Scottish High Court of Justiciary Decisons

HIGH COURT OF JUSTICIARY
	[2009] HCJAC 50 Appeal Nos: XJ351, 352, 354, 355, 357, 358/09 OPINION OF LORD CARLOWAY in the Appeals by LAWRIE & SYMINGTON LIMITED AND OTHERS Appellants; against THE PROCURATOR FISCAL, LANARK AND OTHERS Respondents: _______

Appellant Lawrie & Symington: No Appearance

Appellant Henry Kusznierski: Party

Appellant Adam Walker: No Appearance

Appellant Alexander Arthur: A Brown; McJerrow Stevenson

Appellant James Broatch: A Brown; McJerrow Stevenson

Appellant Bryden Nicholson: Shead; Gillespie Macandrew

Respondent: A Prentice QC AD; The Crown Agent

15 May 2009

1. General Principles and Legislation

[1] It is long established that, in the High Court, no awards of expenses are made in proceedings at first instance, at least where the indictment runs in the name of the Lord Advocate. The matter was simply put thus by Lord Salvesen in HM Advocate v Aldred 1922 JC 13 (at 15):

"It is however, I think, a fundamental and well established principle in criminal law that no expenses are awarded by the High Court - sitting as such and not as a court of review - either in favour of, or against, the accused. The rule, I think, was established primarily in the interests of accused persons, because, if one were dealing with matters of this kind according to the principles which regulate civil proceedings, it would seem to follow that the unsuccessful party would generally be subjected to expenses, which would mean in the case of an accused person that he would have to bear the expense of the trial in addition to the penalty which a conviction must impose upon him.

Now, that rule has been so well established that [the respondents' counsel] was unable to find a single exception to it, because the fact that in bills of suspension the procurator fiscal, if he fails, is found liable in expenses does not seem to me really to constitute an exception. The proceedings here are for the purpose of reviewing procedure which has taken place in an inferior Court, and the High Court is appealed to in the exercise of its appellate jurisdiction. Here that is not the case; and the petitioner is the Lord Advocate, who is presumed to be actuated solely by a regard for the public interest in the conduct of matters connected with the crime of which he has charge".

Lord Ormidale reluctantly agreed (at 16) because:

"the fundamental principle that determines the liability of the Lord Advocate to meet expenses of proceedings taken at his hand is simply this, that he takes these proceedings, not on private or personal grounds, but in what he conceives to be the public interest, and that it would be entirely wrong to hamper him in the performance of his public duty".

The sentiments there expressed were analysed more recently in Gallagher Petnr 1990 JC 345 where the Lord Justice General (Hope) was content with them, in so far as they applied to public prosecutions.

[2] There is no obvious reason to distinguish between prosecutions proceeding at the instance of the Lord Advocate in the Sheriff Court from those in the High Court. That being so, the general principle is that there are no awards of expenses given in solemn proceedings on indictment at first instance. The appellate jurisdiction is now primarily a statutory one, and no power is given in the Criminal Procedure (Scotland) Act 1995 to award expenses for or against the Lord Advocate. None are ever awarded.

[3] The procedure in summary cases at both trial and appellate level has followed a different course. So far as expenses at first instance are concerned, since at least the Summary Procedure Act 1864 (27 & 28 V c 53, section 22) it has been expressly provided by statute that, in practical terms, the Court cannot make a separate award of expenses for or against a public prosecutor. This provision persisted (Summary Jurisdiction (Scotland) Act 1908 (8 Edw 7 c 65) s 52; Summary Jurisdiction (Scotland) Act 1954 (2 & 3 Eliz 2 c 48) section 53) and was most recently contained in section 435 of the Criminal Procedure (Scotland) Act 1975 (c 21). But it was repealed, and not replaced in the Criminal Procedure (Scotland) Act 1995 (c 46), by the Criminal Justice (Scotland) Act 1995 (c 20; Sch 6 para 144, Sch 7). As matters now stand, there is no statutory provision covering the powers of the Sheriff or District Courts to award expenses in summary cases. It is not clear why the provision was removed. Nevertheless, it seems to be widely accepted that, in the absence of a such provision, there is no power to award expenses in summary cases, at least where the prosecution is taken by the public prosecutor in the public interest (McFadyen v Gatley 2000 SCCR (Sh Ct) 123).

[4] By analogy with the observations of Lords Salvesen and Ormidale, it is difficult to see, in the modern era, why there should be such a power in summary, but not solemn, cases. The distinction between the Lord Advocate and procurators fiscal, as Alison would have it (ii p 93), was that the latter:

"are selected in general from a subordinate class of men, and are not to be presumed in every case to be either so thoroughly exempt from improper motives or so completely under the observation of the King in Council, as those high functionaries whose appointment flows directly from the Crown itself".

Nevertheless, he added:

"while that is true on the one hand, it is not less material to observe on the other, that the presumption of law is, that the procurator-fiscal has acted from conscientious motives, and that any irregularity which has occurred in the proceedings, is the result of oversight, or such error as even the most vigilant attention has not been able to avoid. This presumption, it lies upon the suspender to elide, by making out so strong case a case of irregularity, or exhibiting such grounds to suspect oppression, as turn the balance of justice the other way. Repeatedly, accordingly, while the Court have suspended the sentence, they have refused to find the procurator-fiscal liable in expenses. This is more particularly the case, either where the facts disclosed in the proof are such as to render the party suspending the sentence unworthy of such an advantage, or where the irregularity complained of has been of such a kind as, although deserving of correction, was not such as to put the procurator fiscal clearly in error in pursuing it".

[5] It is here that what might be described as an apparent anomaly creeps in. The High Court, in appeals from summary prosecutions, retains an express statutory power to award the expenses of not just the appellate procedure but the lower court too. Thus, section 183 of the 1995 Act, which deals with the powers of the Court on disposing of a stated case, provides that:

"(9) The High Court shall have power in an appeal under this Part of this Act to award such expenses both in the High Court and in the inferior court as it may think fit".

This provision applies in the event of Crown succeeding, as it does to a convicted person overturning that conviction. It derives from the almost identical terms of section 452(3) of the 1975 Act and, before then, from 71(3) of the 1954 Act and section 72 of the 1908 Act. The power to award the expenses of the appellate process has, in recent years, been less frequently used than in former times. The power to award those of the lower court has seldom been used. Certainly, the practice was not to award the expenses of the lower court unless the conduct of the procurator fiscal could be categorised as oppressive (see e.g. MacLaren: Expenses p 396).

[6] The manner of application of the provision in relation to the quantum of expenses in an appeal has been regulated by practice over the years. In McIntyre v Linton (1876) 3 Coup 3, the respondent was the Procurator Fiscal, Edinburgh. The appellant, an hotelier, had been successfully prosecuted in the local Police Court for the sale of alcohol, after the licence transferred to him had been forfeited. However, the appellant had meantime obtained a licence in his own right, which had not been forfeited, and it was held, on appeal by stated case, that he had been entitled to sell alcohol under the new licence. The conviction therefore could not stand. The Court found the appellant entitled to expenses, modified to ten guineas. Lord Deas, who was chairing the Court, and with whom the other judges presumably agreed, made certain remarks about the award of expenses in such appeals. He put the matter thus:

"There is no absolute rule about awarding expenses in this Court, or as to modifying them when they are awarded. It is, however, usual to modify the expenses and save the expense of taxation. The amount of expenses does not depend upon the nature of the error into which we may think the inferior judge has fallen, and it must not be supposed that we go on the footing that there is anything palpably wrong in the Sheriff Substitute's judgment. It was a view which might reasonably be taken, although we differ from it".

It is clear that the Court was awarding the expenses of the appellate proceedings only. [7] In Gallagher, Petnr, (supra) the Lord Justice General (Hope) also referred to the (almost) invariable practice of the High Court to modify expenses in proceedings for review. The Court undoubtedly has the power to award full expenses, and to remit these to the Auditor of the Court of Session to tax (Courts of Law Fees (Scotland) Act 1895 (58 V c 9) section 3; Hastings: Expenses 58; MacLaren: Expenses 397). But for reasons of convenience, that has rarely been done in recent years (cf the case of Ian Chisholm, unreported, 6 July 2004 (infra)). Rather, when awards of expenses were more popular in summary appeals, there was an informal table of block fees, being the reasonable costs of an appeal estimated by the Principal Clerk of Justiciary, which were normally awarded to the successful party. In 1993, a wholly successful appellant in a stated case would be awarded £280 (see McCluskey & McBride: Criminal Appeals para 6.22).

[8] One more general matter requires to be noticed and that is that the expenses of a test case are not normally awarded against either party (Halliday v Bathgate (1867) 5 Irv 383, Lord Justice General (Inglis) at 397).

[9] There is a specific provision for the particular situation, which arises in the present cases, where, on an appeal or review of summary proceedings, the Crown does not insist upon the conviction. Section 188 of the 1995 Act provides:

"(1)...where

(a) an appeal has been taken under section 175(2) of this Act or by suspension or otherwise and the prosecutor is not prepared to maintain the judgment appealed against he may, by a relevant minute, consent to the conviction...being set aside either in whole or in part; or

(b) no such appeal has been taken but the prosecutor is, at any time, not prepared to maintain the judgment on which a conviction is founded...he may, by a relevant minute, apply for the conviction...to be set aside".

It continues by stipulating that the Minute should be laid before:

"(4) ...any judge of the High Court either in court or in chambers who, after hearing parties of they desire to be heard, may:

(a) set aside the conviction...and -

(i) award such expenses to the convicted person, both in the High Court and in the inferior court, as the judge may think fit...".

Section 188 derives from section 453 of the 1975 Act. But, in its unamended form, section 453 read:

"...and such judge [of the High Court, either in court or in chambers] after hearing parties if they desire to be heard, or without hearing parties, may set aside the conviction...and award expenses to the appellant not exceeding £5.25...". (see also the 1954 Act, section 72(3) "five guineas"; the 1908 Act, section 73 "three pounds three shillings"; Criminal Justice (Scotland) Act 1949 (12, 13 & 14 Geo 6 c 94) sub-section 47(2))."

This limit on the amount of expenses, which had been increased to £60 by 1991 (Appellants (Increase in Expenses) Order 1991 (SI 1991 No 810)), did not apply to appeals by stated case generally (supra).

[10] There was thus, over many years, an express provision which allowed an appellant a small fixed sum in expenses, where the prosecutor consented to his conviction being set aside. On the other hand, if the appeal proceeded without that concession, the Court retained its general unlimited power to award expenses in both the High Court and the court below. This wider power to grant unlimited expenses in both courts was extended, to cases where consent was forthcoming, by section 43 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (c 9); part of a miscellany of changes to the law of criminal evidence and procedure. A number of questions then arise. First, what was Parliament's intention in removing the monetary limit on expenses? Secondly, should expenses still be modified, in accordance with the long standing practice in summary appeals generally? Thirdly, in what circumstances should the Court award the expenses of the inferior court?

[11] The submissions made on behalf of the appellants, which proceeded without any analysis of the background of practice and statutory changes, rested simply on the general proposition that a power to award expenses generally existed in section 188 that this power ought to be exercised in the appellants' favour upon the basis that they had been successful. The Advocate Depute replied by mentioning that the Crown had requested the Court to issue rules on the subject, presumably by Act of Adjournal. Under reference to HM Advocate v Aldred (supra) and Gallagher, Petnr (supra), the Advocate Depute submitted that there was an important matter of principle involved concerning the need to avoid constricting the manner in which the Lord Advocate and the Procurators Fiscal exercised their public duty. If expenses were to be granted, then they ought to be modified in accordance with past practice. However, the Advocate Depute accepted that in one case, (Ian Chisholm) (supra), the Crown had conceded the appeal by section 188 Minute and had also conceded the expenses of, it seems, the High Court and the inferior court. The Court had remitted the "question of expenses to the Auditor of Court for quantification, and for the Auditor to assess and report". The Court did not provide the Auditor with any basis upon which to tax the account.

[12] The answer to the first question, as to why the fixed limit was removed, might be found in part by looking at the remarks of the Lord Justice General (Hope) in Hamilton v Friel 1991 SCCR 67, where the appellant sought expenses at a level above the statutory ceiling. There, a motorist had been convicted of a speeding offence on a road later found not to be subject to a speed restriction. The Lord Justice General said (at 69-70):

"It is plainly of importance, since the amount prescribed by this subsection puts a limit on the expenses which the court may award, that the amount prescribed for the time being should be reviewed as frequently as may be and as reasonably as may be to reflect any increases in the cost of the procedure. This is necessary in order that proper recompense may be given to a person who has been wrongly convicted and whose conviction and sentence required to be set aside. The limit of £60 may well be in need of review".

Although the Lord Justice General refers to "recompense", he appears to be talking about the legal expenses of setting aside the conviction. No doubt such remarks may have prompted removal of the ceiling. But why the amendment should have gone further in permitting the Court to grant the expenses in the lower court is less clear, unless, as seems not unlikely, the wording of sub-section 183(9) was simply borrowed and used to form the basis of the new sub-section 188(4). It is reasonable to conclude, in all the circumstances, that Parliament intended to give the Court a wider discretion to award expenses, in cases where the Crown had withdrawn opposition, to be exercised in a similar way to that under the almost identical provisions applicable in opposed appeals (i.e. under sub-section 183(9)). If that is so, then the practice of, almost always, modifying expenses ought to continue. This is for two reasons. First, in practical terms, it would add an unnecessary layer of expense in summary appeal cases to require the expenses to be taxed by the Auditor of Court. Secondly, there ought to be a generally recognised ceiling placed on expenses in summary appeals in order not to restrict unduly the Lord Advocate or local Procurator Fiscal in prosecuting cases in the public interest. It would not be in that interest to have the prospect of a large award of expenses looming over a public prosecutor weighing in the balance of whether to prosecute a summary case. On the other hand, where a person has been wrongly convicted at summary level, it has been deemed appropriate by Parliament that he should be awarded the expenses of setting aside that conviction. The anomaly of the absence of such a power in solemn appeals may remain, but, in practical terms, an appellant's expenses in solemn appeals are almost always covered by legal aid, where the appellant is an individual.

[13] There remains the question of when the expenses in the lower court ought to be awarded. No doubt it may depend on the circumstances of the particular case, but it has to be borne in mind that, if a person successfully avoids conviction in the lower court, he cannot obtain his expenses against a public prosecutor in that process. It would be strange if he could obtain them if he were convicted but then succeeded in an appeal. Historically, the statutory provision was probably aimed at private prosecutions, where expenses might be granted. In that event, it would be reasonable to provide the High Court with a power to alter a determination on expenses at first instance. Following that reasoning, it must at least be an exceptional case in which the High Court will be prepared to grant the expenses of the lower court proceedings against a public prosecutor. Even then, it would be likely to modify the figure to a fixed sum akin to the reasonable costs of defending against an ordinary summary complaint (see e.g. the sums in the Criminal Legal Aid (Fixed Payments)(Scotland) Regulations 1999 (SI 1999 No 491) schedule 1).

2. Individual Cases

[14] It is important to stress at the outset that the Court is dealing with an award of expenses; that is to say the reasonable costs of legal representation and any associated outlays. It is not concerned with awarding compensation for wrongful prosecution. If an individual considers that he has been the subject of a malicious summary prosecution, conducted without probable cause, then he must take such action for damages as he deems is justified; no doubt bearing in mind the level of immunity afforded to, for example, prosecutors in the public interest (1995 Act s 170).

LAWRIE & SYMINGTON

[15] On 25 February 2004 the appellants, who were represented by solicitors and counsel, pled guilty to a contravention of the Cattle Identification Regulations 1998 in respect of a failure to comply with European Council Regulation No 1760/2000. A technical error at the stage of enacting amending legislation resulted in the Council Regulation not being in force at the relevant time; although it had been for a period before and was reinstated some time thereafter. The error was not noticed by either the procurator fiscal or the appellant. When it was noticed by the Crown in 2006, the procurator fiscal presented a section 188(1) Minute to have the conviction set aside. The appellants now claim £4,700 in respect of their law agents' and counsel's fees for the original trial diet. For the reasons given above, the Court does not consider that this a sufficiently exceptional case to merit the grant of the expenses at first instance. After all, had their counsel and law agents observed that the Regulation was not in force and had successfully challenged the relevancy of the complaint, they would not have obtained their expenses and the section 188(1) Minute would not even have been required. The error in not noticing that the Regulation had ceased to be in force may have been excusable, but if so, the procurator fiscal can pray that in aid too in avoiding an award of expenses against him. The prosecution certainly cannot be described as approaching oppression.

HENRY MICHAEL KUSZNIERSKI

[16] Mr Kusnierski was convicted on 8 November 2007 of failing to identify the driver of a BMW car (registration number A13 HMK), of which he was the registered keeper, who had allegedly been speeding on the A74(M) at the Whicketthorn Overbridge, Kirkpatrick Fleming on 16 August 2006. The first diet was set down for 3 May 2007, but the appellant did not appear. A trial diet was discharged. The appellant appeared voluntarily on 24 May and a trial diet was fixed for 16 August 2007. By that date, the procurator fiscal had served a notice of uncontroversial evidence. The appellant took issue with that, but only at the trial diet. The Court took a sympathetic view and allowed an adjournment to enable the evidence to be challenged. The trial diet was discharged accordingly. At the new diet, on 8 November 2007, the appellant represented himself. The evidence led was that the car had been going at 92 mph at the relevant time. The registered keeper of the car was the appellant, to whom a Notice of Intended Prosecution had been sent on 16 August 2006. The appellant's company, namely HMK Autos, responded that the car was owned by them and that four drivers had access to it. The author of the response, and the appellant in evidence, purported not to know which of the four persons was driving at the material time, despite being sent, according to the crown witnesses, the photographs of the car and driver taken at the time. The police had visited the appellant with the same result in relation to his own knowledge of the driver. The appellant was convicted, but appealed on the grounds that: he had not been cautioned before replying to the police; the police had not been able to remember various matters; and he had not been given certain documents.

[17] The crown conceded that the conviction required to be quashed, but on a different basis from the grounds advanced by the appellant. The Crown considered that the District Court had erroneously proceeded on the basis that it was sufficient if the appellant was the registered keeper, as distinct from the actual keeper at the time of the offence. Furthermore, the Court had not found in fact that the appellant had been required to give information on the identity of the driver or that the Notice had been given on behalf of a chief officer of police. The procurator fiscal therefore lodged the appropriate section 188(1) minute. The appellant now claims travelling expenses to the five District Court diets he attended. As the appellant lives in Staffordshire, these total almost £1,000. He also claims a further £1,500 because he had to close his garage business on these five days. Before the Court, he made certain allegations about fabricated evidence and, essentially, malicious prosecution.

[18] The expenses, which this appellant claims, are not legal expenses and for that reason alone his claim is disallowed. In any event, this is not a case in which the Court would have been inclined to award any expenses standing the nature of the prosecution, the defence and the technical grounds upon which the appeal was conceded. Once again, the Court is not prepared to classify this prosecution as oppressive. On the contrary, despite the outcome upon appeal, the first instance proceedings appears to have been well merited.

ADAM WALKER

[19] On 4 March 2004 (cf the terms of the Minute), this appellant pled guilty to a contravention of the 1988 Regulations (supra) in respect of a failure to comply with the European Council Regulation (supra). As in the case of the appellants Lawrie & Symington, the Regulation was not in force at the relevant time. Nevertheless, the appellant pled guilty to the charge. He had represented himself throughout the first instance proceedings. When the error was noticed by the Crown, the procurator fiscal set in motion the procedure to set aside the conviction. The claim made by Mr Walker is in respect of time off work and travelling to the original trial. He makes no claim in respect of the appeal process. His claim is not for legal expenses as envisaged by the sub-section and the application for expenses is therefore refused on that ground and on the same basis as that explained in the Lawrie & Symington appeal.

JAMES BROATCH and ALEXANDER ARTHUR

[20] In 2003 and 2004 respectively, these appellants were convicted of offences under the 1998 Regulations (supra) in respect of a failure to comply with the European Council Regulation (supra). As already explained in the cases of the appellants Lawrie & Symington and Walker, the Regulation was not in force. The appellants had instructed law agents in their defence and thereafter had pled guilty. The law agents had charged the appellant Broatch £199.75 for the first instance work. Having been consulted regarding the error, they charged a further £185.68 in correspondence with, and attendance upon, the Sheriff and Justiciary Clerks and the procurator fiscal. In the appellant Arthur's case, they charged £351.15 for the first instance work, which included offences under the Trade Descriptions Act 1968 and, again, £185.68 for the appeal proceedings. The latter figure may provide a useful guide to what might be reasonable in respect of the expenses of an appellant, where the Crown present a section 188 Minute. However, there is also the attendance at the diet set down to determine the issue of expenses together with counsel's fees of £500 for both appellants.

[21] There is no difficulty in awarding each appellant £185.68 as expenses for the appeal. It was reasonable for them to consult their solicitors about the Minute and the fees seem reasonable in that context. For reasons already explored, the Court does not consider that the appellants should be awarded expenses in respect of the proceedings at first instance. Since "success" on the matter of expense before the High Court has been divided, it does not seem appropriate to award expenses for that matter. Furthermore, the argument on expenses was in the nature of a test case.

BRYDEN NICHOLSON

[22] In June 2007, the appellant, a sheep farmer, was convicted of nine charges of contravening Regulation (EC) No 999/2001 as amended and the TSE (Scotland) Regulations 2002 Regulation 97(1). The offences took place on his farm on Shetland in September and October 2005 and were said to involve his introduction of sheep of genotypes 3, 4 and 5 and untested sheep onto a restricted holding. He had received a Notice prohibiting the movement of those genotypes except for slaughter. The appellant complains that, in advance of the trial, his law agents had e-mailed the procurator fiscal advising him that the appellant was not going to plead guilty because the Crown would not be able to prove the genotypes of the sheep moved. It was said that "The Crown require to prove the exact genotype. Evidence of probability of genotype is clearly insufficient". The prosecution proceeded. After a four day trial, the Sheriff ultimately held that:

"The preponderance of sheep bred on Shetland will be Shetland breed or mixed breeds. In previously studied flocks of Shetland breed which have been part of the voluntary or compulsory Scrapie Schemes, there was found to be an average of 58% and a minimum of 19% which are types 3, 4 or 5. In cross breed sheep the average was found to be 40% and the minimum 7%. In any untested group of sheep from farms in Shetland there would be a high probability that they would contain some of the prohibited categories of sheep. Without testing it would be impossible to tell if a sheep fell into any of these categories".

The appellant appealed by stated case. The Crown conceded the appeal by section 188(1) Minute on the basis, albeit not expressed in the Minute, that the sheriff had not been entitled to convict, as he had been invited to do by the procurator fiscal, on the basis of statistical probability.

[23] The appellant's complaint is therefore that he had advised the local procurator fiscal that he was bound to fail for a particular reason. His advice had turned out to be correct. He protests that he has gone to considerable expense in defending himself before the Sheriff. He incurred fees £24,013.71 in respect of the trial proceedings. However, especially standing the view of the Sheriff, it cannot be said that the procurator fiscal's position was an unreasonable one; even if it transpired that the crown ultimately agreed with the appellant's law agent. For reasons explored above, this is not a case in which the expenses at first instance ought to be awarded against the public prosecutor. The prosecution was not oppressive and there appear to have been reasonable grounds for proceeding, albeit that, ultimately, the Sheriff's decision, phrased as it was, could not be supported. On the other hand, the conviction did have to be set aside and, following the remarks of the Lord Justice General in Hamilton v Friel (supra), there ought to be recompense for that. These expenses will include applying for the stated case, proposing adjustments, and attending any necessary hearing on adjustment. The appellant has produced a fee note from his agents which contains a bald charge of £4,000 for this work, together with travelling time from Edinburgh, where the agent practises, to Aberdeen, where the hearing on adjustment took place. There is no breakdown of the figure of £4,000, but it is said to be based on an hourly charge of £200-217 per hour. This is well in excess of even the Court of Session rate allowable on a party and party taxation.

[24] As outlined above, it will normally be appropriate for the High Court to award a fixed sum rather than to remit an account for taxation. Having regard to all the matters explored above, including the block fees previously deemed appropriate, the Court will find the respondents liable to the appellant in the expenses of the appeal but will modify these to £1,500; that figure taking into account that this case was exceptional in being of far greater complexity than normal. It does not, for the same reasons as given in the cases of Broatch and Arthur, take account of the High Court hearing given the divided success reached and the test case nature of the application.

[25] Accordingly, the convictions in the various appeals will be set aside in terms of the section 188 Minutes. The appellants Broatch and Arthur will each be found entitled to the expenses of their appeals from the respondent, modified to £185.68. The appellant Nicholson will be found entitled to the expenses of his appeal from the respondent modified to £1,500. The motions for expenses from the other appellants will be refused.