R v Northallerton Magistrates Court, ex parte Dove
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE,MR JUSTICE OGNALL |
| Judgment Date | 25 May 1999 |
| Judgment citation (vLex) | [1999] EWCA Civ J0525-15 |
| Docket Number | CO/4196/98 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 May 1999 |
[1999] EWCA Civ J0525-15
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
DIVISIONAL COURT
Royal Courts of Justice
The Strand
London
The Lord Chief Justice Of England And Wales
(Lord Bingham of Cornhill)
and
Mr Justice Ognall
CO/4196/98
MISS KAREN McHUGH (instructed by Messrs Ivesons, Hull HU1 1YL) appeared on behalf of THE APPELLANT
THE RESPONDENT was unrepresented
Tuesday 25 May 1999
By this application for judicial review made with leave, Mr Christopher John Dove seeks to quash an order of the Northallerton Magistrates' Court made on 31 July 1998 that he pay £4,642.86 costs to the Ministry of Agriculture, Fisheries and Food. The order arose out of a summons issued by the Ministry against the applicant on 13 March 1998 by which it was alleged that for the purpose of obtaining the whole or part of a compensatory payment, namely an arable area payment, he knowingly or recklessly made a statement which was false or misleading in a material respect, contrary to regulation 19(3) of the Arable Area Payments Regulations 1996 (SI 1996 No 3142) and section 2(2) of the European Communities Act 1972.
The matter came before the court on 31 July 1998, when the applicant was represented by counsel and contested the charge. The justices convicted and ordered that the applicant pay a fine of £1,000 and costs to the Ministry in the sum already mentioned.
The applicant does not challenge his conviction; nor does he seek in any way to challenge the fine imposed upon him. His challenge is limited to the order for costs. The justices were given a breakdown of the Ministry's costs, divided into investigatory, administrative and legal costs incurred by the Ministry, and it is not suggested that those costs were unreasonable or inordinate. Nor is it challenged that they were incurred. The applicant's challenge is therefore not to the quantum of those costs but to the order that he should pay them.
Regulation 19(3) of the Arable Area Payments Regulations 1996, under which he was prosecuted, provides:
"If any person for the purpose of obtaining the whole or any part of a compensatory payment or in purported compliance with any requirement directed at him under regulation 17(4) knowingly or recklessly furnishes information which is false or misleading in a material respect he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale."
Section 37 of the Criminal Justice Act 1982 imposes a limit of £5,000 on the fine which may be imposed.
The facts relevant to this application are to be found in three affidavits. The first is sworn by the applicant, who in paragraph 6 deposes:
"In considering the question of sentence and costs the Magistrates were advised by Counsel representing me that my gross earnings were approximately £15,000.00 per annum with a zero net surplus income. That simply means that I spend all that I earn and have no surplus left over."
The applicant then goes on to depose to various facts which, as I understand, were not before the justices:
"7. In fact I am a director of a limited company called Woodpage Limited and the last audited accounts for that company as at August 1997 showed a £440.00 loss. Jointly with my wife I drew from the company £350.00 per week which actually produces a slightly higher figure of £18,500 per annum. However that is a joint figure and that sum is used to support myself, my wife and our four children."
The applicant then goes on in his affidavit to make submissions which include the following:
"However, I am advised and verily believe that the level of costs, in the sum of £4,692.86, imposed upon me was excessive in all the circumstances for the following reasons:
a. The costs represented a considerable proportion of my gross income and was therefore excessive and unfair.
b. The costs Order was not in step with the level of the fine.
c. The costs Order was excessive in relation to sentence generally.
I am further advised that the Order for costs was contrary to natural justice being an Order incapable of appeal to the Crown Court and finally that no reasonable bench of Magistrates could have reached this decision without having misdirected themselves."
We have the advantage of a very helpful affidavit sworn by the experienced Justice of the Peace who was acting as Chairman of the Bench on this occasion. He has deposed in these terms:
"5. Counsel for the applicant told us the applicant had a gross annual income of £15,000 but gave no details, orally or written, of his weekly/monthly living expenses.
6. We retired to consider the appropriate penalty to impose for this very serious offence which involved the applicant standing to benefit to the extent of £3,500 of public money.
7. We took into account his professional position, namely a master builder of many years standing, a confident and competent businessman. He was not naive as he would have us believe. He had vast experience of business dealings and documentation which, we considered, put him above the status of 'an ordinary prudent individual."
In paragraph 8 the Chairman gives his reasons for the conclusion of the Bench that the costs sought by the Ministry were reasonable, and continues in paragraph 9:
"Taking all these factors into account and bearing in mind that generally costs follow the event, we found no grounds not to make an order against the applicant and place the costs of the prosecution on the Ministry. We tempered the amount of the proposed fine somewhat in the light of the financial burden imposed by the costs. We considered the total sum was a right and proper one in the circumstances and one which was within the ability of the applicant to pay, over a period of time, given the seriousness of the offence involving public money and the total amount of time spent on the case by MAFF."
Thirdly, we have an affidavit sworn by Miss Stelling, the court clerk who was advising the Bench on this occasion. She deposes in paragraphs 8 and 9 of her affidavit as follows:
"8. To the best of my recollection, Counsel for the applicant made no comment on the claim. In general mitigation he said the applicant had an annual gross income of £15,000. (I have a note to this effect). He gave no details at all of the applicant's living expenses and did not produce a statement of means.
9. In the course of his evidence in respect of the trial, the applicant said that he had owned the farm since 1989, that it was a hobby, and he was in fact a master builder. I have a note to this effect."
The relevant statutory provision governing the award of costs in the magistrates' court is section 18 of the Prosecution of Offences Act 1985 which so far as relevant provides:
"(1) Where --
(a) any person is convicted of an offence before a magistrates' court;
….
the court may make such order as to the costs to be paid by the accused to the prosecutor as it considers just and reasonable.
….
(3) The amount to be paid by the accused in pursuance of an order under this section shall be specified in the order.
(4) Where any person is convicted of an offence before a magistrates' court and --
(a) under the conviction the court orders payment of any sum as a fine, penalty, forfeiture or compensation; and
(b) the sum so ordered to be paid does not exceed £5;
the court shall not order the accused to pay any costs under this section unless in the particular circumstances of the case it considers it right to do so.
(5) Where any person under the age of eighteen is convicted of an offence before a magistrates' court, the amount of any costs ordered to be paid by the accused under this section shall not exceed the amount of any fine imposed on him."
That statutory provision has been supplemented by a Practice Direction (Crime: Costs) given on 3 May 1991, and reported at [1991] 1 WLR 498 and (1991) 93 Cr App R 89. Relevant for present purposes are parts of Part VI:
"6.1 A magistrates' court …. may make an order for costs against a person convicted of an offence before it or in dealing with him in respect of certain orders as to sentence specified in regulation 14(3)…."
In paragraph 6.2 the effect...
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