Olden v Crown Prosecution Service
| Jurisdiction | England & Wales |
| Judge | Lord Justice Longmore,Lord Justice Ward,Lord Justice Toulson,Mr Justice Hedley |
| Judgment Date | 14 June 2010 |
| Neutral Citation | [2010] EWCA Civ 217,[2010] EWCA Civ 961 |
| Docket Number | Case No: C1/2009/0841 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 June 2010 |
[2010] EWCA Civ 217
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(Mr Justice Mccombe)
Before: Lord Justice Longmore
Case No: C1/2009/0841
Mr C Pigram (instructed by MJP Justice) appeared on behalf of the Appellant.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
Lord Justice Longmore:
This is an application for permission to appeal made by Mr Olden in respect of the costs to which he has been put as a result of a restraint order made at the beginning of the criminal proceedings against him, which were essentially in relation to mortgage frauds.
He was convicted, but then that conviction was set aside by the Court of Appeal and it is to be noted that the reason why the conviction was set aside was that the initial arrest was said to be in breach of the Police and Criminal Evidence Act 1984, and the actual ratio of the decision, as I understand, was that the arresting officer was never asked in the Crown Court whether he actually suspected Mr Olden of committing mortgage fraud, and the Court of Appeal in paragraph 25 of their judgment said that that was fatal to the legality of the arrest.
The CPS applied for permission to appeal to the House of Lords but were refused. It is also fair to say that the Court of Appeal dealt with other grounds of appeal, among them that the case should have been dismissed at half-time on the basis that there was no case to answer, but that ground of appeal was rejected because it was said that there was a strong case to answer. Nevertheless it is the fact that Mr Olden's conviction was set aside. He claims to have incurred costs in relation to the restraining order.
I pointed out to Mr Pigram this morning that insofar as he was put to expense as a result of the order being made, those are not recoverable costs because the Crown, when applying for a restraining order, does not give an undertaking in damages in the same way as an ordinary civil litigant has to do. But Mr Pigram assures me that there are costs associated with the restraint order which would be recoverable in the ordinary way if the CPS were liable to pay them. That is a matter to which I will return at the end of my short judgment.
There are two proposed grounds of appeal. One, that it was unfair that no oral hearing was granted below. I do not think anything of that ground. The judge was entitled to proceed on the papers unless it was made clear to him that an oral hearing was required. It has not been made clear to me that any such application for an oral hearing was made after the CPS made their submissions, albeit late. But since I propose to give permission to appeal on the substance of the matter, that really falls away since Mr Olden will get his oral hearing in any event before this court.
On the substance of the matter, and the reason why I give permission to appeal, is that the judge dealing with the matter on the papers said this:
“In my judgment, this is indeed a case in which the Defendant brought the prosecution upon himself. The making of the restraint order was an inevitable corollary of that prosecution. In line with the decision of R v Connelly of 1.11.95 and the Practice Direction (Costs: Criminal Proceedings) [2004] 2 All ER 1070, I consider that it is right to direct that there be no order as to costs.”
That obviously is a matter for the judge's discretion, but Mr Pigram has this morning pointed out that in the case of Grimes v CPS [2003] EWCA Civ 1814 this court held that the CPS is in the position of an ordinary litigant.
It does seem to me that Connelly may not be the last word on the subject, being an unreported case before the Civil Procedure Rules came into force, and the reference to the Practice Direction may be misguided insofar as the judge was intending to refer to Part II.2 rather than Part II.3 since my current understanding is that restraint orders are dealt with—an understanding which Mr Pigram confirms, I should say—pursuant to the regime of costs in the Civil Procedure Rules.
For those reasons I will give permission to appeal, although Mr Olden must recognise that he still has to set aside the discretion which McCombe J exercised in relation to costs, which is a very uphill task. He claims to have incurred £25,000 worth of costs, and in the circumstances I think it right that it should be ventilated at an oral hearing before the full court. However, I am concerned that it is quite likely that the costs which are being claimed against the CPS are much more attributable to the loss and damage he may have suffered as a result of the order being made, which I do not think can be recovered from the CPS, and so I will require that within 28 days Mr Olden should make and serve a witness statement setting out all the costs which he is claiming and explaining why they are recoverable from the CPS as the ordinary costs of civil proceedings in relation to a restraint order.
On that condition, I will give permission to appeal.
Order: Application granted in part.
[2010] EWCA Civ 961
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISON
ADMINISTRATIVE COURT
(Mr Justice Mccombe)
Before: Lord Justice Ward
Lord Justice Toulson
and
Mr Justice Hedley
Case No: C1/2009/0841
Mr Christopher Pigram (instructed by MJP Personal Injury Ltd) appeared on behalf of the Appellant.
Mr Jonathan Hall (instructed by Crown Prosecution Service) appeared on behalf of the Respondent.
Lord Justice Ward:
This is an appeal brought by Mr Ronald Olden, with the permission of Longmore LJ, against orders made by McCombe J on 19 February 2009 and, again, on a reconsideration on 17 March 2009 making no order for the cost of a restraint order which had been granted to the Crown Prosecution Service, the respondent to this appeal.
The appellant was arrested on 4 August 2004 and interviewed by a police officer regarding allegations of deceptions practised by him. I shall explain more about that in a moment. On 26 November 2004, a restraint order was obtained under section 77 of the Criminal Justice Act 1988 on an application made by the CPS without notice. Costs were reserved. The appellant made no application to vary or discharge that order. On 8 February he was convicted on three counts of obtaining property by deception, on 17 counts of obtaining a money transfer by deception and on two counts of obtaining services, namely the use of a bank account, by deception.
The appellant was at the material time an undischarged bankrupt and it was undisputed that he had obtained two false passports in false names, passing himself off as Trevor Paul Ellis and Martin Dubrey and a false driving licence in the name of Terence Leslie Batters, his third alias. Using these false identities, he opened bank and building society accounts and then took out mortgages and obtained unsecured and secured bank loans in those assumed names. He was sentenced to a term of four years in prison.
He appealed on a number of grounds. He was successful on only one of them. On 9 March 2007, the Court of Appeal Criminal Division said in the judgment of Dyson LJ (as he then was) that, with regard to the appellant's submission that the trial judge erred in not stopping the case at the conclusion of the prosecution, paragraph 44:
“In our judgment, the judge was right to say there is a case to answer on the evidence before the jury. There was evidence on all the counts on which the appellant was convicted from which the jury was entitled to draw the necessary irresistible inference that a lending decision based on a false identity, to a person who was or had been bankrupt and who made applications on forms which contained false statements was one procured by deception, that is to say that the deception operated on the mind of the lender. …
In our view, the judge was right to hold there was a case to answer. Indeed, in our view it was a strong case.”
Nonetheless, the appellant's appeal succeeded on what most would think to be a highly technical and fortuitous ground, namely that the Crown failed to establish that the actual officer who arrested the appellant did not himself have the necessary reasonable ground for making that arrest, notwithstanding the fact that the detective constable who was investigating this series of mortgage frauds had ample ground to suspect Mr Olden (otherwise known as Ellis or Dubrey or Batters). Because that arrest was unlawful, the interview subsequently conducted by the detective constable and the searches which resulted from it were also held to be unlawful. In those circumstances the convictions had to be quashed. Some might say that the appellant was a lucky boy.
Meanwhile, so far as the restraint order is concerned, it...
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