by way of fees payable to English counsel. Given our view that the applications did not raise any point of significance or importance we do not consider that expenditure on this scale was reasonable. Nor do we think that the claim for over £38,000 in respect of time expended by those in the Law Officers' Department in dealing with the applications bears a realistic or proportionate relationship to the complexity, or rather the lack of complexity, of the arguments advanced in this Court.
9. In Griffiths -v- Pembrokeshire County Council [2000] Env. L.R. 622, an appeal to the Divisional Court by way of case stated in respect of an abatement notice under the Environmental Protection Act 1990, Kennedy LJ, delivering the judgment of the court, said (at p. 630) that he regarded the legal aid scale fees payable to solicitors and counsel as a useful marker as to the fees that it would be reasonable to expect an unsuccessful appellant to pay. In the instant case Mr. Le Quesne estimated Mr. Michel's costs at £20,000, including about £10,000 for English counsel.
10. In our judgment £20,000 would prima facie be a fair figure to allow the Attorney General in respect of his costs in resisting both applications. This leaves the question of the capacity of the applicants to pay.
11. Mr. Michel's realisable assets in Jersey are the subject of a saisie judiciare. Their value has been estimated by the Viscount's advisers at £14,000,000. Mr. Michel disputes this figure but he has not disclosed data relevant to his financial position which would enable us to assess what he can reasonably afford to pay. This being so we are entitled to draw reasonable inferences as to his capacity (see Re Northallerton Magistrates' Courts, cited above, at p. 142). On the assumption that he does not concede that all of his assets are liable to confiscation we consider that he has the means to discharge any costs order made against him.
12. As far as Mrs. Gallichan is concerned, the situation is quite different. She has sworn an affidavit. This indicates that although she has some money it is required for living expenses as currently she has no income. She is entitled to a share in the equity in the house she shares with her husband and her mother. In his written submissions on behalf of the Attorney General Mr. Whelan drew our attention to R -v- Julie Durose [2004] EWCA Crim 2188 in which the sentencing judge had taken into account the equity in the matrimonial home in assessing capacity to meet an order for costs and the Court of Appeal did not criticise this approach.
13. In our judgment there is a fundamental difference between the instant case and that of Julie Durose. In the latter case the crucial factor was that substantial profits had been made by fraud and the Court of Appeal took the view that, in that circumstance, the appellant could not complain if, having disposed of those profits, the meeting of an order against her would involve "an element of sacrifice" - i.e., the sale of the matrimonial home (see paragraph 8). In the instant case, by contrast, there is no suggestion that Mrs. Gallichan, unlike Mr. Michel, made any profits out of her criminal activity. Accordingly, we do not consider that it would be reasonable to make a costs order against her.
14. In his submissions on behalf of the Attorney General Mr. Whelan sought orders against each applicant for half of the Attorney General's costs. It is clear from the case of Julie Durose (in which an order for the full amount against both husband and wife was replaced by an order against the appellant wife for one half only) that this is the correct approach. Accordingly, we order that Mr. Michel pay £10,000 and we make no order against Mrs. Gallichan.
Authorities
Coke-Wallis and Anor -v- Attorney General [2004] JCA 007.
R. -v- Northallerton Magistrates' Court, ex parte Dove [2000] 1 Cr. App. R. (S.) 136 at p. 142.
Griffiths -v- Pembrokeshire County Council [2000] Env. L.R. 622.
R -v- Julie Durose [2004] EWCA Crim 2188.