Jersey Unreported Judgments

Costs judgment.

[2012]JRC019A

Royal Court

(Samedi)

23 January 2012

Before     :

J. A. Clyde-Smith, Esq., Commissioner, sitting alone.

The Attorney General

-v-

E

S. M. Baker, Esq., Crown Advocate for the Appellant.

Advocate A. P. Begg for the Respondent.

JUDGMENT

THE commissioner:

1.        The respondent applies for costs payable out of public funds following the appellant's appeal against the decision of Harris, Relief Magistrate, made on 15^th April, 2011, pursuant to Article 5(1) of the Sex Offenders (Jersey) Law 2010 ("the Sex Offenders Law") that a period of one year must expire before the respondent can make an application under Article 5(5) of the Sex Offenders Law for an order that he no longer be subject to the notification requirements.  For the reasons set out in the Court's judgment of the 7^th November, 2011, (AG-v-E [2011] JRC 217B), the Court set aside the decision of the Relief Magistrate, substituting a period of three years. 

2.        When the application for costs was made, Mr Begg was immediately handicapped by the apparent absence of any express power under the Sex Offenders Law enabling the Court to order costs payable out of public funds.  He submitted that the Court could do so exercising its inherent jurisdiction but produced no authority in support of that proposition.  Mr Baker agreed that there was no express power in the Sex Offenders Law but to assist the respondent questioned whether the Court might be able to make such an order pursuant to its power to make incidental orders under Article 18(2) (b) of the Sex Offenders Law (which I set out below).  I agreed that at first blush it would seem that the Court might have power to do so, but it was clear the matter needed further research.  The application was therefore adjourned to enable the parties to make written submissions and it was agreed by them that I could determine the application on those written submissions alone.  Those submissions have now been filed. 

3.        It is common ground between the parties that there are no express provisions within the Sex Offenders Law which give the Court the power on an appeal to order costs at all let alone costs payable out of public funds.  There is reference to costs where an appeal is abandoned under Rule 11 of the Sex Offenders Law (Magistrate's Court Appeals Rules) 2010 ("the Rules") and I will come to that in a moment. 

4.        Mr Begg did not argue, rightly in my view, that the Court had an inherent power to order costs payable out of public funds.  He submitted that such a power is implied in the general wording of Article 18(2)(b), which is in the following terms:-

"18 (2)             On an appeal under this Part, the Royal Court or the Court of Appeal as the case may be -

(a)       may make any order it considers necessary to give effect to its determination of the appeal; and

(b)       may also make any incidental or consequential order as appears to it to be just."

5.        Mr Baker submitted that a power in the Court to cost the exchequer money should not be hidden inferentially in a general provision of the sort relied upon by the respondent.  In support of that proposition, he cited the House of Lords decision in Steele Ford & Newton-v-Crown Prosecution Service (No 2) [1994] 1 AC 22 in which it was held that section 51(1) of the Supreme Court Act 1981 which provided that "The Court shall have full power to determine by whom and to what extent the costs are to be paid" did not empower the Court to order costs to be paid out of central funds where this power was not expressly provided, since to do so would infringe the constitutional principle that no money can be taken out of central funds except under a distinct authorisation from Parliament itself.  The case concerned successful appeals to the Civil Division of the Court of Appeal by four solicitors who had been ordered personally to meet the costs of their clients' defences by the Crown Court.  Following their successful appeals they were again successful in applying for the costs of their appeals out of central funds in the Court of Appeal.  However, on an appeal to the House of Lords by the Lord Chancellor it was held that the circumstances in which an order could be made for the payment of costs out of money provided by Parliament had historically been precisely and specifically defined, such that no power could be implied into statute where no express provision existed.  The guiding constitutional principle identified was that the executive should not be held responsible for acts of the judiciary. 

6.        In R-v-Moore [2003] 1 WLR 2170 the defendant successfully appealed to the Criminal Division of the English Court of Appeal the finding of contempt made against him in the Crown Court.  The defendant then contended that the Court of Appeal had a power to award him his costs out of central funds as this could be implied from the wording of section 13(3) of the Administration of Justice Act 1960, which provides that "a court may make such other order as may be just" (the respondent's submission in this case).  He argued further that a ruling that he was not able to recover the costs of his legal representation would be contrary to his right to legal assistance of his own choosing under Article 6 of the European Convention on Human Rights.  He was unsuccessful on both points, the Court of Appeal affirming the decision in Steele Ford & Newton and holding that in the absence of clear, express and unambiguous language expressly conferring a power to order payment of costs out of public funds, there was no such power.  Article 6 was deemed not to be engaged. 

7.        The Jersey Court of Appeal considered this principle in Channel Islands Knitwear Company Limited-v-Hotchkiss [2001] JLR 570, which was concerned with the jurisdiction of the Court of Appeal in civil proceedings to award costs out of public funds pursuant to Article 16 of the Court of Appeal (Jersey) Law 1961, which is in very similar terms to section 51(1) of the Supreme Court Act 1981 considered by the House of Lords in Steele Ford:-

"The costs of and incidental to all proceedings in the Court of Appeal under this Part of this Law shall be in the discretion of the Court, and the Court shall have full power to determine by whom and to what extent the costs are to be paid."

8.        In his judgment (at paragraph 15), Smith JA distinguished Steele Ford on two grounds; firstly that the States of Jersey are neither "the Crown" nor a component of the Crown and secondly, that the legislative history adumbrated by Lord Bridge in Steele Ford has not been replicated in Jersey.  He concluded that Article 16 alone did empower the Court to order costs against the States of Jersey.  However, he did not demur from the principle that clear statutory authority was required for costs to be paid out of public funds, saying this at paragraph 20:-

"There are two other portions of Lord Bridge's speech in the Steele Ford & Newton case upon which Mr Whelan relied.  Lord Bridge emphasized the importance of the requirement of clear statutory authority for public expenditure.  This constitutional principle was not contested by Mr Santos-Costa.  However, in my view, there is no question of an order for costs against the States in the instant case contravening this principle.  If art. 16 is sufficiently clearly worded to authorize this court to order that the costs of a party to proceedings, in which the States are another party, be paid out of public revenues (which it is), then it seems to me to follow inexorably that art. 16 is sufficiently clearly worded to authorize this court to order that the costs of a party to proceedings in which the States are not a party be paid out of public revenues."

9.        Southwell, JA (at paragraph 36) expressed himself as being in agreement with this.  Carey, JA did not agree that Steele Ford could be distinguished, saying this at paragraph 56:-

"Accordingly, I find nothing to distinguish this case from Steele Ford.  I do not consider that this court can impose a duty to pay on the States of Jersey any more than the House of Lords felt it could where the necessary funds had not been provided by Parliament.  The States is the body vested with the responsibility for the oversight of the public purse, which is funded by money collected by way of tax, and it is not for this court to extend the range of potential liabilities that may fall on the States.  It would be for the States, if it were so minded, to make legislative provision to enable this court, wherever it finds an injustice has been suffered by a litigant, to have power to award costs from public funds."

10.      Thus, all three members of the Court of Appeal accepted the principle that clear statutory authority was required for the payment of costs out of public funds but the majority (Smith JA and Southwell JA) held that Article 16 did provide that authority, Carey JA dissenting.  The difficulty for the respondent is that there is nothing remotely equivalent to Article 16 in the Sex Offenders Law. 

11.      I find that the principle that clear authority is required for the payment of costs out of public funds applies under Jersey law. 

12.      Rule 11 of the Rules is in the following terms:-

"11     Abandonment

(1)       An appellant at any time may abandon his or her appeal by written notice to the Greffier, and on such notice being given the appeal shall be taken to have been dismissed. 

(2)       Where an appeal is taken to have been dismissed under this Rule, the Royal Court may still make an award of costs."

13.      This Rule was made pursuant to Article 29 of the Sex Offenders Law which gives the Superior Number power to make rules "necessary and convenient to give effect to the Law".  A rule can be used to give effect to the Sex Offenders Law, but it cannot be used to confer upon the Court a power it does not enjoy under the Law itself.  In any event Rule 11 does not purport to confer upon the Court a power to award costs.  It is limited to abandonment and is procedural in effect, namely that even after an appeal is dismissed through abandonment, the Court may still make an order for costs.  The Rule pre-supposes an existing jurisdiction to do so. 

14.      Did the draftsman of the Rules assume in error that the Sex Offenders Law did give the Court authority to award costs, or did the draftsman assume that such authority was contained elsewhere?  As to the latter, it is the case the Article 18(3) of the Sex Offenders Law provides as follows:-

"(3)     An appeal under Article 19, 20, 21, 22, 24, 25 or 26 shall be taken to be an appeal in criminal proceedings while an appeal under Article 23 shall be taken to be an appeal in civil proceedings."

15.      It might be argued that this provision (this being an appeal under Article 20) gives the Court the same powers to award costs as it enjoys in criminal proceedings.  For that purpose it would be necessary to argue that the specification of a period under Article 5(1) of the Sex Offenders Law forms part of the sentence of the criminal court, so that whilst the Court in AG-v-M [2011] JRC 174 at paragraph 5 has described the notification requirements as a civil matter and therefore not part of the sentence, for the purposes of an appeal, it would be regarded as part of the sentence.  Even if this route could properly be followed, it does not assist, as Mr Begg acknowledges, in that:-

(i)        Article 2 of the Costs in Criminal Cases (Jersey) Law 1961 only permits the Royal Court to award costs where a person is convicted, discharged or acquitted before it.  It has no power under that Law to award costs on an appeal to it from the Magistrate's Court. 

(ii)       Costs on appeals from the Magistrate's Court to the Royal Court are governed by the provisions of the Magistrate's Court (Miscellaneous Provisions) (Jersey) Law 1949, but this appeal is not brought under that Law. 

16.      Thus, the respondent is constrained to fall back on Article 18(2)(b).  That provision does not provide any power to award costs let alone an express power authorising the payment of costs out of public funds and on the authority of Steele Ford, no such power can be implied.  On the authority of Moore a power to make such orders as are just is not sufficient. 

17.      Mr Begg submitted that in the alternative, he could be regarded as an "amicus curiae" and his costs paid on that basis, pursuant to the decision of the Court of Appeal in Ahmed-v-AG [2005] JCA 121.  In that case, the advocate had acted as an "amicus curiae" for the purposes of the appeal at the request of the Court and sought an order for his costs to be paid out of public funds.  In the judgment of the Court Steele JA confirmed that the power of the Court of Appeal to make an award of costs in relation to an appeal in a criminal matter is governed by Article 3 of the Costs in Criminal Cases (Jersey) Law 1961 and concluded as follows:-

"In our view, it is possible to construe Article 3(3)(a) as being sufficiently wide to cover a case such as the present, in which an amicus curiae is appointed to assist the Court, but to do so by giving assistance to the appellant in the presentation of his appeal.  But because we are of the view that the power of this Court to make an order should not be limited to cases where an amicus gives assistance by presenting the appellant's submission to the Court, we consider that the better view is that where an amicus is appointed as a friend of the Court, the reasonable fees and expenses of that amicus should not be regarded as the "costs" of either party which are to be allowed (or not) under sub-section (4), but rather as part of the costs and expenses of the administration of justice which should be paid out of public funds in any event without the necessity for any order by the Court.  Nevertheless, out of an abundance of caution, we make the order requested."

18.      Steele Ford and Moore were not cited to the Court of Appeal and its comments are arguably obiter; certainly it did not identify the source of statutory power which would enable costs to be paid as part of the costs and expenses of the administration of justice.  However the fact of the matter is that Mr Begg was not appointed amicus curiae by the Court and is claiming "the costs" of his client out of public funds.  The Court can only order costs to be paid out of public funds where there is clear authority to do so and in this case there is none.  

19.      I would be surprised if it was the intention of the legislature that the Court should have no power either to award costs generally or specifically to award costs payable out of public funds, as the power to award costs is an essential tool available to the Court to ensure justice.  In my view, it is more likely that this is a serious oversight which needs to be remedied.  

20.       In any event I have no alternative but to refuse the application for the respondent's costs to be paid out of public funds because I find I have no power to make such an order. 

21.      I should add that if I did have power to order the respondent's costs to be paid out of public funds, then I would have made an order in favour of the respondent.  I accept, as Mr Baker submitted, that the appellant acted reasonably and properly in the public interest in bringing the appeal and was successful in establishing that the period was unreasonably short.  I also accept Mr Begg's submissions about the serious financial implications to the respondent of this prosecution. 

22.      However, the key point, in my view, is that the respondent did not argue before the Relief Magistrate that he should specify anything less than five years.  It was the Relief Magistrate who, on his own initiative, decided to reduce the period to one year.  Through no fault of his own, the respondent therefore found himself the subject of an appeal brought in the public interest and whilst it could be said that he had the option of letting the matter go by default, it seems a harsh line to take when the matter affects him so directly.  At the very least he was entitled to be there in order to make submissions on the period the Court should impose if the period fixed by the Relief magistrate was set aside.  My sense of justice leads me to the conclusion that the respondent should have his costs paid out of public funds and if I had the power to do so, I would have made an order to that effect. 

Authorities

Sex Offenders (Jersey) Law 2010.

Sex Offenders Law (Magistrate's Court Appeals Rules) 2010.

Supreme Court Act 1981.

Administration of Justice Act 1960.

Court of Appeal (Jersey) Law 1961.

Costs in Criminal Cases (Jersey) Law 1961.

Magistrate's Court (Miscellaneous Provisions) (Jersey) Law 1949.

Criminal Cases (Jersey) Law 1961.

European Convention on Human Rights.

AG-v-E [2011] JRC 217B.

Steele Ford & Newton-v-Crown Prosecution Service (No 2) [1994] 1 AC 22.

R-v-Moore [2003] 1 WLR 2170.

Channel Islands Knitwear Company Limited-v-Hotchkiss [2001] JLR 570.

AG-v-M [2011] JRC 174.

Ahmed-v-AG [2005] JCA 121.