HM Revenue and Customs Prosecution Office v The Stokoe Partnership
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE DAVID CLARKE,LADY JUSTICE HALLETT |
| Judgment Date | 24 May 2007 |
| Neutral Citation | [2007] EWHC 1588 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | DTA/165/2000 |
| Date | 24 May 2007 |
[2007] EWHC 1588 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Lady Justice Hallett DBE
Mr Justice David Clarke
DTA/165/2000
MR J HALL (instructed by RCPO) appeared on behalf of the CLAIMANT
MR J HARDY (instructed by the Stokoe Partnership) appeared on behalf of the DEFENDANT
MR J KNOWLES and MR J HYAM appeared on behalf of the INTERVENERS
: In giving this judgment I shall not weary the parties with a recital of the statutory provisions to which we have been referred in the last two days. I have provided the shorthand writer with a copy of those provisions so that she can insert them where necessary.
Somewhat unusually, this is a case where three members of the Bar and a firm of solicitors, the Stokoe Partnership, have sought to persuade this court that the Court of Appeal Criminal Division does not have the power to authorise expenditure from public funds for applications for leave to appeal conviction or sentence before leave to appeal is given. This all stems from their post-trial representation of a man called Michael Tyrell. On 23rd October 2000 Tyrell was charged with the importation of 272 kgs of cocaine at 100 per cent purity. On 27th October 2000 a restraint order was made over his assets under the Drug Trafficking Act 1994. The usual exception was made to cover his legitimate legal expenses.
Tyrell was represented at trial by counsel and solicitors in accordance with the Crown Court representation order. On 12th February 2002 he was convicted at the Snaresbrook Crown Court and later sentenced to a term of imprisonment of 26 years. Grounds of appeal were lodged on his behalf against conviction and sentence by trial counsel and trial solicitors. Tyrell then instructed the Stokoe Partnership, respondents to this application. A fresh representation order was made to cover them and to cover fresh counsel to appear in the confiscation proceedings. The Stokoe Partnership and counsel freshly instructed also took over the proceedings in the Court of Appeal.
From November 2002 correspondence ensued between the Stokoe Partnership and the Criminal Appeal Office as to the funding of the applications to the Court of Appeal Criminal Division. The Office informed the Stokoe Partnership that any work done by them or fresh counsel would not be covered by the Crown Court representation order, it must be funded privately. The Office indicated, however, that an application for a representation order could be made.
On 20th December 2002 Forbes J made an interim order releasing some of the restrained funds for payment of legal fees if the application for a representation order was refused. In a letter dated 13th January 2003 the Stokoe Partnership formally applied for a representation order for solicitors, leading counsel, Ken MacDonald QC (as he then was), and Ivan Pearce. The Partnership informed the court that, but for the restraint order, their client would have access to substantial funds with which counsel could be instructed privately. They also informed the Office that Forbes J had varied the restraint order. To my mind, this was a clear hint that this was not in fact an earnest application for a representation order.
The application for leave to appeal Tyrell's conviction and sentence were put before the single judge, Davis J. On 2nd July 2003 he referred three of the five grounds of appeal against conviction to the full court. He neither refused nor granted leave. In other words, he was not persuaded of the merits of the three grounds referred but he considered them worthy of further consideration, and certainly consideration by the full court. At the same time as he referred the application, Davis J, following the practice of many before him and since, purported to grant a representation order. It was in these terms:
"The preparation and presentation of an application for leave to appeal against conviction and, if granted, the appeal."
The order was limited to one counsel only. It is not clear to me whether Davis J had been informed of the possible availability of private funds subject to the restraint order. In any event, counsel named in the representation order was "K MacDonald", now Sir Ken MacDonald. Sir Ken has never claimed under that representation order. All the work he did for which payment has been claimed was carried out before 2nd July 2003.
Sir Ken MacDonald's appointment as Director of Public Prosecutions came soon after Davis J's order. When that occurred, Mr Anthony Jennings QC was instructed in his place. The representation order kept the same date but it was amended so as to name Mr Jennings as the sole advocate. We were informed by Mr Knowles that the representation order was sent many months later to Mr Jennings' chambers but he was never personally made aware of it. Mr Jennings accepted his instructions on the basis that he was to be privately paid. His junior, Mr Pearce, who was in a different set of chambers and never saw any representation order, was in a similar position.
Despite their efforts, the full court refused leave to appeal against conviction on the three referred grounds on 2nd December 2004. They also refused a renewed application to appeal against sentence. Thereafter, there followed considerable correspondence between various parties. I shall only refer to a small selection of it. In March 2006 the Stokoe Partnership wrote to the Criminal Appeal Office costs section asking if the representation order covered work done by junior counsel and solicitors, as well as leading counsel. They were informed that the representation order covered just one advocate, Mr Ken MacDonald. In a letter dated 22nd March 2006 the Stokoe Partnership then challenged the fact that a representation order had been made. They also challenged the fact that they ever made an application for one. They stated in terms that they had always understood that they were acting on a privately paid basis. This was the position they adopted thereafter. They have claimed and been paid fees from the restrained assets by the RCPO (the Revenue and Customs Prosecution Office).
By letter dated 24th April 2006 Mr Greenhill of the Costs Section of the Court of Appeal Office informed the Stokoe Partnership that the representation order covered the presentation of the application for leave to appeal by leading counsel only. As far as solicitors and junior counsel's fees were concerned, he pointed out that the Department, now the Ministry of Justice, took the view that joint public private funding arrangements are prohibited by virtue of Regulation 22 of the Criminal Defence Service Regulations. He further observed that had the court known that junior counsel and solicitors were privately instructed, the court might have made a recovery of defence costs order in respect of the publicly funded costs.
For the purposes of this application we have been asked to proceed on the basis that joint private public funding arrangements are prohibited by the Regulations. This was certainly the stance adopted by the RCPO. In April 2006 their costs draftsman submitted a report to the RCPO stating that because a valid representation order was granted on 2nd July 2003, no private fees were properly payable after that date. In her opinion, substantial fees had been wrongly released to the Stokoe Partnership from the restrained funds to pay solicitors and counsel.
On 2nd May 2006 the Stokoe Partnership wrote to Mr Greenhill again querying the representation order. On the same date they wrote to the Legal Services Commission setting out why they believed the order was invalid. Mr Greenhill of the Costs Section stood his ground. He insisted that the making of the representation order was not conditional upon the grant of leave. At that time, however, the Legal Services Commission begged to differ. The Stokoe Partnership told the court of the conflicting views. They asked for the Registrar's assistance. In June 2006 the RCPO made an application for an enforcement receiver. They wrote demanding repayment within 14 days of just under £50,000. The following month the Registrar, essentially supporting Mr Greenhill, wrote to the Stokoe Partnership saying no payment could be made to solicitors because of the absence of any representation order in their favour and an order for costs from central funds could not be made because the appeal was not allowed.
Further correspondence ensued about whether the solicitors could submit a private bill. The Stokoe Partnership wrote to the RCPO indicating they were awaiting a response from the Registrar and would revert to the Office when it was received. They also wrote to the Office enclosing a copy of the Legal Services Commission's letter. In their turn the RCPO questioned the meaning of the Commission's letter. On 25th September 2006 the Partnership informed the RCPO that the Commission were saying "that the order of Davis J of the 2nd July 2003 granting Legal Aid was wrongly made".
On 4th October the Stokoe Partnership wrote agreeing to a receivership order, provided the receiver would retain sufficient funds to pay outstanding invoices, pending resolution of this dispute. The same day, 4th October 2006, a receivership order was made pursuant to section 29 of the Drug Trafficking Act by Stanley Burnton J. This was to enforce the confiscation order. By virtue of clause 1(a) the receiver was empowered to take into his...
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