R v Hayden
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 28 February 1975 |
| Judgment citation (vLex) | [1975] EWCA Crim J0228-1 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 4631/A/74 |
| Date | 28 February 1975 |
[1975] EWCA Crim J0228-1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Lord Chief Justice of England (Lord Widgery)
Mr. Justice Bridge
and
Mr. Justice Eveleigh
No. 4631/A/74
MR. A.M. TROUP appeared on behalf of the Appellant.
MR. M. WORSLEY and MR. S. MITCHELL appeared as amici curiae.
In this case we have been much assisted by counsel in throwing light on some small but rather obscure corners of the criminal law. The matter comes before the Court consequent upon a conviction in November last of the Appellant Joseph Anthony Hayden of possessing cannabis. He elected to go for trial by jury and was in due course tried in the Knightsbridge Crown Court before His Honour Judge Babington. The outcome of the matter following conviction was that a fine of £35 was imposed. The Appellant was ordered to pay £75 towards the prosecution costs and to make a further contribution of £75 towards his Legal Aid costs.
It was not a serious case of possession. The quantity of cannabis was quite small, and it is a perfectly fair comment that this was a case in which the Magistrates might well have exercised jurisdiction had they been permitted to do so, but the Appellant exercised his right and was tried before a jury by the Crown Court.
He now appeals by leave of the single Judge against the order for costs only. Initially he sought to disturb the order for a contribution to be made to his Legal Aid costs, but that, for reasons to which I will come in a moment, has been abandoned. Before us today the appeal relates only to the order for payment of £75 towards the costs of the prosecution.
The first point which has had to be considered, and as I say we are much indebted to counsel for their assistance in its consideration, is whether there is jurisdiction in this Court to hear an appeal against costs only.
In looking at that problem one has to begin by reference to the Criminal Appeal Act, 1968. That is because this Court is a creature of Statute and the jurisdiction of this Court consists of that power which has been given to it by Parliament and no other.
Section 50(1) of the Criminal Appeal Act, 1968 provides: "In this Act, 'sentence', in relation to an offence, includes any order made by a court when dealing with an offender (including a hospital order under Part V of the Mental Health Act 1959, with or without an order restricting discharge) and also includes a recommendation for deportation."
The essential key to the meaning of "sentence" in this context in our opinion is that it is an order, and it is an order made by a court when dealing with an offender, and we think that means when dealing with someone who has offended in respect of his offence. Those then are the features to which one must look in deciding whether a particular direction, to use a neutral word, made by a court is a sentence for the purposes of the Act.
Having looked at the definition of "sentence", one can go back and see the power given by the same Act to a person to appeal against his sentence, and this is found in section 9: "A person who has been convicted of an offence on indictment may appeal to the Court of Appeal against any sentence (not being a sentence fixed by law) passed on him for the offence, whether passed on his conviction or in subsequent proceedings."
The language of that section, looked at without reference to authority or the history of the matter, again seems to us to be tolerably simple. The right to appeal to this Court under section 9 is restricted to someone who has been convicted of an offence on indictment. The importance of those words is to distinguish a case falling within section 9 from a case falling within section 10 where the conviction was not on indictment. Section 9 is concerned with a person who has been convicted on indictment, and that includes the present Appellant.
The words "passed on him for the offence" contained in that section have given rise to some speculation because they are new. They did not appear in the corresponding provisions of the Criminal Appeal Act, 1907 which was the foundation of the Court of Criminal Appeal and not surprisingly those concerned in these matters have sought to give them a meaning. We think the meaning does not go beyond this, that the section is making it clear that conviction of an offence on indictment is the key to an appeal under section 9, and the remaining words are intended to show that all which may be appealed against is a sentence passed in respect of that offence of which he has been convicted on indictment. We see no reason to look for other difficulties in the language which, on the first reading of the section, do not really appear, and are content that so far as section 9 is concerned one should regard the key to availability of a right to appeal to this Court as being that the Appellant has received a sentence in respect of an offence for which he was convicted on indictment.
If one approaches the matter in that way, it would seem clear that the right exists to appeal against an order for payment of costs of the prosecution. The power in the trial court to award payment of...
To continue reading
Request your trial
-
R v Terence Adams
...it is an order that can only have been made after conviction. This Court, considering a different form of ancillary order in the case of R v Hayden 60 Cr App R 304, held that an order which fell into that category was to be treated as a sentence for the purpose of the 1968 Act, and accordin......
- Attorney General's Reference (No. 22 of 1992); Thomas (Steven Mark)
-
R (DPP) v Sheffield Crown Court Peter Barry Goodison and Another (Interested Parties)
...any part of the costs of the prosecution under section 4(1)(a) is appealable under the Criminal Appeal Act 1968 as part of the sentence: Reg. v. Hayden [1975] 1 W.L.R. 852. An order that the prosecutor pay the whole or any part of the costs of an acquitted defendant under section 4(1)(b) is......
-
Re Smalley
...I have suggested may provide a helpful pointer to the right answer in most cases. 36The Court of Appeal (Criminal Division) decided in Reg. v. Hayden [1975] 1 W.L.R. 852, that an order that a convicted defendant pay a sum towards the costs of the prosecution is subject to appeal under the ......