Jersey Unreported Judgments

Breach of Covid-19 Regulations - Appeal against Prosecution Costs Order

[2021]JRC308

Royal Court

(Samedi)

9 December 2021

Before     :

J. A. Clyde-Smith O.B.E., Commissioner, and Jurats Blampied, Dulake and Nicolle

Royal Yacht Hotel

-v-

The Attorney General

Advocate M. St J. O'Connell for the Appellant

M. R. Maletroit Esq., Crown Advocate for the Respondent.

JUDGMENT

THE COMMISSIONER:

1.        On 20^th October 2021, the Court allowed the appeal of the Appellant against the fine imposed by the Inferior Number for the reasons set out in its judgment of that date (Royal Yacht v AG [2021] JRC 257) and as per paragraph 54 of that judgment, it left over the issue of the Appellant's appeal against the order for the payment of £5,000 costs ("the Prosecution Costs Order") imposed by the Inferior Number for further submissions.

2.        Whilst the notice of appeal extended to the Prosecution Costs Order, no reference was made to this in the Appellant's written contentions or in the oral submissions of Advocate O'Connell acting for the Appellant.  Not surprisingly, no reference was made to this in response in the written contentions of the Respondent or the oral submissions of Crown Advocate Maletroit.

3.        In the draft judgment issued by the Court to the parties, it stated that whilst the notice of appeal extended to the Prosecution Costs Order, the Court had not been addressed on it and therefore did not interfere with it.

4.        Advocate O'Connell then wrote to the Court asking to be heard on the issue of the Prosecution Costs Order and that hearing took place immediately after the judgment was handed down on 20^th October 2021, with the Court's decision being reserved.

5.        In his written contentions, Advocate O'Connell focused on the conduct of the prosecution before the Inferior Number and in particular, the prosecution moving for a fine based on a percentage of the Appellant's pre-tax profits for what he said was the wrong year, instead of adopting the principles of sentencing in health and safety cases as the prosecution had originally indicated.  He said the prosecution had shifted its position without explanation and adopted an approach which flew in the face of the policy of the Court as identified in AG v Petroleum Distribution (Jersey) Limited [2018] JRC 190.

6.        In the light of the prosecution's shortcomings in this respect and in circumstances where there had been cooperation and candour on the part of the Appellant with full admission of responsibility, Advocate O'Connell submitted that it was plainly unjust and unfair for the prosecution to be rewarded by a contribution to its costs.

7.        In making these submissions, Advocate O'Connell made no reference to the principles to be applied in an appeal against a costs order, which he accepted were correctly set out in Crown Advocate Maletroit's written submissions which we set out below.

8.        Article 2 of the Costs in Criminal Cases (Jersey) Law 1961 makes provision for the Royal Court to award costs:

"2       Power of Royal Court or Magistrate's Court to award costs

(1)       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 -

(a)   if the accused is convicted, order the accused to pay the whole or any part of the costs incurred in or about the prosecution and conviction.

(b)   order the payment out of public funds of the costs of the prosecution.

(c)   if the accused is discharged from the prosecution or acquitted, order the payment out of public funds of the costs of the defence."

9.        It is well established that costs do not follow the event in criminal cases.  Article 2(1) provides that the Court 'may' make an order for costs.  Thus, costs are awarded on a discretionary basis.

10.      Article 15(1) of the Royal Court (Jersey) Law 1948 provides that, in all causes and matters, civil, criminal and mixed, the Bailiff shall be the sole judge of law and shall award the costs, if any.  Whether or not to make an order for prosecution costs is therefore a discretionary matter to be considered solely by the presiding judge.

11.      The approach of the Royal Court to an application for prosecution costs is the same as that set out by Lord Bingham in R v Northallerton Magistrate's Court ex parte Dove [2000] 1 Cr. App. R(S).  Lord Bingham's propositions were applied by the Jersey Court of Appeal in Michel and Gallichan v AG [2007] JCA 9 and X v AG [2011] JCA 063.  They are as follows:

(i)        An order to pay costs to the prosecution 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.

(ii)       Such an order should never exceed the sum which the prosecution has actually and reasonably incurred.

(iii)      The purpose of such an order is to compensate the prosecution not to punish the defendant.

(iv)      While there was no requirement that any sum ordered by the court to be paid to the prosecution by way of costs should stand in any arithmetical relationship to any fine imposed, the costs order to be paid should not in the ordinary way be grossly disproportionate to the fine.

(v)       It is for the defendant facing a financial penalty by way of fine or an order to pay costs to a prosecutor to disclose such data relevant to his financial position as would enable the court to assess what he could reasonably afford to pay. In the absence of such disclosure the court might draw reasonable inferences as to the defendant's means from evidence they had heard and from all the circumstances of the case.

(vi)      It is incumbent on any court which proposes to make a financial order against a defendant, whether by way of fine or costs, to give the defendant a fair opportunity to adduce any relevant financial information and make any appropriate submissions.

12.      Ultimately, having considered these propositions, and all of the circumstances of the case, the question for the presiding Judge is whether it is 'just and reasonable' to make an order for the defendant to pay some or all of the prosecution costs (see X v AG at paragraph 28).

13.      In the instant case, it appears that the learned Deputy Bailiff considered the circumstances of the case, and the information that had been provided by the Appellant relating to its finances, in deciding that it was just and reasonable to order the Appellant to pay a contribution towards the prosecution costs.  There is no suggestion in the sentencing judgment that the costs order was based on blameworthy conduct on the part of the Appellant (which, for the avoidance of doubt, is not a requirement for such an order to be made).  In deciding whether or not to exercise his discretion, the Deputy Bailiff will have also considered the written submissions advanced on behalf of the Appellant in mitigation as to why a costs order should not be made.

14.      There is no express statutory provision for an appeal against an order for costs made by the Royal Court.  Article 24(1) of the Court of Appeal (Jersey) Law 1961 confers on a person convicted on indictment before the Royal Court a right of appeal against sentence, which by virtue of Article 44(1):

"...includes any order (including an order of banishment or a confiscation order) made by a court when dealing with the person convicted."  (emphasis added)

15.      The Court of Appeal held in Michel v AG [2009] JCA 099 and X v AG that Article 44(1) was wide enough to include a costs order.  There would otherwise be no avenue to appeal against a costs order made against a defendant.  Quoting from paragraph 16 of the judgment in X v AG:

"16. ....However, so far as the Royal Court is concerned, we consider that the word 'sentence' does not include the determination of whether or not to make an order against a defendant after conviction. Article 15(3) of the Royal Court (Jersey) Law 1948 provides that the Jurats shall determine 'the sentence, fine or other sanction to be pronounced or imposed'.  Article 15(1) provides that, in all causes and matters, civil, criminal and mixed, the Bailiff shall be the sole judge of law and shall award the costs, if any....Thus, so far as the Royal Court is concerned, Article 15 makes a distinction between sentencing, to be determined by the Jurats, and orders of costs, which are the sole preserve of the Bailiff or Commissioner.  Put shortly, therefore, notwithstanding the procedural expedient of defining 'sentence' in the Court of Appeal Law to include any order made by the court when dealing with a person convicted, so as to bring such orders within the scope of this court's powers of review, in the Royal Court an order for costs does not form part of the sentencing process and is not a constituent of a sentence." (emphasis added)

16.      The Court of Appeal's approach to an appeal against an order to pay prosecution costs was set out in Self v AG [2010] JCA 61, where it held:

"46. It is only in the most exceptional circumstances that an appellate court will interfere with an award of costs....

47. ....Again, it is only in the most exceptional circumstances usually when the disappointed party requests the court below to do so, that the court awarding costs will give written reasons for the decision.  Accordingly, it is only where it is manifest that no court acting reasonably could possibly have reached the determination made by the court below that an appellate court will interfere.  That standard is not reached here."  (emphasis added)

17.      The Court of Appeal repeated this principle in X v Attorney General:

"23. We, with respect, agree with the Court of Appeal in Self that this court can only interfere with an award of costs by the court below if it is satisfied that no court, acting reasonably, could possibly have reached the determination it did.  In other words the decision of the court below was perverse."  (emphasis added)

18.      Applying these principles to the instant case:

(i)        The sum of £5,000 is reasonable having regard to the Appellant's means and the fine imposed (which has been reduced on appeal).

(ii)       The Prosecution Costs Order does not exceed the sum which the prosecution has actually and reasonably incurred.  The Law Officers' Department ("LOD"), as at the date of sentencing on 30^th April 2021, had recorded a total of 47.32 hours against this case, which equates to £8,445.34 when applying LOD rates (£190 per hour in respect of Legal Advisers and £160 per hour in respect of Assistant Legal Advisers).  This accounts for the legal costs in respect of the prosecution but does not include the costs incurred by the Health and Safety Inspectorate in relation to the investigation.

(iii)      The purpose of the Prosecution Costs Order is to compensate the prosecution and not to punish the Appellant.

(iv)      The Prosecution Costs Order cannot be sensibly regarded as grossly disproportionate to the fine £100,000.

(v)       The Appellant provided financial information at the sentencing hearing concerning its financial position.  Financial reports and management accounts were provided and considered by the Court.

(vi)          The appellant had a fair opportunity to adduce relevant financial information and make submissions regarding its ability to pay a financial order.

19.      Advocate O'Connell has conflated the issue of the fine imposed by the Inferior Number with the Prosecution Costs Order.  They are separate matters.  The Superior Number has found that the fine was manifestly excessive and has reduced it.  The unfairness caused by the fine has been rectified.  The Prosecution Costs Order is a separate matter, in the discretion of the Deputy Bailiff as the presiding judge, and there is a high threshold to overcome before an appellate court will interfere.

20.      We agree with Crown Advocate Maletroit that there was nothing in the Deputy Bailiff's approach to the Prosecution Costs Order that lends itself to justified criticism and it cannot be sensibly argued that the decision was perverse in the circumstances of this case.  The Deputy Bailiff was fully entitled to determine that it was just and reasonable to make the order.  The Superior Number has no reason to interfere with the decision and this part of the appeal is dismissed with the issue of costs left over.

Authorities

Royal Yacht v AG [2021] JRC 257. 

AG v Petroleum Distribution (Jersey) Limited [2018] JRC 190. 

Costs in Criminal Cases (Jersey) Law 1961. 

Royal Court (Jersey) Law 1948. 

R v Northallerton Magistrate's Court ex parte Dove [2000] 1 Cr. App. R (S) 136. 

Michel and Gallichan v AG [2007] JCA 009. 

X v AG [2011] JCA 063. 

Court of Appeal (Jersey) Law 1961. 

Michel v AG [2009] JCA 099. 

Self v AG [2010] JCA 61.