Re Sampson
| Jurisdiction | England & Wales |
| Judge | Lord Bridge of Harwich,Lord Brandon of Oakbrook,Lord Griffiths,Lord Ackner,Lord Goff of Chieveley |
| Judgment Date | 11 February 1987 |
| Judgment citation (vLex) | [1987] UKHL J0211-1 |
| Date | 11 February 1987 |
| Court | House of Lords |
[1987] UKHL J0211-1
House of Lords
Lord Bridge of Harwich
Lord Brandon of Oakbrook
Lord Griffiths
Lord Ackner
Lord Goff of Chieveley
My Lords,
On 22 March 1980 the appellant was tried in the Croydon Crown Court charged with attempted arson. He was legally aided. At the close of the case for the prosecution the judge decided that there was no sufficient evidence to support a conviction and directed the jury to acquit. He nevertheless ordered that the appellant should contribute £250 to the cost of his legal aid defence pursuant to section 32 of the Legal Aid Act 1974. No appeal lies to the Court of Appeal (Criminal Division) against such an order. The appellant sought to challenge the order by way of an application for judicial review. On 17 November 1981 the application was dismissed by the Divisional Court (Ormrod L.J. and Woolf J.) on the ground that the order was made by the Crown Court in the exercise of "its jurisdiction in matters relating to trial on indictment" and was not therefore subject to review by the High Court under section 10 of the Courts Act 1971. Although the attention of the Divisional Court was not directed to the case, their decision accorded with the earlier authority, by which they were bound, of Reg. v. Cardiff Crown Court, Ex parte Jones [1974] Q.B. 113. Nothing more would have been heard of the present case if the House had not recently voiced a doubt as to whether the Cardiff case was rightly decided: In re Smalley [1985] A.C. 622. This, it may be assumed, prompted the belated grant in the present case of the necessary certificate by the Divisional Court and of leave to appeal by your Lordships' House. The certified question is: "Whether a defendant who is acquitted on trial on indictment is entitled to seek judicial review of an order made at the trial that he should pay a contribution in respect of his own legal aid?"
Section 10(5) of the Courts Act 1971 , now re-enacted by section 29(3) of the Supreme Court Act 1981, 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 such jurisdiction to make orders of mandamus, prohibition or certiorari as the High Court possesses in relation to the jurisdiction of an inferior court."
The scope of the exclusion intended by the words "relating to trial on indictment" was considered in In re Smalley [1985] A.C. 622 in relation to an order estreating the recognizances of a surety for a defendant committed for trial on indictment who failed to surrender to his bail. The decision was that such an order was not made in the exercise of the Crown Court's jurisdiction "relating to trial on indictment." In my speech in that case, with which all my noble and learned friends who were party to the decision indicated their agreement, I expressed the opinion that, in considering whether a decision sought to be challenged by judicial review was covered by the exclusion, it was useful to ask whether it affected the conduct of a trial on indictment. I pointed out that this phrase was not a statutory definition and added, at p. 643: "If the statutory language is, as here, imprecise, it may well be impossible to prescribe in the abstract a precise test to determine on which side of the line any case should fall and, therefore, necessary to proceed … on a case by case basis." It is in any event clear, I apprehend, that certain orders made at the conclusion of a trial on indictment are excluded from judicial review as "relating to trial on indictment" not because they affect the conduct of the trial, but rather because they are themselves an integral part of the trial process. This is obviously true of the verdict and sentence. It is equally true, according to the provisional view I expressed in In re Smalley, of certain orders for the payment of costs made under the Costs in Criminal Cases Act 1973. The doubt I expressed as to the correctness of the decision in the Cardiff case [1974] Q.B. 113 that a defendant tried on indictment cannot challenge by judicial review a legal aid contribution order made by the Crown Court arose from the consideration both that this, if correct, precludes any challenge to such an order and also that the statutory criteria governing the making of such an order are not the same as those which affect other decisions relating to the payment of costs of a criminal trial either out of central funds or inter partes. It is clear that a legal aid contribution order made by the Crown Court, if it cannot be questioned by a judicial review, is not open to any challenge. But whether there is a relevant distinction, for present purposes, between such an order and other orders relating to the costs of a trial on indictment is the issue presently calling for examination, which I can now undertake with the benefit of the full argument we have heard from counsel for the appellant and from Mr. John Laws as amicus curiae.
A convenient starting point is a consideration of the orders which can be made under sections 3 and 4 of the Costs in Criminal Cases Act 1973. The relevant provisions are as follows:
"3(1) Subject to the provisions of this section, where a person is prosecuted or tried on indictment before the Crown Court, the court may — ( a) order the payment out of central funds of the costs of the prosecution; (b) if the accused is acquitted, order the payment out of central funds of the costs of the defence. …
4(1) Where a person is prosecuted or tried on indictment before the Crown Court, the court may — (a) if the accused is convicted, order him to pay the whole or any part of the costs incurred in or about the prosecution and conviction, including any proceedings before the examining justices; ( b) if the accused is acquitted, order the prosecutor to pay the whole or any part of the costs incurred in or about the defence including any proceedings before the examining justices."
An order that a convicted defendant pay the whole or 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...
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