Andrew Ryan and David French v DPP
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HENRY |
| Judgment Date | 21 January 1994 |
| Judgment citation (vLex) | [1994] EWHC J0121-1 |
| Date | 21 January 1994 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CECO 2948/93 |
[1994] EWHC J0121-1
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Before: Lord Justice Henry and Mr Justice Mitchell
CECO 2948/93
MR P NOBLE (instructed by Richards Thorn & Co., Brighton, BN1 1UF) appeared on behalf of the Applicants.
MR J TURNER (instructed by The Crown Prosecution Service, Brighton, East Sussex, BN1 3HR) appeared on behalf of the Respondent.
Friday, 21st January 1994.
We will answer the question 'Yes', a fairly emphatic 'Yes', and we will give our reasons on another occasion. However, we need not trouble counsel and solicitors on that occasion. We will see that the judgment is sent to you.
MR TURNER: My Lord, the only matter that arises is the question of costs, and I would invite your Lordships to consider the matter of costs in favour of the Respondents.
MR NOBLE: My Lord, the draft argument was drafted and leave was granted on the written documents.
And you lost.
THE SHORTHAND WRITER: My Lord, I am having difficulty in hearing counsel.
Mr Noble, would you please speak up. We are having difficulty hearing you.
MR NOBLE: Your Lordship, yes. Having considered it, it was felt that there was an argument that should be advanced.
Which was advanced.
MR NOBLE: Of course, but certainly with regards —as I understand it, I am instructed under legal aid.
That was not a secret you let us into until that moment.
MR NOBLE: It would be inappropriate in view of the fact ( Inaudible).
You are legally aided?
MR NOBLE: Yes.
You are not suggesting that we are acting as a Court at first instance in this matter?
MR NOBLE: My Lord, no.
We are acting in an appellate capacity.
MR NOBLE: Your Lordship, yes.
What are the rules about legal costs where there is legal aid on appeal?
MR NOBLE: My Lord, it is not ordered often on appeal. Where it has gone past and leave has been given ——
MR TURNER: I do not know what my learned friend means by "leave". This is not a judicial review. This is a case stated.
It is an appeal by way of case stated. I am not talking about the legal aid regulations, because the automatic protection that the fund has at first instance does not apply to the legal aid fund on appeal.
MR NOBLE: My Lords, what I invite is that there should be no Order for costs in respect of this matter.
Can you refer us to the Regulations?
MR TURNER: My Lord, perhaps I can make the submission that I am not seeking an Order against the Legal Aid Board. I seek some Order for costs against the Appellants themselves, if your Lordships think appropriate. The fact that they have legal aid in criminal proceedings, as in civil proceedings, is not, I submit, a bar on the making of an Order for costs. It is simply a matter that the Court is obliged to take into consideration when exercising its discretion as to whether any Order, or whether any Order as to costs should be made.
What was their maximum contribution?
MR TURNER: That I do not know. I did not know they were legally aided until my friend said. We have not been served by the notice of that.
Are these proceedings legal aided?
MR NOBLE: Yes.
MR TURNER: My Lord, one knows that in the Crown Court that the judges will often make an Order for legal aid depending on the means.
But we do not know anything about the means.
MR TURNER: I certainly know nothing.
What was their contribution?
MR TURNER: My Lord, I can certainly tell your Lordships that below in the Magistrates' Court on conviction
each of them was fined £400 and ordered to pay £83 prosecution costs; so there was certainly an Order for costs for them.
MR NOBLE: My Lord, I have been shown a contribution, which says a nil contribution.
We do not know their means, and so we cannot we cannot an Order for costs.
Thursday, 27th January 1994
This was an appeal by way of case
stated against an adjudication of the Brighton Justices. The question posed dealt with whether the conviction for handling was justified on the evidence given, having regard to the fact that the Appellants were acquitted on the count of theft. It raised the thorny old question about where there are joint alternative and mutually incompatible charges of handling and theft.
We heard the matter last week. We announced then that the question posed had to be answered "Yes", the conviction was justified. We have reduced our reasons for that into writing, and are handing them down now. Copies will be available for the Press and interested parties. We have excused the parties' attendance to save costs in the matter. Copies of our judgment should, therefore, be sent to the Applicants, to the Respondents and to the Magistrates concerned.
REASONS FOR JUDGMENT
This is the judgment of the Court. This is an appeal by way of Case Stated against an adjudication by the Brighton Justices made on the 28th August 1992. The facts are these. Mr. Verrell owned an inflatable dinghy which was found to be missing from his cruiser on the 27th July 1991. A month later he saw it being towed by another vessel under the control of the defendant Ryan. Mr. Verrell re-took his dinghy, and reported the matter at the harbour security office who called the police. The defendant Ryan appeared at the office, together with his father the defendant French. Ryan was cautioned and said that the dinghy was theirs and that French had bought it secondhand in Gosport a year previously. French was interviewed under caution later and essentially confirmed this account. There were certain discrepancies in their two accounts, but what mattered was that the dinghy they were describing could not be the one stolen from Mr. Verrell, because his was still in his possession at the time they acquired "their" dinghy. Mr. Verrell was able to prove that the dinghy he had retaken was his. The Magistrates heard forensic evidence relating to the patches on it to make this abundantly clear. Following what must have been an optimistic submission of no case to answer both Ryan and French gave evidence essentially repeating the defence raised.
The appellants had been charged with both theft and handling ("in that knowing or believing certain goods namely a Zodiac inflatable dinghy to be stolen they dishonestly received the stolen goods from a person or persons unknown"). The Magistrates acquitted of the theft, and convicted of the handling. The question certified was "The question for the opinion of the court is can conviction of handling be justified on the evidence given, having regard to the fact that the appellants were acquitted on the count of theft."
The way that Mr. Noble for the appellants originally put the case was apparently based on the words in brackets in section 22 (1) of the Theft Act 1968:-
"A person handles stolen goods if (otherwise than in the course of the stealing) knowing or believing them to be stolen goods he dishonestly receives the goods ….".
He contended that before convicting the appellants of handling the Magistrates would have had to find as a fact that they were not the original thieves, and that they could not have done that since the evidence was equally consistent with theft as handling.
This is a well worn point, and is amply covered by authority. It was one of the questions that the Privy Council had to consider in the Attorney General of Hong Kong v Kai-Foon [1988] 1 AC 642 see 657A where the question is posed. Lord Ackner went on to say:-
"In the recent case of Reg v Cash [1985] QB 801, 805, Lord Lane C.J. giving the judgment of the Court of Appeal (Criminal Division) quoted with approval the extract from the judgment in Reg v Griffiths 60 Cr.App R. 14, 15 and 16, set out above. Once more, the Court of Appeal (Criminal Division) had to deal with the proposition that the words 'otherwise than in the course of the stealing' obliged the prosecution to prove affirmatively that the defendant was not the thief or a party to the theft. If that was not proved, so it was contended, the charge of handling was not made out, because the words constitute...
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