Adnan Ali Quayum v Director of Public Prosecution
| Jurisdiction | England & Wales |
| Judge | Mr Justice William Davis,Sir Brian Leveson,Mr Treverton-Jones |
| Judgment Date | 20 May 2015 |
| Neutral Citation | [2015] EWHC 1660 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/706/2015 |
| Date | 20 May 2015 |
[2015] EWHC 1660 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Sir Brian Leveson PQBD
Mr Justice William Davis
CO/706/2015
Mr F Khan (instructed by Direct Access) appeared on behalf of the Appellant
Mr G Treverton-Jones QC (instructed by the Crown Prosecution Service) appeared on behalf of the Defendant
This is an appeal by way of case stated from a decision of the Crown Court at Derby. The appellant seeks an extension of time for filing his appeal notice and we grant that extension.
On 5 April 2013, the appellant was stopped by a police officer as he was driving a car in which there were some parcels. He produced a valid certificate of insurance in relation to that car, but the insurance cover did not extend to business use of the car. Because there were parcels in the car the police officer came to the conclusion that the car was being used for the purposes of a business.
In August 2013 a summons was issued against the appellant in relation to an alleged offence of no insurance. The summons was heard by the Derby Magistrates' Court on 11 November 2013. The appellant was not present; he was convicted in his absence. The magistrates plainly decided that the parcels in the car was evidence of business use. To be fair to them they had no evidence from the appellant to contradict this or to explain the parcels.
As often happens when someone is convicted in his absence it was a considerable time before any further steps were taken. It was not until 2 September 2014 that a notice of appeal against conviction was lodged in the Crown Court at Derby. It was very substantially out of time. However, no point was taken by the prosecution and leave was given to pursue the appeal.
On 18 September 2014, there was a pre-appeal review hearing in the Crown Court. In the course of the hearing the appellant was ordered to serve any evidence on which he intended to rely, in relation to the use of the car, by 25 September. The prosecution were then to indicate by 2 October if the appeal was to be resisted. If the prosecution indicated that they did not intend to resist the appeal, the matter could have then been dealt with without any party being required to attend any further hearing. The order was that otherwise the appeal was to be listed for hearing on 10 October.
The appellant duly served his evidence and it showed that the carriage of the parcels was wholly unconnected with any business. However, the prosecution did not then indicate that the appeal would not be resisted. They appear to have indicated nothing at all. So it was that on 10 October the appeal was listed for hearing before a Circuit Judge and two lay justices sitting in the Crown Court at Derby.
We have been told that the prosecution counsel indicated to counsel for the appellant that he (prosecution counsel) accepted that there was no evidence to support business use of the car by the appellant, but that he had instructions not to concede the appeal there and then because of a policy of the Crown Prosecution Service that it was not appropriate to offer no evidence in any case where there has been a conviction after trial in a Magistrates' Court. Whatever it was that passed between counsel, certain it is that no evidence of business use was called in the course of the appeal hearing and the appeal was duly allowed after a submission of no case at the close of the respondent prosecutor's case.
I pause to make this observation: in January 2015 my Lord, the President of the Queen's Bench Division, published his review of "Efficiency in Criminal Proceedings". He identified four overarching principles of the review, the first of which was getting it right first time. Whilst the proceedings in the lower courts in this instance predated the publication of the review, that first over-arching principal was in reality a restatement of what was and should have been existing good practice.
This case is a prime example of getting it wrong first time. More to the point, once it became clear that a mistake had been made the prosecution continued to get it wrong. Had the prosecution indicated they had no evidence to offer in resisting the appeal, the case would not have required Derby Crown Court to list the case for a full appeal hearing. That would have saved the costs of representation; it would have freed the court's time for other work.
The hearing on 10 October served no useful purpose at all. If the Crown Prosecution Service in Derby, or indeed anywhere else, has a policy of the kind, to which I have referred previously, it is quite wrong and it should be changed forthwith. In any criminal proceedings at whatever level the prosecution must keep under review throughout whether there is evidence sufficient to justify a continuation of the proceedings. If there is not, no further evidence should be offered. There is no principle that requires a prosecutor to resist an appeal from a Magistrates' Court when it becomes apparent that the basis of a conviction is no longer tenable. The fact that a lower court has made a finding leading to a conviction does not prevent the prosecution taking the proper course.
In any event, at the conclusion of the hearing on 10 October counsel for the appellant made an application for costs. The application he made was for a defendant's costs order for payment of costs out of Central Funds. Because the proceedings were on an appeal from the Magistrates' Court, those costs included an amount in respect of the appellant's legal costs both in the court below, so far as he had any, and in the Crown Court.
The case fell within the exception to the provision of section 16A(1) of the Prosecution of Offences Act 1985. Generally such an order cannot include an amount for legal costs. Because this case fell within condition B, as defined in section 16A(4) of that Act, the appellant's legal costs were recoverable. No other application for costs was made at that hearing. No reference to any other kind of application was made. What followed I shall rehearse shortly, but insofar as an application for costs was to be made, or indeed indicated, that was the point at which to do it.
What then happened was that on 14 October the appellant issued a written application for costs against the Crown Prosecution Service under section 19 of the 1985 Act. The relevant part of the section is as follows:
"(1) The Lord Chancellor may by regulations make provision empowering magistrates' courts, the Crown Court and the Court of Appeal, in any case where the court is satisfied that one party to criminal proceedings has incurred costs as a result of an unnecessary or improper act or omission by, or on behalf of, another party to the proceedings, to make an order as to the payment of those costs.
(2) Regulations made under subsection (1) above may, in particular—
(a) allow the making of such an order at any time during the proceedings;…"
The relevant regulations are the costs in Criminal Cases (General) Regulations 1986. Regulation 3(1) is in these terms:
"3—(1) Subject to the provisions of this regulation, where at any time during criminal proceedings—
(a) a magistrates' court
(b) the Crown Court, or
(c) the Court of Appeal
is satisfied that costs have been incurred in respect of the proceedings by one of the parties as a result of an unnecessary or improper act or omission by, or on behalf of, another party to the proceedings, the court may, after hearing the parties, order that all or part of the costs so incurred by that party shall be paid to him by the other party."
The application came before HHJ Gosling. On 20 November he heard submissions on behalf of the appellant and the prosecution. He was not the judge who had heard the appeal. Therefore, he was not the judge who had made the order for payment of the appellant's costs out of Central Funds. It was in practical terms impossible for that judge, HHJ Rafferty QC, to sit again in Derby within a reasonable time, and the application was released to HHJ Gosling.
There was a further complication. Neither of the justices who sat with the previous judge could be made available easily, so HHJ Gosling, with the consent of both parties, heard the application sitting alone. HHJ Gosling provided a full written ruling, which he was able to hand down on the same day as the hearing of the submissions. He accepted that the history of the case provided the appellant with a persuasive case for payment of his costs by the prosecution. For what it is worth I agree with HHJ Gosling. However, HHJ Gosling decided that the effect of section 19 and the regulations made thereunder was to prevent the application being considered by the Crown Court once the appeal had been allowed and the hearing of the appeal had concluded. In particular, section 19(2) of the Act allowed the making of an order at any time during the proceedings; it did not permit an order to be made after the proceedings had concluded.
Following his ruling HHJ Gosling was asked to state a case. He did so. He has identified the question for this court as follows: whether the court on 20 November was functus officio, so that in law it was debarred from hearing the application for wasted costs. At first blush the answer to the question is straightforward. The statutory authority for the making of an order, as applied for by the appellant on 14 October, is section 19 of the 1985 Act. That...
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R v Thomas Adams
...by the legislative backstop in section 127 of the Magistrates Court Act 1980), and to that faced by the appellant in Quayum v DPP [2015] EWHC 1660 (Admin) (in which the Crown Court, having completed an appeal and costs application was functus officio in relation to a subsequent application......