The Queen (on the Application of Ayodeji Holloway) v Harrow Crown Court
| Jurisdiction | England & Wales |
| Judge | Lord Justice Males,Mr Justice Edis |
| Judgment Date | 05 July 2019 |
| Neutral Citation | [2019] EWHC 1731 (Admin) |
| Docket Number | Case No: CO/4927/2018 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 05 July 2019 |
[2019] EWHC 1731 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Males
Mr Justice Edis
Case No: CO/4927/2018
and
Helen Malcolm QC (instructed by Brett Wilson LLP) for the Claimant
William Martin (instructed by Guillaumes LLP) for the Interested Parties
The Defendant took no part in the proceedings
Hearing date: 2 July 2019
Approved Judgment
Introduction
This is a claim for judicial review in which the claimant, Ayodeji Holloway, challenges an order made in the Crown Court which required him to pay the costs incurred by the Interested Parties in a private criminal prosecution for blackmail brought against them by the claimant.
The order was made by Deputy Circuit Judge Fraser Morrison, sitting at Harrow Crown Court, pursuant to regulation 3 of the Costs in Criminal Cases (General) Regulations 1986 ( SI 1986/1335). Those regulations enable a court to order a party to criminal proceedings to pay the costs of another party to the proceedings if satisfied that the costs were incurred as a result of an unnecessary or improper act or omission.
The blackmail and conspiracy to blackmail alleged against the Interested Parties was the making of an unwarranted demand for £76,325.39 in cash as a condition of proceeding with a sale of their property to the claimant, failing which the claimant and his family would be required to vacate the property, in which they were already living, and monies already paid by the claimant towards the purchase price would be retained until the property had been sold to another buyer.
The prosecution was taken over by the Crown Prosecution Service at an early stage and was discontinued. The Interested Parties contended that it should never have been brought at all and, moreover, that the claimant had failed to disclose important documents undermining the prosecution case. The judge found that the evidence never provided a realistic prospect of conviction as the Interested Parties had merely driven a hard bargain at a time when no binding contract had been concluded, parties being free to walk away from negotiations at any time up to exchange of contracts. As a result he concluded that the commencement and continuation of the prosecution constituted an improper act for the purpose of the Regulations and ordered the claimant to pay the Interested Parties' costs of the proceedings.
The claimant contends that this decision was wrong in law and that the judge failed to deal with the real gravamen of the prosecution case.
Legal framework
Section 19(1) of the Prosecution of Offences Act 1985 authorised the Lord Chancellor to make regulations as follows:
“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.”
Those regulations were made by regulation 3 of the Costs in Criminal Cases (General) Regulations 1986.
The procedure to be followed when such an order is sought, or where the court is considering making such an order on its own initiative, is set out in rule 45.8 of the Criminal Procedure Rules. This provides, among other things, for a written application specifying the relevant act or omission and the reasons why the act or omission meets the criteria for making an order. That procedure was followed in this case.
The Criminal Costs Practice Direction (2015) as amended recommends, at para 4.1.1, a three stage approach:
“The court may find it helpful to adopt a three stage approach. (a) Has there been an unnecessary or improper act or omission? (b) As a result have any costs been incurred by another party? (c) If the answers to (a) and (b) are ‘yes’, should the court exercise its discretion to order the party responsible to meet the whole or any part of the relevant costs, and if so what specific sum is involved?”
This serves to draw attention to the fact that, even if costs have been incurred as a result of an improper act or omission, the making of an order remains a matter of discretion.
There is no right of appeal against the making of such an order, which can only be challenged by an application for judicial review: R v P [2011] EWCA Crim 1130 at [12].
“Improper”
The meaning of “improper” in the context of section 19 and Regulation 3 has been a matter of some controversy in the case law, but was not in dispute before us. It was considered by this court in DPP v Denning [1991] 2 QB 533. Nolan LJ said at p.541:
“… the word ‘improper’ in this context does not necessarily connote some grave impropriety. Used, as it is, in conjunction with the word ‘unnecessary,’ it is in my judgment intended to cover an act or omission which would not have occurred if the party concerned had conducted his case properly. …”
Denning and later cases were reviewed by Hickinbottom J in Serious Fraud Office v Evans [2015] EWHC 263 (QB), [2015] 1 WLR 3595. He summarised the position at [148] as follows:
“148. It would be helpful to summarise the propositions I have derived from the statutory provisions, the authorities and principle, so far as section 19 applications for costs against public prosecutors are concerned.
i) When any court is considering a potential costs order against any party to criminal proceedings, it must clearly identify the statutory power(s) upon which it is proposing to act; and thus the relevant threshold and discretionary criteria that will be applicable.
ii) In respect of an application under section 19 of the 1985 act, a threshold criterion is that there must be “an unnecessary or improper act or omission” on the part of the paying party, i.e. an act or omission which would not have occurred if the party concerned had conducted his case properly or which could otherwise have been properly avoided.
iii) In assessing whether this test is met, the court must take a broad view as to whether, in all the circumstances, the acts of the relevant party were unnecessary or improper.
iv) Recourse to cases concerning wasted costs applications under section 19A or its civil equivalent, such as Ridehalgh, will not be helpful. Similarly, in wasted costs applications under section 19A, recourse to cases under section 19 will not be helpful.
v) The section 19 procedure is essentially summary; and so a detailed investigation into (e.g.) the decision-making process of the prosecution will generally be inappropriate.
vi) Each case will be fact-dependent; cases in which a section 19 application against a public prosecutor will be appropriate will be very rare, and generally restricted to those exceptional cases where the prosecution has acted in bad faith or made a clear and stark error as a result of which a defendant has incurred costs for which it is appropriate to compensate him. The court will be slow to find that such an error has occurred. Generally, a decision to prosecute or similar prosecutorial decision will only be an improper act by the prosecution for these purposes if, in all the circumstances, no reasonable prosecutor could have come to that decision.”
This summary has been accepted in later cases, save that proposition (ii) should be amended to refer to an act or omission “which would not have occurred if the party concerned had conducted his case properly or which should otherwise have been properly avoided”: see R (Haigh) v City of Westminster Magistrates' Court [2017] EWHC 232 at [33] (emphasis added).
A further summary, also accepted by this court in Haigh, was provided by Coulson J in R v Cornish and Maidstone & Tunbridge Wells NHS Trust [2016] EWHC 779 (QB) at [16]:
“16. … I consider that the principles to be applied in respect of an application under s.19 and Regulation 3 are as follows:
(a) Simply because a prosecution fails, even if the defendant is found to have no case to answer, does not of itself overcome the threshold criteria of s.19 ( R v P, Evans).
(b) Improper conduct means an act or omission that would not have occurred if the party concerned had conducted his case properly ( Denning).
(c) The test is one of impropriety, not merely unreasonableness ( Counsell). The conduct of the prosecution must be starkly improper such that no great investigation into the facts or decision-making process is necessary to establish it ( Evans).
(d) Where the case fails as a matter of law, the prosecutor may be more open to a claim that the decision to charge was improper, but even then, that does not necessarily follow because ‘no one has a monopoly of legal wisdom, and many legal points are properly arguable’ ( Evans).
(e) It is important that s.19 applications are not used to attack decisions to prosecute by way of a collateral challenge, and the courts must be ever vigilant to avoid any temptation to impose too high a burden or standard on a public prosecuting authority in respect of prosecution decisions ( R v P, Evans).
(f) In consequence of the foregoing principles, the granting of a s.19 application will be ‘very rare’ and will be ‘restricted to those exceptional cases where the prosecution has made a clear and stark error as a result of which a defendant has incurred costs for which it is appropriate to compensate him’ ( Evans).”
This was the basis on which this court proceeded in Haigh. It was common ground before us that we should do so too.
In applying these principles, it is important...
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