R Maninder Singh v Ealing Magistrates Court The Crown Prosecution Service (Interested Party)

Hearing dates: 01 May 2014

This is the judgment of the court.

The claimant was charged on 29 ^th April 2013 with possession of a controlled drug and driving while unfit through drugs. He was bailed to attend the Ealing Magistrates' court on 17 ^th May. He attended on that day together with a legal representative for whom he was paying himself. The hearing on 17 ^th May was entirely abortive since no prosecution papers were available. The claimant's advocate applied for costs against the prosecution pursuant to section 19 of the Prosecution of Offences Act 1985. Both the substantive hearing and the application for costs were adjourned to 23 ^rd May.

On 23 ^rd May the claimant appeared before a deputy district judge and pleaded guilty to possession of a controlled drug. He was sentenced to a fine of £75 and ordered to pay prosecution costs of £85 and a victim surcharge of £20. He pleaded not guilty to the charge of driving whilst unfit which was adjourned for trial. The judge then considered the defence application for the costs of the 17 ^th May hearing under section 19 and refused it. A note of the judge's oral decision made by the deputy clerk to the justices reads as follows:-

"Who was responsible for the wasted hearing?

What could have been done to avoid this?

Fact – defendant arrested and taken to Acton Police Station. Taken and charged with 2 matters. Process of Police involves OIC (officer in case) preparing papers and leaving it in a tray. As I understand it is a tray designated for papers.

OIC has no further involvement in administration. Papers are then collected by the case progression unit – who they are is still unclear to me. Case progression officers then hand papers on to prosecution.

Matter didn't proceed on 17/05/2013 as someone in the case progression unit didn't do their job or missed the papers or that person who was responsible to hand papers to the CPS didn't.

However, no clear identification of party responsible. Statutory test states we need to identify the party whose fault it was. Unable to identify the party in the statutory test I have to apply. Cannot make wasted costs order.

Application fails."

On 23 ^rd August the claimant sought judicial review of the judge's decision refusing his application for costs. The CPS was served as an interested party. On 18 ^th January 2014 permission was granted on the papers by Irwin J. For reasons which will appear later in this judgment Mr Morley QC for the claimant and Mr Richardson for the Crown Prosecution Service jointly invited us to treat the matter as if it were an appeal by way of case stated on the correctness or otherwise of the judge's decision in addition to a judicial review application.

Section 19(1) of the 1985 Act enables regulations to be made giving criminal courts power:-

"….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."

Regulation 3 of the Costs in Criminal Cases (General) Regulations 1986 repeats the wording of the test set out in section 19(1) of the Act. It should be noted at the outset that the power is older than, and distinct from, the jurisdiction to make wasted costs orders against legal representatives, created by the Courts and Legal Services Act 1990 and set out in section 19A of the 1985 Act.

The judge refused an order for costs because it was not possible to identify "the party whose fault it was". As Mr Richardson accepts, this reasoning cannot be supported. All too often, when a mistake is made in the preparation or conduct of a CPS prosecution, the police and the CPS blame one another. But for the purposes of section 19 no distinction can be drawn between them: the "party" on the other side from the accused in such a case is the Crown. It is therefore agreed that the judge made an error of law.

Mr Richardson, however, submits that this was not a case for any order for costs to be made under section 19, even on the findings of fact contained in the judge's decision.

The leading case on the interpretation of section 19 is Director of Public Prosecutions v Denning [1991] 2 QB 532. Nolan LJ observed at 540C that the power can be exercised at any stage, and is distinct from any general order for costs made at the end of the case. At 541C he said:-

"… the word "improper" in this context does not necessarily connote some grave impropriety. Used, as it is, in conjunction with the word "unnecessary" it is, in my judgment, intended to cover an act or omission which would not have occurred if the party concerned had conducted his case properly."

In R (Commissioners of Customs and Excise) v Crown Court at Leicester [2001] EWHC Admin 33 Lord Woolf CJ said:-

"An examination of the language of the Regulations makes it clear that the proper exercise of the jurisdiction under Regulation 3 requires, first, the judge to consider whether there has been an unnecessary or improper act or omission. Secondly, the judge has to consider whether costs have been incurred as a result of that unnecessary or improper act or omission by one of the parties. Thirdly, the court has to consider whether it will as a matter of discretion order all or part of the costs so incurred to paid to the other party by the party in default. It is implicit in the last stage that, before an order is made, the judge is required to identify the costs so incurred (that is the costs incurred as a result of the unnecessary or improper act or omission). Having performed those exercises, finally, the judge will have to specify the amount of costs to be paid. There is therefore a formal structure to be followed before an order is made."

Mr Richardson submits that the sanction under section 19 is "punitive" and that the court's discretion under section 19 should not be exercised where "the fault is the result of a mistake". He distinguishes a mere mistake or oversight from improper conduct of the case. He...