R (on the application of Aisling Hubert) v Manchester Crown Court Dr Prabha Sivaraman (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Irwin,LORD JUSTICE BURNETT |
| Judgment Date | 18 December 2015 |
| Neutral Citation | [2015] EWHC 3734 (Admin) |
| Docket Number | Case No: CO/2374/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 18 December 2015 |
[2015] EWHC 3734 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Burnett
and
Mr Justice Irwin
Case No: CO/2374/2015
and
Michael Phillips (instructed by The Claimant) for the Claimant
Steven Kovats QC (instructed by Crown Prosecution Service) for the Defendant
Jonathan Barnard (instructed by Hempsons Solicitors) for the Interested Party
Hearing date: 1 December 2015
The Court has addressed two linked applications and we have refused permission in both cases. This application is for permission to challenge the costs order of His Honour Judge Steiger QC, made in the Manchester Crown Court on 31 March 2015. The original challenge in this matter included a challenge to the refusal of HHJ Steiger QC to recuse himself on 16 February 2015. That matter was withdrawn. By order of Mr Justice Nicol on 31 July 2015, the application for permission to challenge the costs order was ordered to be listed for a rolled-up hearing.
In the linked case, this Claimant sought permission to apply for judicial review to challenge decisions by the Director of Public Prosecutions not to prosecute Dr Prabha Sivaraman (the Interested Party in the costs matter) and Dr Palaniappan Rajmohan. In the reasons for refusal for permission in the linked case, I have set out the sequence of events leading up to the Director's decision of 13 March 2015 to intervene in the private prosecutions instigated by the Claimant against both doctors and to stop those prosecutions. In giving reasons in this application, I do not repeat the sequence of events or the reasoning set out in my judgment in the linked case. I add here only such additional fact as is necessary to understand the refusal of permission in relation to the costs order.
The Facts
The private prosecution first came before HHJ Steiger QC on 16 January 2015. Neither side attended. He then gave directions.
On 11 February 2015, following a hearing on 6 February, HHJ Steiger QC refused an application for a witness summons. In the course of his written reasons, he set out in broad terms the background to the application. He noted that the Claimant was a young woman without means, living with her parents, supported by an anti-abortion organisation. He noted that the Claimant had no connection with the facts of the case, or with that of the other similar case in Birmingham. He noted that the Claimant in her application for the originating summons sought prosecution for the substantive offence of procuring poison, intending to induce an abortion contrary to Section 59 of the Offences Against the Person Act 1861. He noted that on 10 December 2014 there had been "an attempt to amend the charge" so as to substitute a conspiracy to commit that offence.
The judge then noted that on 16 January, when the preliminary hearing in the proceedings should have been held, he had been asked to postpone the hearing, in part because the DPP was considering intervening. That decision had not yet been taken at the time of the scheduled hearing on 6 February. The judge refused the application for a summons against the Daily Telegraph. He expressed part of his reasoning as follows:
"a. On the case now made (as opposed to that advanced to the Magistrates) the prosecution has been launched without Miss Hubert or her advisers having the evidence necessary to establish the conspiracy alleged. Mr Mullins' own document (para 7) says: "The evidence is needed before the PCMH because the prosecution's case relied upon it". It is unprecedented in my experience for a prosecution to be launched without the necessary evidence against the accused bearing in mind the burden and standard of proof.
b. The evidence sought was obtained by a trick as well as a factual claim (as to the sex of the foetus given its immaturity) which could not possibly be true. Thus, even if the prosecution were to have the full recording there would be a powerful defence argument that the prosecution was an abuse and that the evidence should be excluded under section 78 of the Police and Criminal Evidence Act 1984. In my view "material evidence" under the 1965 Act means material admissible evidence and not that fatally tainted (sic).
c. The DPP has refused to prosecute and personally articulated his reasons. Although this is no bar to a private prosecution as the case of R (Gujra) v CPS [2013] 1 AC 484 SC demonstrates, it is my view relevant to the interests of justice limb in the test for a summons. Furthermore, Miss Hubert has no connection with the facts of the case and is a woman of straw without the means to pay defence costs if the prosecution fails."
As already indicated, the DPP communicated her decision to intervene and stop the prosecution on 13 March 2015. I have dealt fully with her reasoning in my judgment in the linked case. One key feature of her reasoning was that in relation to the offence for which prosecution was sought there was "no realistic prospect of a conviction" as "no admissible evidence has been served to support any offence". As I have indicated in the linked judgment, the Director went on to take a wider view of the matter. However, even following that process, she concluded that it was not in the public interest for any prosecution to be continued. For present purposes, the critical point is that there simply was no evidence to sustain a conviction for the offence which had been prosecuted by the Claimant.
Following the Director's decision, the Interested Party, as Defendant to the criminal proceedings now terminated, sought her costs. As part of her reasoning, the Interested Party made the following points. The Claimant prosecutor had no direct evidence of any offence: all the evidence on which she proposed to rely had been culled from the internet. Expert evidence advanced included contradictory positions between the experts. There was no evidence that the Interested Party had acted in bad faith and there was no evidence of a conspiracy. The Interested Party noted the Claimant prosecutor's application for a witness summons against the Daily Telegraph, including the following passage from her written note in support of the application:
"The evidence is material evidence because the full footage of the video of the consultation is needed to demonstrate that an agreement was made with another person when Dr Sivaraman telephoned a colleague. The edited video implies an agreement but the full footage is needed to demonstrate it."
The Interested Party relied on that passage as a "tacit admission" that, in the absence of the full video footage, the private prosecution was unsustainable. Therefore the proceedings had been instituted at a time when the available evidence was insufficient to support a prosecution for any offence at all.
The Interested Party's application was founded on Section 19 of the Prosecution of Offences Act 1985 and the regulations made under the Act in the form of the Costs in Criminal Cases (General) Regulations 1986. Regulation 3(1) provides:
"…where at any time during criminal proceedings [the 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 the other party."
Part 76.8 of the Criminal Procedure Rules 2013 sets out the form of application necessary for an order for "costs incurred as a result of unnecessary or improper act or omission by or on behalf of the first party". Part 4.1 of the Practice Direction (costs in criminal proceedings) [2013] EWCA Crim 1632 states as follows:
"4.1 Costs Incurred as a Result of unnecessary or Improper Act or Omission
4.1.1 … the Crown Court … may order the payment of any costs incurred as a result of any unnecessary or improper act or omission by or on behalf of any party to the proceedings as distinct from his legal representative… The court may find it helpful to adopt a three stage approach (a) Has there been an unnecessary or improper, act or omission? (b) As a result have any costs been incurred by another party? (c) If the answers to (a) and (b) are "yes", should the court exercise its discretion to order the party responsible to meet the whole or any part of the relevant costs, and if so what specific sum is involved?...
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