R (Director of Public Prosecutions) v Aylesbury Crown Court and Another

JurisdictionEngland & Wales
JudgeLady Justice Sharp,Mr Justice Julian Knowles
Judgment Date24 November 2017
Neutral Citation[2017] EWHC 2987 (Admin)
Docket NumberCase No: CO/6177/2016
CourtQueen's Bench Division (Administrative Court)
Date24 November 2017
Between:
R (Director of Public Prosecutions)
Claimant
and
Aylesbury Crown Court

and

AB (Interested Party)
Defendant

[2017] EWHC 2987 (Admin)

Before:

Lady Justice Sharp DBE

Mr Justice Julian Knowles

Case No: CO/6177/2016

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Mr Greg Treverton-Jones QC (instructed by CPS) for the Claimant

Hearing dates: 24 October 2017

Lady Justice Sharp
1

This is an application by the Crown Prosecution Service (the CPS) for judicial review. It seeks an order quashing a costs order (the costs order) made against it by HH Judge Sheridan at the Aylesbury Crown Court on 14 September 2016. The costs order was made under section 19 of the Prosecution of Offences Act 1985 (the 1985 Act) and the Costs in Criminal Cases (General) Regulation 1986 (the Regulations). The judge ordered that the CPS should pay "the full costs of defence, to be taxed."

2

The core submission made on behalf of the CPS is that the judge fell into error and acted without jurisdiction in ruling that the CPS should be liable for the actions of an expert witness instructed by it when the expert witness was an independent third party and the judge was unable to identify any unnecessary or improper act or omission. It is submitted, further, that in failing to specify the costs in the costs order, the judge acted unlawfully.

3

Neither the defendant nor the Interested Party attended the hearing before us. However the Interested Party has lodged a Statement of Grounds contesting the claim, and a short skeleton argument opposing the application.

The legal framework

4

Section 19 (1) of the 1985 Act provides that:

"The Lord Chancellor may by regulations make provision empowering magistrates; courts, the Crown Court and the Court of Appeal, in any case where the court is satisfied that one party to criminal proceedings has incurred costs as a result of an unnecessary or improper act or omission by, or on behalf of, another party to the proceedings, to make an order as to the payment of those costs."

5

The relevant part of the Regulations is regulation 3. The material parts of regulation 3 provides that:

"(1) Subject to the provisions of this regulation, where at any time during criminal proceedings—

(b) the Crown Court is satisfied that costs have been incurred in respect of the proceedings by one of the parties as a result of an unnecessary or improper act or omission by, or on behalf of, another party to the proceedings, the court may, after hearing the parties, order that all or part of the costs so incurred by that party shall be paid to him by that other party.

(3) An order made under paragraph (1) shall specify the amount of costs to be paid in pursuance of the order."

6

The jurisdiction of the High Court to review decisions of the Crown Court is governed by sections 28(2) and 29(3) of the Senior Court Act 1981 (the 1981 Act). Section 28(2) of the 1981 Act provides that the court has no jurisdiction to review " a judgment or other decision of the Crown Court relating to trial on indictment…" Under section 29(3) of the 1981 Act (as amended by article 3(b) of the Civil Procedure (Modification of the Supreme Court Act 1981) Order 2004): " in relation to the jurisdiction of the Crown Court, other than its jurisdiction in matters relating to trial on indictment, the High Court shall have all such jurisdiction to make mandatory, prohibiting or quashing orders as the High Court possesses in relation to the jurisdiction of an inferior court." Authoritative guidance as to the correct interpretation of those words was given by the House of Lords in R v Smalley [1985] 1 AC 622 and Re Sampson [1987] 1 WLR 194.

7

A preliminary point is taken by the Interested Party on jurisdiction and it is convenient to deal with it first. The submission is that because the costs order in this case related to a trial on indictment, this court has no jurisdiction to entertain this challenge for judicial review. I am satisfied however that this court has jurisdiction provided there is a jurisdictional error of sufficient gravity to take the case out of the jurisdiction of the Crown Court: see R v Crown Court at Maidstone, ex parte London Borough of Harrow [2001] 1 Cr App R 117, where it was held that where a judge has no jurisdiction to make the order he purported to make, it could not be categorised as a matter relating to a trial on indictment so as to fall within the exclusion in section 29(3) of the 1981 Act, and the order was thus amenable to judicial review. See further R (on the application of Commissioners of Customs and Excise) v The Crown Court at Leicester [2001] EWHC Admin 33 at para 17 to 22 and R (DPP) v Sheffield Crown Court [2014] 1 WLR 4639, where it was held that a jurisdictional error by the Crown Court in relation to an order for costs made by the Crown Court under section 19 of the 1985 Act was amenable to judicial review.

8

Also, in R (M) v Kingston Crown Court [2015] 1 Cr App R, the Court said at para 32:

"…there is a binding decision to the effect that, where an order is made relating to a trial on indictment, nonetheless it may be quashed in circumstances where the defect is so severe that it deprived the court below of jurisdiction to make it … The question is whether there is a jurisdictional error of such gravity as to take the case out of the jurisdiction of the Crown Court.."

9

Mr Treverton-Jones QC for the claimant has drawn our attention to paras 7–10 and para 7–12 of the current edition of Archbold, where it is suggested that there is a tension between the decisions to which I have referred and the decision in Hunter v Crown Court at Newcastle [2013] EWHC 191 (Admin); [2014] QB 94. It is unnecessary to refer to the facts in Hunter. It is sufficient to note that the decision in Maidstone Crown Court was not cited to the court in Hunter, nor did the court consider the jurisdictional route out of the section 28(2) 'bar'. In contrast, the court in Sheffield did refer to Hunter but nonetheless concluded in unambiguous terms that such a jurisdictional route was available. In Sheffield the judge decided to award costs against the CPS because he disapproved of the decision to prosecute. Lord Thomas of Cwmgiedd CJ, giving the judgment of the court (Elias LJ and Mitting J) said:

"23 In R v Maidstone Crown Court, Ex p Harrow London Borough Council [2000] QB 719 Mitchell J set out the applicable principles as to whether the decision under challenge was a decision made without jurisdiction in the context of section 28(2) and section 29(3) of the 1981 Act. He concluded, and we agree, that if there was no jurisdiction for the judge to make the order under section 19 of the 1985 Act, no question could arise as to the lack of this court's jurisdiction under section 28(2) of the 1981 Act to set aside the order of the judge.

24 In our judgment for the reasons we have set out the judge had no jurisdiction to make the order he did. It follows therefore that this court has jurisdiction and can quash that part of the order awarding costs against the CPS."

The background facts

10

The Interested Party was arrested at his mother's address on 2 June 2015, on suspicion of possession of indecent images. A search of the property was carried out, and various items of computer equipment were seized. He was interviewed and denied being in possession of such images. He stated that someone he had met online on a gay website had sent some images to him, that he realised that they were illegal, and that he had deleted them within minutes of their receipt. He accepted that there were other pornographic images on his computer, but stated that these were not of children.

11

The Crown instructed an expert witness, Mr Wileman, a senior digital forensic technician at Disklabs in Staffordshire, an independent forensic data consultancy, to examine the Interested Party's computer equipment and to prepare a report for use in criminal proceedings. He examined the hard drive of a Dell computer taken from the Interested Party's address, and produced a report and summary of evidence. He concluded that there were 123 indecent images of children, of which 122 were inaccessible to the user of the machine. The exception was a category A 1 image, which was stated to be accessible. The expert's examination took place on 2 September 2015, and his CJA statement was dated 22 February 2016.

12

The Interested Party was charged on 12 May 2016, and appeared before the magistrates' court on 21 June 2016. He was then charged on indictment with one offence of possessing an indecent image of a child, contrary to section 160 (1) of the Criminal Justice Act 1988, and six counts of making indecent images of children between 2 September 2010 and 2 June 2015, contrary to section 1 of the Protection of Children Act 1988. The Interested Party was arraigned at the Crown Court on 19 July 2016, and pleaded not guilty to all counts.

13

In due course the Interested Party's solicitors instructed an expert, a Mr Watts of Griffin Forensics Ltd, who produced a report dated 16 August 2016. He records in

his report that he sought clarification from Mr Wileman in respect of the location of the image which formed the possession count on the indictment: "On checking, the prosecution expert informed me that in fact this IIOC 2 had been deleted and was therefore not in the possession of the Defendant." Mr Watts concluded that no indecent images of children were found to have been saved anywhere on the computer's hard disk drive, and that the only pictures that were identified were either deleted or in system-created areas to which the user had no access.
14

Mr Watts sought Mr Wileman's comments upon his report. On 19 August 2016, Mr Wileman sent an email that said: "There are no areas of disagreement. The one image I...

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