R Shaw v Exeter Crown Court
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE LLOYD JONES |
| Judgment Date | 06 December 2011 |
| Neutral Citation | [2011] EWHC 3968 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2085/2011 |
| Date | 06 December 2011 |
[2011] EWHC 3968 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at:
Cardiff Civil Justice Centre
2 Park Street
Cardiff
CF10 1ET
Mr Justice Lloyd Jones
Case No: CO/2085/2011
Miss Grubb (instructed by Alistairs Solicitors) appeared on behalf of the Claimant.
The Defendant did not appear and was not represented.
This is the hearing of an application for judicial review by Mr Adrian Shaw against the Exeter Crown Court. The background to the matter is that on 19 October 2011 Mr Shaw filed an appeal notice in the Exeter Crown Court seeking to appeal eight convictions that had been entered against him in his absence in the Magistrates' Court and for which he had been sentenced on 3 April 2008. The eight convictions comprised two convictions of driving a vehicle on a road when using a hand-held mobile telephone; two convictions of using a motor vehicle on a road when there was not in force a policy of insurance in respect of third party risks; two convictions of driving a motor vehicle on a road and on being required by a constable failing to produce for examination a test certificate in respect of the vehicle; one conviction of driving on a road otherwise than in accordance with a licence; and one conviction of failing to produce a driving licence when lawfully required. As a result of those convictions he was fined a total of £745 and his licence was endorsed with a total of 12 points.
The appeal was heard on 14 January 2011 by His Honour Judge Tyzack QC sitting with magistrates. The prosecution withdrew seven of the eight charges at the outset of the hearing and so the appeal against seven of the eight convictions was allowed. However, the court refused to make a defendant's cost order under section 16 of the Prosecution of Offences Act 1985, the judge observing that the claimant had lost his principal appeal. Thereafter the claimant's representative, Mr Balchin, wrote to the court on 15 January 2011 and again on 1 February 2011 requesting that the judge vary the order under rule 42.4 of the Criminal Procedure Rules. That was refused by letter dated 11 February 2011 in which an officer of the court stated that the application had been considered by Judge Tyzack. The letter continued:
"I am afraid your application to be heard is refused. Your client lost the principal appeal against conviction, hence this order for costs was made. There is no merit in this application."
The claim form seeking permission to apply for judicial review was issued on 7 March 2011 in the Administrative Court at Cardiff. In that claim form the decision to be challenged was identified as the decision of Judge Tyzack dated 11 February 2011, that is the refusal to re-open the matter. An acknowledgement of service has been lodged in due course by the Crown Court. As is usual in these circumstances the court has not appeared to oppose the application. It is clear that the court has been kept informed of the progress of the matter, including being given notice of a recent application to rely on further evidence. The Crown Court has indicated that it has no interest in responding to that application.
It is necessary, however, to say something about the history of the matter because of the twists and turns which it has taken. When the matter came before Hickinbottom J on the papers on the application for permission to apply for judicial review, the judge refused permission. The judge observed that from the papers it appeared to him that the prime motivation to have the costs issue listed – I think he is referring there to the judicial review – is the claimant's desire to air in public various criticisms of the Magistrates' Court publicly. It has been said that Mr Shaw has expressed no interest in the issue, nor have the claimants sought to have him joined as an interested party. That is a reference to the fact that, at that stage, the proceedings were brought by Alistairs Solicitors, the firm acting on behalf of Mr Shaw. The judge observed that the claim was not arguable; that even if the claimants had locus and even if rule 42.4 applied the judge was clearly entitled to refuse a hearing to reconsider the order he made on the appeal. The judge went on to say that from the letter of 11 February 2011 it is clear the judge did reconsider his order following correspondence and was not minded to vary it and was not minded to exercise any power he might have to reconsider the order at a hearing. Hickinbottom J agreed with the judge's view that the application was totally without merit.
The application was renewed. By that time Miss Grubb, who appears before me today, had been instructed on behalf of Alistairs Solicitor. She had taken a hold of this case and it is fair to say that at that hearing before Beatson J it was presented on a rather different basis. I should say that I am very grateful to Miss Grubb for her helpful submissions today. Beatson J granted permission to proceed with the claim on two grounds. First, that the claimant was not given a proper opportunity to make submissions as to costs, and secondly that the decision of Judge Tyzack was based on a mistake of fact, namely that Mr Shaw had lost the principal appeal. However, he refused permission to proceed on a further ground that the decision of Judge Tyzack and the magistrates was Wednesbury unreasonable.
There remained some concern, however, as to whether Alistairs Solicitors was the appropriate claimant in these proceedings. Beatson J had drawn attention to this question and had drawn the attention of the claimant to R v Legal Aid Board, ex parte Bateman [1992] 1 WLR 711. No doubt as a result of that, an application was made before HHJ Seys Llewellyn QC, sitting as a deputy judge of the High Court, who on 31 August 2011 allowed an application by Mr Balchin, who is the representative of Alistairs Solicitors, that that firm be removed from the claim and Mr Shaw be added as the new claimant to the proceedings. That was duly done.
I turn to the law. Section 16(3) of the Prosecution of Offences Act 1985 provides:
"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 …
the Crown Court may make a defendant's costs order in favour of the accused."
Paragraph 2.2.3 of the Criminal Costs Practice Direction provides:
"The Crown Court may make a defendant's costs order in favour of a successful appellant"
Paragraph 2.2.1 states:
"Where a person is not...
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