Hunter v Crown Court at Newcastle upon Tyne
| Jurisdiction | England & Wales |
| Judge | Lord Justice Leveson,Mr Justice Nicol,HIS HONOUR JUDGE STOKES |
| Judgment Date | 29 January 2013 |
| Neutral Citation | [2013] EWHC 191 (Admin) |
| Docket Number | CO/2782/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 29 January 2013 |
[2013] EWHC 191 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Leveson
Mr Justice Nicol
His Honour Judge Michael Stokes QC
CO/2782/2012
Mr A Lakha, QC (instructed by Byrne and Partners LLP) appeared on behalf of the Claimant
Ms K Dunn (instructed by Crown Prosecution Service) appeared as an Interested Party
On 28 November 2011, in the Crown Court at Newcastle-upon-Tyne, this appellant and his co-defendant twin brother appeared before His Honour Judge Thorn QC to stand trial on an indictment alleging fraudulent trading, contrary to s.933 of the Companies Act 2006 and two further counts of contravention of sections 19 and 21 of the Financial Services and Markets Act 2000. The appellant's brother had previously pleaded guilty to the latter two offences and there were then discussions between the Crown and the defence as to the sum of £986,508 held in bank accounts of the business in which both brothers had an interest. Thereupon, the prosecution accepted the pleas tendered and offered no evidence against the appellant. Judge Thorn entered verdicts of not guilty after which the appellant's legal advisers made an application under s.16(2) of the Prosecution of Offences Act 1985 for an order that the entirety of the appellant's costs should be paid out of central funds. After hearing submissions, Judge Thorn refused the application. It is against that refusal that the appellant now appeals by way of case stated.
The facts found by the judge are set out in the Case Stated in these terms:
"1. Without impugning the NG verdicts, the learned Judge found that the Appellant had brought the prosecution upon himself, given the Prosecution Draft Opening (8.2.10) and the Exhibits referred to.
Not least:
A. This twin and his Co-Defendant brother Alexander, set up Global Marketing Corporation Ltd. This eventually accrued £1,591,854.60 on which no tax was paid and in respect of which no accounts were filed.
B. This company and websites which they were both involved in setting up, were used as bogus means of setting up tip sheets in respect of the American Stock Market.
C. In particular, they gave advice based on invented story-lines eg. in the names of 'Michael Cohen' or 'Prof Finn' which in turn were based on a false address in Leeds and later in Whitley Bay.
D. This Defendant held shares in the Company and his name and details were used repeatedly on the websites.
E. As to the nature and extent of his involvement with this company and websites, cp [sic] that of his twin brother, this was never entirely clear save that it was substantially less than that of his brother.
2. By inference, the Defence had also misled the Police and Prosecution into thinking the case against him was stronger than it was:
A. Given this Defendant's mainly 'No Reply' interviews on 3.4.09 & 12.7.10 [See also Ashenden and Jones v UK (2011) ECHR 1323.]
B. Further at no stage was there any Defence Statement from this Defendant. (The PCMH was held on 10.3.11, with a four week Trial listed for 7.11.11)."
Recording the submissions of the parties, Judge Thorn noted that the application for a 'full defence costs' order was made without notice or skeleton argument and by reference only to para. 6.14 of Archbold and paras. 10–12 and 24.2 of what was a joint Defence 'Position Statement'. He posed the questions:
"1. Is this Appeal by way of Case Stated NOT a matter 'relating to a trial on Indictment', so that as such there IS jurisdiction to Appeal?
2. If the Court has jurisdiction to review this, was the Crown Court justified in refusing the Appellant his reasonable Defence Costs out of Central Funds?"
There is no doubt that s.28(1) of the Senior Courts Act 1981, which provides for appeal by way of case stated, is a convenient mechanism for challenging such decisions of the Crown Court as are open to challenge, not least because of the ability of the parties to make submissions both as to the relevant facts to be included in the case, and as to the questions to be posed for the High Court, all of which can be taken into account by the judge when stating the case. It is, however, critical to underline that the power of this court to review such decisions is limited by s.28(3) of the Act which makes it clear that s.28(1) shall not apply to a judgment or other decision of the Crown Court relating to trial on indictment. There is an equivalent provision in s.29(3) of the Act which deals with applications for judicial review (in respect of which the High Court has no power in respect of the jurisdiction of the Crown Court "in matters relating to trial on indictment").
In his skeleton argument and today, Mr Abbas Lakha QC relies on Reg v Wood Green Crown Court ex parte DPP [1993] 1 WLR 723 as authority for the proposition that a refusal to grant a defendant's costs order is reviewable, although he recognises that the authorities upon which that case relied have since been overruled by the House of Lords in Re Ashton [1994] 1 AC 9. He submits that this latter case does not affect the authority of Wood Green Crown Court and, in any event, those cases are readily distinguishable. The strand of authorities, dealing with what constitutes a "matter relating to a trial on indictment" therefore, requires careful review.
The starting point is In Re Smalley [1985] AC 622 which concerned estreating the recognisance of a surety, held by the House of Lords not to relate to a trial on indictment. In his speech, Lord Bridge accepted (at 642) that the words "trial on indictment" must include the trial of a defendant who pleaded guilty. He discerned the legislative purpose of this exclusion as being to avoid delay for a defendant who would have a remedy by way of appeal against conviction and to underline that prosecutors had never enjoyed a right of appeal or review when unsuccessful (although this latter premise is no longer accurate in the light of appeals pursuant to s.57 of the Criminal Justice Act 2003).
Lord Bridge went on to consider questions of costs. As for an order that a defendant make a contribution to his own costs, he expressed unease that there should be no remedy "no matter how gravely flawed by errors or law or procedure the order may be", but he did not overrule the relevant decision ( Reg v Crown Court at Cardiff ex parte Jones [1974] 1 QB 113). He went on, however, to discuss the statutory criterion in relation to legal aid and added:
"This is quite a different criterion from such as would govern the discretion whether or not to make any of the orders for costs which may be made under s.3(1)(a) or s.4(1) of the Costs in Criminal Cases Act 1973. The exercise of that discretion is intimately related to the conduct of the trial; indeed, it may be said to be an integral part of the trial process".
The provisions of s.4(1)(b) of the Costs in Criminal Cases Act 1973 concerned the payment of costs by the prosecutor if the accused is acquitted. In his speech, Lord Bridge does not specifically deal with s.3(1)(b) (which concerned orders of payment of defence costs out of central funds), but it is difficult to see why similar reasoning should not apply to the current legislation (contained within the Prosecution of Offenders Act 1985) bearing in mind para 2.2.1 of the Practice Direction (Costs in Criminal Proceedings) July 2010, which enjoins the court to make a defendant's costs order unless there are positive reasons for not doing so (of which the example provided is that the defendant's own conduct has brought suspicion on himself and has misled the prosecution into thinking that the case against him was stronger than it was). In each case, the court is required to make a judgment of the comparative positions and responsibilities of the prosecutor and the defendant.
The House of Lords returned to the issue of legal aid costs in Re Sampson [1987] 1 WLR 194 and decided that subsisting contribution orders made by the Crown Court under the provisions of s.32(1) of the Legal Aid Act 1974 were not subject to judicial review because such orders were matters 'relating to trial on indictment' because as being an integral part of the trial process. Lord Bridge referred to his speech in Smalley and said (at 196):
"It is in any event clear, I apprehend, that certain orders made at the conclusion of a trial on indictment are excluded from judicial review as relating to trial on indictment; not because they affect the conduct of the trial, but rather because they are themselves an integral part of the trial process. This is obviously true of the verdict and sentence. It is equally true, according to the provisional view that I expressed in In Re Smalley of certain orders for the payment of costs made under the Costs in Criminal Cases Act 1973 …
An order that the prosecutor pay the whole or any part of the costs of an acquitted defendant under s.(4)1(b) is not appealable, nor is any decision under s.3(1) either to make or to refrain from making an order for payment of costs out of central funds in favour of the prosecution or the defence. The common characteristic of all decisions made by the Crown Court under these provisions is that the court is exercising a discretion in the light of what it has learned in the course of a trial as to the nature of the case, both for the prosecution and the defence and in the light of the conduct and outcome of the trial itself: see guidance given by the Practice Direction (Costs: Acquittal of Defendant) [1981] 1 WLR 1383. It follows...
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