R (Cunningham) v Exeter Crown Court
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE CLARKE,MR JUSTICE JACK |
| Judgment Date | 28 January 2003 |
| Neutral Citation | [2003] EWHC 184 (Admin) |
| Docket Number | CO/3092/2002 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 28 January 2003 |
[2003] EWHC 184 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand London WC2
Lord Justice Clarke
Mr Justice Jack
CO/3092/2002
MR KERRY BARKER (instructed by Crosse & Crosse, Exeter EX4 3PU) appeared on behalf of the CLAIMANT
THE DEFENDANT WAS NOT REPRESENTED
Tuesday, 28 February 2003
This is an application for judicial review of a decision of the Crown Court at Exeter. On 28 November 2001, the Magistrates' Court at Exeter fined the claimant, Patrick Cunningham, £15,000 for an offence of knowing that a place in respect of which a public entertainments licence was in force would be used otherwise than in accordance with the conditions of the licence, contrary to paragraph 12(2) of Schedule 1 to the Local Government (Miscellaneous Provisions Act) 1982. In short, the licence limited numbers at the Cavern Nightclub to 220, whereas on 9 May 2001 there were many more people than that. When a senior fire officer attended, following complaints of overcrowding, there was an issue as to how many people were present. The fire officer estimated about 400, whereas the claimant estimated between 310 and 330.
The claimant pleaded guilty before the magistrates. In addition to the fine, he was ordered to pay £421.60 costs. The claimant appealed to the Crown Court against the amount of the fine. That appeal was by way of re-hearing under section 79(3) of the Supreme Court Act 1981 and was heard by Mr Recorder Miller and two justices on 5 April 2002. The fine was reduced to £12,000 but the court refused an application by the claimant for costs out of central funds. It gave no reason for that refusal. The note which counsel, Mr Barker, who appeared before the Crown Court and has appeared before us today, made, contains these exchanges after the recorder had given reasons for reducing the fine to £12,000.
"Counsel: Since the appeal has been successful, may I apply for a defendant's costs order?
"Recorder: No.
"Counsel: I am not asking for costs against the local authority but costs from central funds.
"Recorder: No."
On 8 August 2002, Richards J granted permission to apply for judicial review on the express basis that it was arguable that the refusal of a defendant's costs order was unlawful, either because of the absence of reasons per se or on the ground that the court erred in the exercise of its discretion. He added that the success, albeit only partial success, on appeal was a factor in favour of the order, and that in the absence of reasons it was not possible to say what, if any, factors the court took into account against the making of an order or, therefore, whether it struck a reasonable balance.
The prosecution, namely the local authority, was represented before the Crown Court but does not appear and is not represented on this application; nor is the Crown Court. Mr Barker submits on behalf of the claimant that the refusal to award costs to the claimant was wrong in principle and irrational, especially without giving any reasons.
The power to award costs to a successful defendant, which is known as a defendant's costs order, is contained in section 16 of the Prosecution of Offences Act 1985 which provides, so far as relevant, as follows:
"16(3) Where a person convicted of an offence by a magistrates' court appeals to the Crown Court under section 108 of the Magistrates' Courts Act 1980 (right of appeal against conviction or sentence) and, in consequence of the decision on appeal —
(a) his conviction is set aside; or
(b) a less severe punishment is awarded;
—the Crown may make a defendant's costs order in favour of the accused."
That section contains no guidance as to how the discretion should be exercised. There are, however, two Practice Directions which are relevant to such orders; namely, Practice Direction (Crime: Costs) [1991] 1 WLR 498 and, Practice Direction (Crime: Defence Costs) [1999] 1 WLR 1832. Paragraphs 1.1 and 1.5 of the 1991 Practice Direction provide:
"1.1 This Direction shall have effect in magistrates' courts, the Crown Court, the Divisional Court of the Queens Bench Division and the Court of Appeal (Criminal Division) where the court, in the exercise of its discretion, considers an award of costs in criminal proceedings or deals with criminal legal aid costs and contributions.
"1.5 Where a court orders that the costs of a defendant, appellant or private prosecutor should be paid from central funds, the order will be for such amount as the court considers reasonably sufficient to compensate the party for expenses incurred by him in the proceedings … "
Paragraph 2.2 of the 1991 Practice Direction as substituted by paragraph 2 of the 1999 Practice Direction, expressly relates to this Crown Court and is in these terms:
"2.2 Where a person is not tried for an offence for which he has been indicted or committed for trial, or has been acquitted on any count in the indictment, the court may make a defendant's costs order in his favour. Such an order should normally be made whether or not an order for costs inter-partes is made, unless there are positive reasons for not doing so. Examples of such reasons are:
(a) The defendant's own conduct has brought suspicion on himself and has misled the prosecution into thinking that the case against him is stronger than it is."
Although the Practice Directions do not contain any paragraph which expressly refers to the approach to be adopted on appeals to the Crown Court. Paragraph 2.4 provides that the Crown Court "may make a defendant's costs order in favour of a successful appellant: see section 16(3)".
Paragraph 2.8 of the 1991 Practice Direction in which "the court" is the Court of Appeal Criminal Division, is in these terms:
"2.8 In considering whether to make such an order, the court will have in mind the principles applied by the Crown Court in relation to acquitted defendants; see paragraph 2.2 above."
Such an order is a reference to a defendant's costs order. Paragraph 2.6 recognises the power of the Court of Appeal Criminal Division to make a defendant's costs order in favour of a successful appellant.
It is, to my mind, plain from those provisions that the same approach should be adopted by the Crown Court on appeals from the magistrates as, for example, by the Court of Appeal Criminal Division on appeals from Crown Courts. Mr Barker further submits that the refusal to award costs to the successful appellant was wrong in principle on the simple basis that he had to incur costs in order to appeal to the Crown Court and that, since his appeal was successful, justice requires that, save for good reason, he should be awarded his costs either from the respondent to the appeal or from central funds. He submits that there was here no reason to refuse to award him his costs, that the order should have been made for costs to be paid out of central funds and that the refusal to make the order was Wednesbury unreasonable. There was, he says, not only no reason to refuse the application, but every reason to grant it, because otherwise much of the reduced fine would be, as it were, wasted because of the costs reasonably incurred to secure the reduction.
The Crown Court has confirmed that there is no record of any reason being given for the decision on costs. However, in a letter to this court dated 11 November 2002, the Crown Court Operations Branch said this:
"In the appeal to the Crown Court, the defendant relied upon the guidelines of the Court of Appeal in R v Howe and Sons, 6 November 1998, concerning level of fines. Howe was not cited before the magistrates. The Crown Court allowed the appeal, stressing that the magistrates were not at fault and that if the Howe guidelines had been cited to them, they might have reached a different conclusion; see counsel's note of judgment at page 17 of the application. In deciding whether to allow the defendant the costs of the appeal, the Recorder was fully aware of the discretion of the Crown Court to allow costs out of the central funds. Having heard all the facts of the appeal and discussed the matter, the recorder and the justices refused costs. The basis for that refusal is, therefore, evident from the judgment on the appeal."
The reference to counsel's note of the judgment is a reference to these two paragraphs in that note:
"We have noted that the offences are contrary to regulations made in 1982 and that the maximum fines were set 20 years ago and maybe should be reconsidered, but the maximum fine is £20,000. From the case of Howe which was on different facts but which provides guidance for assessing the gravity of health and safety matters, we have considered the appropriate amount. We feel that if the magistrates had had the advantage of reading the case of Howe, it was not their fault it was not placed before them, they might have reached a different conclusion."
In a note taken by a representative of the claimant's solicitors, the point is put somewhat more strongly, namely that, if the magistrates had had full details of the case of Howe, they would probably have reached a lower figure. It...
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