R v Smith (Martin)
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS |
| Judgment Date | 04 December 1973 |
| Judgment citation (vLex) | [1973] EWCA Civ J1204-1 |
| Date | 04 December 1973 |
| Court | Court of Appeal (Civil Division) |
[1973] EWCA Civ J1204-1
In The Supreme Court of Judicature
Court of Appeal
Appeal by Messrs. Shacklooks and Ashton from order of His Honour Judge Heald made in the Crown Court sitting at Nottingham on October 23rd 1972 whereby it was ordered that Messrs. Shacklooks and Ashton-Hill should pay the costs occasioned by the adjournment of the trial.
The Master of the Rolls (Lord Denning),
Lord Judtice Megaw and
Sir Eric Sachs.
Mr. EDWIN PRINCE (instructed by Messrs. Lee Bolton and Lee, agents for Messrs. Shacklooks and Ashton-Hill of Kirkby-in-Ashfield) appeared on behalf of the Appellants, Messrs. Shacklooks and Ashton Hill.
Mr. GORDON SLYNN (instructed by the Treasury Solicitor) appeared as amicus curiae.
On Monday 23rd October 1972, a Circuit Judge was sitting in the Crown Court at Nottingham. There was only one case in his list. A man - Martin Smith - was to be tried on a charge of indecent assault. Everything was ready. Everyone was there: Counsel, Court Officers, Police and witnesses. Many jurors had been summoned and were waiting at the back of the Court. When the man was put up, his Counsel rose and asked for an adjournment. He said that a witness for the defence was so ill that she could not attend the Court. He wanted to have her evidence taken before a magistrate so that her deposition could be used at the trial. The Judge granted the application but he was very upset. He thought, from something he had been told, that the solicitors for the defence had been at fault. To add to it, they were being paid out of the legal aid fund. The Judge said to Counsel for the defence:
"Nineteen ladies and gentlemen in the back of the Court have been brought here today with nothing to do. There are various other persons who have to attend Court. There is no work for them to do, and it seems that the state of affairs has been occasioned by the remissness of your solicitors…. Have you anything to say if I order that those instructing you personally pay the costs of both the Prosecution and the Defence thrown away by the adjournment?"
Counsel replied:
"Your Honour, I have not. The only matter that perhaps I can put forward is this; that they had taken certain steps to produce certain of the evidence….", aiding that the last-minute steps were the result of his own advice".
The Judge then said:
"In this case, as in the majority of cases, the solicitors are being paid out of public funds. They have a duty to work efficiently, as they would do, doubtless, if they were paid privately. I direct that the solicitors concerned in this case pay personally the costs thrown away by this adjournment, both the costs of the Prosecution and the costs of the Defence…. Unfortunately, I cannot order them to pay the costs the jurors are entitled to. This adjournment has doubtless cost the country £200, because that is the minimum cost of running a Court such as this".
It should be noticed that the Judge, in taking this course, acted on his own initiative. Counsel for the Prosecution did not ask the Judge to make this order. It may be that Counsel would have asked. He did start murmuring something about the costs, but the Judge did not wait for an application to be made. He did it of his own head.
So the case was adjourned. Later a deposition was taken from the witnesses and was used at the trial. The accused was acquitted.
The solicitors wished, however, to appeal from the order made against them personally to pay the costs. They went to a different Counsel and made inquiries about the procedure. They prepared a notice of appeal and served it on the Treasury Solicitor, but he refused to accept it. The Treasury solicitor suggested that they should apply for mandamus and certiorari. They, were advised by Counsel, however, that this was not available. So on 15th January 1973, they applied to this Court. We directed that the Notice of Appeal be served on the appropriate Prosecuting Authority and the appropriate legal aid authority. This was done.
On hearing of the appeal the solicitors were represented by Mr. Prince of Counsel, who, of course, was not the Counsel who had represented the accused man at the trial. The Prosecuting Authority did not appear to oppose the appeal. Mr. Slynn appeared for the Home Office as the appropriate legal aid authority. They also did not oppose the appeal. But Mr. Prince and Mr. Slynn drew our attention to several difficulties as to the jurisdiction both of the Crown Court and of this Court. These proved to be of such importance that we took time to consider our decision.
THE JURISDICTION OF THE CROWN COURT
Mr. Slynn was good enough to take us through the history of the jurisdiction of the Courts over solicitors. It does appear that each of the superior Courts of record exercised jurisdiction over the attorneys on the roll of its Court and that the Master of the Rolls, by keeping the roll of solicitors, exercised jurisdiction over solicitors generally. But the inferior Courts, such as County Courts, had no such jurisdiction. Nowadays under the Judicature Acts 1873 and 1925, the old superior Courts of record are combined into one High Court. There is a Supreme Court which consists of the High Court and the Court of Appeal, Every person, who is duly admitted as a solicitor of the Supreme Court, is an officer of that Court. The Supreme Court and any Judge thereof has jurisdiction over the solicitors admitted to practise therein. He has jurisdiction to the same extent as the superior Courts in the old days. But this jurisdiction is never exercised so as to strike a solicitor off the roll or to suspend him. That is always left to the Disciplinary Committee of the Law Society. The principal cases in which jurisdiction is now exercised is the power to order a solicitor to honour an undertaking which he has given, see Silver and Drake v. Baines (1971) 1 Q. B. 396, or to pay the costs personally if he has been guilty of serious neglect of duty, see Myers v. Elman (1940) A. C. 282, Edwards v. Edwards (1958) P. 238.
What is the position of the Crown Court? It is a Court newly constituted under the Courts Act, 1971. It takes the place of the old Courts of Assize and of Quarter Sessions. The Judges of the Crown Court are High Court Judges, Circuit Judges, Recorders, with the help occasionally of magistrates. The Courts Act 1971, says nothing expressly of the jurisdiction of the Crown Court over solicitors.But the Act says in terms that the Crown Court is part of the Supreme Court, sec Section 1(1), and that it is a superior Court of Record, see section 4(1). It follows that every solicitor, who is admitted to practise in the Supreme Court, is automatically an officer of the Crown Court is well as of the Court of Appeal and of the High Court: and it being a superior Court of record, he is necessarily subject to the jurisdiction of the Court.
The Crown Court has, therefore, as full and ample a jurisdiction over solicitors as the High Court has. It can order a solicitor personally to pay the costs occasioned by his negligence, just as the High Court can. No matter whether the Judge is a High Court Judge or a Circuit Judge, he can make such an order.
THE REMEDLES IN CASE THE COURT GOES WRONG
But if the Crown Court makes a mistake and orders a solicitor to pay costs when he does not deserve it, what remedy has the solicitor got? This raises the wide question: If a person is aggrieved by an order made by the Crown Court, what is his remedy? How can it be put right?
(i) The Divisional Court
The first question is whether ho has any recourse by applying to the Divisional Court. The answer is this: Seeing that the Crown Court is a Superior Court of Record, the remedies of certiorari, mandamus and prohibition do not lie to it, see Ex. P. Fernandez (1861) 10 CB. NS; Re Central Criminal Court (1925) 2 K. B. 43. except in so far as the Statute may so provide. In section 10 of the Courts Act 1971, the Statute does provide for a Case Stated, or mandamus, prohibition or certiorari, in matters which do not relate to trial on indictment. There are many matters falling under this head, such as summary offences, licensing matters, and so forth. But no suchjurisdiction is given in respect of "matters relating to trial on indictment". They are expressly excluded. So there is no recourse to the Divisional Court for them.
(ii) The Court of Appeal
So far as trials on indictment are concerned, the only remedy, so far as I can see, is that given by the Criminal Appeals Acts to the criminal side of the Court of Appeal. These five an appeal to a "person convicted", see section 1(1) and 9 of the Criminal Appeals Act 1968. He can appeal after he is convicted. But not before. It seems that there is no appeal against an interlocutory order, see Regina v. Collins (1970) 1 Q. B. 710. This may, at first sight, seem surprising, but on consideration, there is much to be said for it. The trial Judge should have the final word on such matters as adjournments, joint or several trials, bail, particulars and so forth. The only remedy is this: In case a trial Judge should make a mistake on. an intdrlocutory matter, such as to cause injustice, the man can appeal against his conviction, and it will be taken into account at that stage: see Rex v. Grondowski (1946) K. B. 369. But, save in this way, there is no appeal to the Court of Appeal against an interlocutory order.
Nor is there any appeal to the Court of Appeal against any other order, judgment or decision of the Crown Court which relates to trial on indictment, sec section 10 of the 1971 Act. Take a case where an accused man, who was acquitted, applied for costs. The Circuit Judge refused it. The man sought to upset his decision by means of certiorari. The Divisional Court held that it was a decision relating to ...
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