Blows v Herefordshire District Council
| Jurisdiction | England & Wales |
| Judgment Date | 17 March 2009 |
| Neutral Citation | [2009] EWHC 666 (Admin) |
| Docket Number | CO/9812/2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 17 March 2009 |
[2009] EWHC 666 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Richards
Mr Justice Tugendhat
CO/9812/2008
Mr John Dyer (instructed by Messrs Coulson Read Lewis Solicitors) appeared on behalf of the Claimant
Mr Sailesh Mehta (instructed by Herefordshire District Council) appeared on behalf of the Defendant
(Draft for approval)
MR JUSTICE TUGENDHAT: The Appellant is the leaseholder and manager of a pub and hotel in Herefordshire. He appeals by way of Case Stated against a decision of 28th April 2008 by the Hereford Magistrates' Court awarding the Respondent county council full prosecution costs in the sum of £10,807.55 in addition to fines, the whole payable at the rate of £500 a month.
The appellant was found guilty of three offences: two were contrary to section 8(4) of the Health Act 2006 (“the 2006 Act”) (failing to prevent smoking in a smoke free place on 22nd July and 4th August 2007) and one was contrary to section 7(2) of the 2006 Act (smoking in a smoke free place on 4th August 2007). The fine was a total of £1,075. The issue in this appeal is confined to the order for costs. The case stated records that the District Judge awarded costs in full because:
i) The prosecution costs figure was reasonable and necessary expenditure.
ii) The way the Appellant had conducted his defence increased the length of the trial unnecessarily and resulted in further costs; his behaviour before and during the trial resulted in increased costs which could not be properly ignored.
iii) The evidence put before the court relating to the appellant's financial position was incredible and unreliable. It was for the Appellant to show the court he did not have the means to pay and he did not do so.
iv) Bearing in mind the guidance in the case of R v Northallerton Magistrates' Court ex p Dove [2000] 1 Cr.App.R(S) 136 and in the light of the above exceptional and aggravating circumstances it was reasonable for the appellant to pay the full costs.
The grounds of appeal are: (1) that the costs order is grossly disproportionate to the amount of fines imposed, (2) the prosecution costs were unreasonably incurred and (3) the District Judge failed to take due and proper consideration of the Appellant's financial position when determining his ability to meet the order for costs sought by the Prosecution. The skeleton argument of Mr Dyer on behalf of the appellant advances additional matters but they do not take the matter further than the Grounds of Appeal.
No question has been posed for the opinion of the court but in the course of his submissions Mr Dyer made clear, rightly, of course, that he was not seeking to go behind the findings of fact of the District Judge. What he is submitting is that the District Judge's decision was Wednesbury unreasonable. He accepts that the District Judge directed himself correctly by reference to the Northallerton case but submits he reached a conclusion that was not open to him. In awarding costs in excess of £10,000, it is submitted that he was speculating as to whether the appellant would have the ability to pay such a sum. No complaint is made about the period over which the payments were ordered to be made.
The jurisdiction of this court derives from the Magistrates' Courts Act 1980 section 111(1), which provides:
“(1) Any person who was a party to any proceeding before a magistrates' court or is aggrieved by the conviction, order, determination or other proceeding of the court may question the proceeding on the ground that it is wrong in law or is in excess of jurisdiction [before this court]…”
It follows that this court has jurisdiction only to determine whether the cost order was wrong in law or in excess of jurisdiction and not whether the costs order was wrong in any other respect.
In the Northallerton case, Lord Bingham, when he was Lord Chief Justice, summarised the applicable law as follows:
“(1) An order to pay costs to the prosecutor 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.
(2) Such an order should never exceed the sum which the prosecutor has actually and reasonably incurred.
(3) The purpose of such an order is to compensate the prosecutor and not to punish the defendant. Where the defendant has by his conduct put the prosecutor to avoidable expense he may, subject to his means, be ordered to pay some or all of that sum to the prosecutor. But he is not to be punished for exercising a constitutional right to defend himself…”
(4) While there is no requirement that any sum ordered by justices to be paid to a prosecutor by way of costs should stand in any arithmetical relationship to any fine imposed, the costs ordered to be paid should not in the ordinary way be grossly disproportionate to the fine…
(5) It is for the defendant facing a financial penalty by way of fine or an order to pay costs to a prosecutor to disclose to magistrates such data relevant to his financial position as will enable justices to assess what he can reasonably afford to pay. In the absence of such disclosure justices may draw reasonable inferences as to the defendant's means from evidence they have heard and from all the circumstances of the case…
(6) It is incumbent on any court which proposes to make any 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. If the court has it in mind to make any unusual or unconventional order potentially adverse to a defendant, it should alert the defendant and his advisers to that possibility.”
The jurisdiction of the Magistrates' Court is derived from the Prosecution of Offences Act 1985, section 18, which provides, so far as relevant:
“(1) Where—
(a) any person is convicted of an offence before a magistrates' court;…
the court may make such order as to the costs to be paid by the accused to the prosecutor as it considers just and reasonable.”
Both the Appellant and the Respondent refer in their skeleton arguments to Archbold 2009 edition, paragraph 6-29 which reads:
“Orders for costs should not be made which are beyond the means of the defendant: R v Maher [1983] QB 784, 76 Cr.App.R 309, CA; R v Mountain, 68 Cr.App.R 41, CA; R v Nottingham JJ, ex p Fohmann, 84 Cr.App.R 316, DC (wrong in principle to order a convicted person to pay prosecution costs in such a sum that, through lack of means, he was unable to pay the sum within a reasonable period of about one year). This must now be read in the light of R v Olliver and Olliver, 11 Cr.App.R(S) 10, CA. The court was concerned principally with fines, but there had been, in addition to the fine imposed on the appellants, substantial orders for compensation and costs. The effect was that the total sums ordered to be paid would take the appellants two-and-a-half years to pay. It was held that there was no principle requiring a financial penalty payable by instalments to run for no more than one year. There was nothing wrong in principle with the period being much longer than a year, provided that it was not an undue burden and so too severe a punishment, having regard to the nature of the offence and the offender. The judgment was directed primarily at fines and compensation, but, it is submitted that the spirit thereof plainly embraces costs orders as well. None of the orders were varied or quashed: payment of the orders for costs alone would have taken one appellant eight months to pay and the other appellant seven months to pay.”
On Ground 1, we note that, having directed himself by reference to the Northallerton case, the District Judge found that the costs were proportionate. The Appellant submits that a ratio of costs to fine of ten to one is disproportionate, relying on principle (4) in the Northallerton case. Mr Dyer submits that the appropriate rates for an advocate for the county council defendant in this case would have been either £1,800 or £2,300 instead of the £6,675 which are attributed to counsel in the schedule of costs. No complaint is made about the level of counsel's fees, given his seniority and experience. The point made is that the District Judge misdirected himself on the need to instruct counsel instead of a local advocate at legal aid rates. So it is submitted that the excess of £4,000 to £5,000 represents by inference a punishment contrary to principle.
The Respondent submits that the District Judge found that the sum in costs was exceptionally high on account of the conduct of the defence. The appellant made serious allegations against the respondent's witnesses and raised points of law which had no prospect of success and these were the explanation for the trial lasting for the three days it did. The Case Stated records that he alleged the Respondent's witnesses had conspired to lie and the points of law included challenges to the admissibility of covertly obtained evidence, allegations of abuse of process and challenges to the jurisdiction of the Respondent to prosecute the case.
The Respondent further cited a number of cases in which apparently disproportionate awards of costs have been upheld on the...
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