R The Crown Prosecution Service v Bolton Crown Court Amanda Johnson (Second Defendant)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Mr Justice Ouseley |
| Judgment Date | 16 November 2012 |
| Neutral Citation | [2012] EWHC 3570 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/5576/2011 |
| Date | 16 November 2012 |
[2012] EWHC 3570 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Richards
Mr Justice Ouseley
CO/5576/2011
Mr Andrew Edis QC (instructed by the Crown Prosecution Service) appeared on behalf of the Claimant
Mr Nicholas Lavender QC and Mr Robert Dalling (instructed by Bolton Combined Court Centre) appeared on behalf of the Defendant
The Second Defendant did not appear and was not represented
The central issue in the application before us is whether the Crown Court has power under regulation 3 of the Costs in Criminal Cases Regulations 1986 ("the 1986 Regulations"), made under section 19(1) of the Prosecution of Offences Act 1985 ("the 1985 Act"), to make a costs order against a party to criminal proceedings in favour of another party's counsel.
The relevant order was made by HHJ Everett in the Bolton Crown Court, on 24 March 2011, in relation to the costs of a plea and case management hearing ("PCMH") which had to be adjourned because, as the judge held, the case had not been prepared properly by the CPS and the papers were nowhere near ready. He ordered the CPS to pay costs of £100 plus VAT to defence counsel, Miss Amanda Johnson, on the basis that she had lost a day's hearing for which she would not receive any compensation by way of remuneration under the Advocates' Graduated Fee Scheme. The CPS challenges the order primarily on the ground that it was one the judge had no power to make. The sum in question is small but the underlying issue is one of wider importance.
The background is set out in a lengthy written judgment given by the same judge on 23 December 2009 in earlier proceedings, R v Hancock and Others. That judgment expressed serious concerns about poor performance on the part of the CPS. It stressed the importance of ensuring that PCMHs were effective but said that many such hearings did not proceed as they should because of problems with the CPS. There was inadequate preparation and consideration of cases by CPS reviewing lawyers. PCMHs were often adjourned because the prosecution was not ready. The judge understood the problem to be a widespread one, not confined to Bolton. He said that he and his colleagues had tried all sorts of remedies to try to persuade the CPS to put its house in order, but with no great overall success. The judges had therefore taken to making costs orders against the CPS, and the only order that properly reflected the difficulties was one in favour of defence counsel and, where relevant, defence instructing solicitors. The judge went on to give reasons why he considered there to be power to make such an order under section 19(1) of the 1985 Act and regulation 3 of the 1986 Regulations. I will come back to those reasons in due course.
In making the order now under challenge, the judge relied on that previous judgment of his in the Hancock case without adding materially to it, save to give reasons why he considered an order under regulation 3 and section 19(1) to be appropriate in the particular circumstances of the instant case. He also referred to the difficulty of identifying an individual CPS lawyer who was at fault so as to engage the power to make a wasted costs order against that individual, pursuant to section 19A of the 1985 Act.
I have referred to the concern that in the circumstances defence counsel would receive no compensation by way of remuneration under the Advocates' Graduated Fee Scheme for attendance at the ineffective PCMH. This calls for further explanation. Article 5(1) of the Criminal Defence Service (Funding) Order 2007 provides:
"Claims for fees by an instructed advocate in proceedings in the Crown Court must be made and determined in accordance with the provisions of Schedule 1 to this Order."
Paragraph 4(1) of Schedule 1 sets out the formula for calculation of the graduated fee in a case which proceeds to trial. It includes the "basic fee". Paragraph 6 provides that a fee payable in the case of a guilty plea or cracked trial also includes the "basic fee". Paragraph 9(1) provides that the basic fee includes the first PCMH and up to four "standard appearances". The expression "standard appearance" is defined in paragraph 1(1) of the Schedule as including a PCMH (except the first PCMH) and an ineffective hearing. If therefore counsel has to attend two PCMHs rather than one, because the prosecution papers are not ready for the first hearing and it has to be adjourned, counsel gets nothing more than the one basic fee. The fee structure allows no additional remuneration for the wasted attendance at the adjourned hearing.
The judge referred to a protocol agreed by the Bar whereby, when the instructed advocate is unable to attend a PCMH and a substitute advocate attends in his or her place, the substitute advocate is paid £100 plus VAT out of the instructed advocate's graduated fee. The details of those arrangements, though plainly very important for counsel concerned, do not matter for present purposes, but they explain the source of the judge's figure of £100 plus VAT as the amount he considered appropriate to award to defence counsel under the costs order he made against the CPS. In the particular case, however, defence counsel, Miss Johnson, was herself the instructed counsel so no question arose of payment of a fee to a substitute counsel.
I should now set out the provisions under which the judge purported to make the costs order in question. Section 19(1) of the 1985 Act provides:
"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."
Regulation 3 of the 1986 Regulations makes provision in terms similar to those of the empowering statute:
"(1) Subject to the provisions of this regulation, where at any time during criminal proceedings—
(a) a magistrates' court,
(b) the Crown Court, or
(c) the Court of Appeal
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 of the costs so incurred by that party shall be paid to him by the other party.
…
(3) An order made under paragraph (1) shall specify the amount of costs to be paid in pursuance of the order."
On behalf of the CPS Mr Edis QC advances three broad grounds of challenge to the order made by the judge in this case: first, that the judge erred in law and acted without jurisdiction in making the order, since such orders could only be made in favour of a party to the proceedings, and defence counsel was not a party to the proceedings; secondly, that the judge misdirected himself in law when addressing the question whether costs had in fact been incurred by defence counsel in respect of her attendance at the PCMH in question; and thirdly, that the judge misdirected himself in determining whether the CPS's preparation for the PCMH was so defective that it should be described as improper conduct.
In relation to the first two of those grounds, the court has also had the benefit of submissions from Mr Nicholas Lavender QC and Mr Robert Dalling on behalf of the General Council of the Bar, which, pursuant to a suggestion made when this matter was last before the Divisional Court, has been granted leave to intervene. Neither the Crown Court nor Miss Johnson, the beneficiary of the costs order, has played an active part in the proceedings.
Before I consider the grounds advanced I should deal with a threshold issue properly raised by Mr Edis, namely the question of this court's jurisdiction to entertain the present application. Section 29(3) of the Senior Courts Act 1981, as amended, provides:
"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...
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