R Anthony Wollenberg v The Crown Court at Southwark
| Jurisdiction | England & Wales |
| Judge | Mr Justice Goose |
| Judgment Date | 17 July 2020 |
| Neutral Citation | [2020] EWHC 1915 (Admin) |
| Date | 17 July 2020 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4486/2019 |
[2020] EWHC 1915 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Goose
Case No: CO/4486/2019
and
The Claimant appeared in person
The Defendant was not represented
The Interested Party was not represented
Hearing dates: 7 th July 2020
Approved Judgment
Introduction
Mr Anthony Wollenberg is the Claimant in judicial review proceedings he seeks to bring against the Crown Court at Southwark, in relation to a decision made on the 29 July 2019 by Her Honour Judge Taylor, the Honorary Recorder of Westminster, in refusing his application for prosecution costs pursuant to section 17 of the Prosecution of Offenders Act 1985. The application for permission to bring these proceedings was refused on the papers by Mr Justice William Davis and was renewed orally before me. At the conclusion of the hearing, in which neither the Defendant nor the Interested Party appeared, I reserved judgment.
Background
On the 22 March 2018 Mr Wollenberg (“the Claimant”) brought a private prosecution against four defendants alleging that they had each been parties to a fraudulent conspiracy and one of them to a statutory fraud, in respect of which he was the victim. Having obtained summonses from the Magistrates' Court, the defendants were sent to the Crown Court pursuant to section 51 of the Crime and Disorder Act 1998 for a preliminary hearing. At that hearing the defendants indicated that they were to apply for the dismissal of the charges, under schedule 3 paragraph 2 of the 1998 Act, on the basis that the evidence against them was insufficient for their conviction. Essentially, the submission was that there was no case against them. On the 6 February 2019, after a two day hearing, Her Honour Judge Taylor provided a detailed ruling in which she dismissed all charges against the defendants. The defendants subsequently made applications for costs to be paid by the Claimant, as the prosecutor, under section 19 of the Prosecution of Offenders Act 1985. Those applications were later withdrawn. On 3 June 2019 the Claimant made his own application for prosecution costs from Central Funds, pursuant to section 17 of the 1985 Act. The application was heard on 22 July 2019 and was dismissed. Her Honour Judge Taylor's ruling was handed down on 29 July and is the decision which is the subject matter of these proceedings for judicial review.
The Claimant's grounds
The Claimant relies upon eight grounds in support of his case that the judge's refusal to award prosecution costs under section 17, exhibited such flaws of reasoning and of sufficient gravity as to amount to jurisdictional errors so that the decision made was without jurisdiction and should be quashed. To obtain permission for these proceedings it must be established that his case is reasonably arguable. The grounds can be stated shortly as follows:
Ground 1 – there was no proper basis for the court's finding that the prosecution was brought for a dominant improper motive;
Ground 2 – the court was wrong in law to withhold costs due to insufficiency of evidence at the commencement and during the continuation of the case;
Ground 3 – the court was wrong in law to attach no weight to any of the experts reports and their core conclusions;
Ground 4 – in refusing to award costs, the judge impermissibly allowed herself to be influenced by the lack of evidence of an award in similar circumstances in which charges had been dismissed; a failure to secure a conviction is not of itself a relevant consideration in the decision upon whether to award costs;
Ground 5 – the court impermissibly allowed itself to be influenced by the quantum of costs claimed by the Claimant;
Ground 6 – the judge was impermissibly influenced by the prosecution's failure to apply for a Voluntary Bill following the dismissal ruling;
Ground 7 – in proceeding to rule on the application for costs without paying due regard to the Claimant's unchallenged oral evidence at the cost hearing, the judge adopted a flawed process which was procedurally unfair;
Ground 8 – the judge appeared to take no account of the Claimant's latest statement and skeleton argument, both dated 3 June 2019;
There have been no submissions made by the Defendant or the Interested Party. Whilst there has been an acknowledgement of service by the Southwark Crown Court, by convention no submissions are made by a court in an application for judicial review of its decisions. The Interested Party has also declined to take part in these proceedings.
The legal framework
The power to award costs to the prosecution at the conclusion of criminal proceedings is contained within section 17 of the Prosecution of Offenders Act 1985:
“ Prosecution costs.
(1) Subject to subsections (2) and (2A)] below, the court may—
(a) in any proceedings in respect of an indictable offence;
…
order the payment out of central funds of such amount as the court considers reasonably sufficient to compensate the prosecutor for any expenses properly incurred by him in the proceedings.
…
(2A) Where the court considers that there are circumstances that make it inappropriate for the prosecution to recover the full amount mentioned in subsection (1), an order under this section must be for the payment out of central funds of such lesser amount as the court considers just and reasonable.
(2B) When making an order under this section, the court must fix the amount to be paid out of central funds in the order if it considers it appropriate to do so”
The power to order prosecution costs is different to the power to order wasted costs under section 19 of the 1985 Act. The tests to be applied are different.
The Criminal Procedure Rules “Costs Out Of Central Funds” at Rule 45.4(5) it provides:-
“45.4(1) This rule applies where the court can order the payment of costs out of central funds…
(5) the general rule is that the court must make an order, but –
…
(b) the court may decline to make a prosecutors cost order, if, for example, the prosecution was started or continued unreasonably”.
The principles which emerge, and which should be applied when a court is asked to consider an application for prosecution costs under section 17 of the 1985 Act, may be summarised as follows:-
(i) the general rule is that costs should be paid from central funds, unless a lesser sum is appropriate; the amount of costs to be paid are those that the court considers to be reasonably sufficient to compensate the prosecutor for any expenses properly incurred;
(i) there is a discretion to decline to make an order if, for example, the prosecution was started or continued unreasonably;
(ii) or there is some other good reason for not doing so; examples include where proceedings have been instituted or continued without good cause or there has been misconduct;
(iv) whilst those examples are given in the Practice Direction and in the rules, they are not determinative of the extent of the discretion upon whether to refuse costs to the prosecution. The touchstone is objective reasonableness and proper conduct. Therefore, if the prosecution have behaved unreasonably and/or improperly then the court may refuse to award costs from central funds. Whether the private prosecutors conduct of the prosecution can be reasonably described as unreasonable or improper is essentially a fact specific question: each case will depend on its own facts such that reference to other decided cases on their facts is of little assistance.
Whilst the Claimant during the course of oral submissions and in his skeleton arguments has sought to provide assistance from cases seeking to describe the meaning and effect of prosecutorial misconduct, that is not the test for refusing to pay costs from central funds to the prosecution; it is an example of unreasonable or improper conduct.
Since these proceedings are for judicial review in respect of a criminal cause on indictment in the Crown Court, namely cost orders consequential upon their completion, ordinarily a decision of the Crown Court cannot be challenged by the High Court – see section 29(3) of the Senior Courts Act 1981. Where, however, there is a jurisdictional error of sufficient gravity to take the case out of the jurisdiction of the Crown Court, the High Court may intervene. In the Crown Court at Maidstone, ex-parte London Borough of Harrow [2001] 1 CR App R 117 it was held that a judge had no jurisdiction to...
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