THE QUEEN ON THE APPLICATION OF FOX v CENTRAL CRIMINAL COURT [2002] EWHC 1430 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
[2002] EWHC 1430 (Admin)Case No NO: CO/932/02Venue Royal Courts of Justice, Strand, London WC2
Between
THE QUEEN ON THE APPLICATION OF FOXCENTRAL CRIMINAL COURT
Before
Lord Justice RoseMr Justice GibbsMR E DAVID ELLIS (Solicitor Advocate) (instructed by Ellis & Co Sols, 72 Chase Road, Southgate, London N14 4ET) appeared on behalf of the ClaimantTHE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTEDDate 28 June 2002
[1]MR JUSTICE GIBBS: The claimant applies for judicial review of an order made at the Central Criminal Court on 14th December 2001 at the conclusion of a successful appeal against his earlier conviction at the City of London Magistrates' Court. The aspect of the order of which he seeks review is the refusal to order payment of the claimant's costs from central funds under section 16 of the Prosecution of Offences Act.[2]The facts upon which the original prosecution was based can be briefly stated. There was seen by two police officers to be a queue of taxis approaching Liverpool Street station. It was thought by the officers that some or all of the taxis, including that of the claimant, were obstructing parking bays and parked vehicles. Taxis began to be moved and the police officers began to record registration numbers, that included the registration number of the claimant's hackney carriage taxi.[3]The claimant became disturbed at what the police were doing and asked why they were taking his number. One of the officers replied "Because you're plying for hire other than on a rank." The driver then responded in somewhat obscene terms. He was required to pull over, which he did. Having pulled over, he got out of his cab and began to shout at a passing cab with a view to getting the cab driver to stop and be a witness for him. The police officer said that these actions exacerbated the obstructions that were being created in the street near to the station.[4]The chronology of events which followed the charge against the claimant was:- on 24th May 2001 informations were laid at the City of London Magistrates' Court charging the claimant with two offences: first, plying for hire elsewhere than at a rank contrary to the London Hackney Carriage Act 1843 and, secondly, during his employment using insulting language contrary to another provision of that Act.[5]On 28th September 2001 the summonses were heard by the City of London Magistrates' Court; the claimant was convicted of the first main offence, fined £200 and ordered to pay £120 costs. The other summons, that relating to insulting behaviour, was dismissed.[6]Notice of appeal was given on 15th October 2001 in relation to the conviction of the first offence. On 14th December 2001 the appeal was heard at Central Criminal Court by HHJ Paget QC and two justices. A submission was made at the close of the prosecution case which was successful. The court held that there was no case to answer.[7]Unsurprisingly, following the submission being allowed, an application was made for the claimant's costs out of central funds. The basis of the application was that the appeal had been successful and the submissions made to the Central Criminal Court were the same as those made before the magistrates. The Bench retired and when they returned they asked counsel for the Crown, this court is told, whether the charge laid was the only one which they could consider. The Crown replied that it was, and the application for costs out of central funds was then refused.[8]Reasons were given for that refusal upon inquiry on the claimant's behalf. The note of the reasons reads as follows:
"AN APPLICATION WAS MADE FOR THE APPELLANT'S COSTS AND COMPENSATION THE BENCH RETIRED AND RETURNED AFTER 5 MINUTES AND STATED THAT THE APPLICATIONS WERE NOT GRANTED. HAVING REFUSED THE APPELLANT HIS COSTS AND AFTER MAKING FURTHER SUBMISSIONS THE COURT STATED 'OUR MINDS ARE MADE UP THE APPELLANT BROUGHT THE CASE UPON HIMSELF THE ACQUITTAL WAS ON A TECHNICALITY.'"

The judge's note thereafter reads as follows:

"My notebook records what I said after retirement to consider the application for costs and for compensation as follows: 'We think appellant is not blameless. We have some sympathy for the officers dealing with a difficult problem. Had the defendant been charged with obstruction he would certainly have had a case to answer. Costs and compensation refused.'"
[10]It is clear to me that the court had jurisdiction to make the order sought and that the exercise of the court's discretion to make such an order fell to be considered under the Practice Direction (Criminal Costs) 1991 1 WLR 498, as amended by the Practice Direction (Crime: Defence Costs) 1999 1 WLR 1832. The relevant part of the Practice Direction, paragraph 2.2 as amended, a reads as follows:
"Where a person is not tried for an offence for which he has been indicted or committed for trial or has been acquitted on any count in the indictment, the court may make a defendant's costs order, in his favour. Such an order should normally be made whether or not an order for costs inter partes is made, unless there are positive reasons for not doing so, as where, for example, the defendant's own conduct has brought suspicion on himself and has misled the prosecution into thinking that the case against him is stronger than it is."
[11]In my view it is understandable that Central Criminal Court took the view that the applicant was not blameless for what occurred on 18th May 2001. Whether or not he was guilty of the offences of which he was charged, or either of them, he was on the evidence of police constables Aveling and Stevens unnecessarily abusive and awkward in his manner. However, it does not necessarily follow that the Central Criminal Court was correct to award costs against him in the particular circumstances of the case. It is to be noted that the only charge with which the court was concerned was that of unlawfully plying for hire. The charge relating to insulting language had been dismissed by the justices.[12]As already mentioned, the one remaining charge was itself dismissed on appeal on the basis that the Crown's evidence did not support it. The implication of the decision to allow the appeal must be that what the applicant did before he was approached by the police simply did not justify the charge. It seems to me that nothing which he did afterwards was capable of falling within the examples cited in the Practice Direction, namely of a defendant bringing suspicion on himself or misleading the prosecution into thinking that the case against him was stronger than it was. If anything, his conduct amounted to an over-emphatic denial of guilt. Was there any other positive reason to refuse costs? The magistrates' court had acquitted him of using insulting language. It is possible that by leaping out of his cab and seeking a witness he may have caused a temporary obstruction to traffic but, for my part, I cannot see this as a proper ground upon which to deprive him of the order for costs to which he would otherwise usually be entitled.[13]In any case the point is well made that obstruction was a charge never preferred against him, and to which, had it been preferred, he may have had a defence. An assumption that he might have been guilty of it had he been charged could not properly have been made and if made could not properly justify a costs order. The word "technicality" was used as descriptive of the reason for allowing the appeal; I would not in the circumstances regard that as an accurate description of the reason, at any rate, upon the information available to this court.[14]For reasons of common sense and no doubt expense the Central Criminal Court is not represented before us, and so we are confined to examining the recorded reasons for refusing costs. These in themselves do not in my judgment carry the matter further. In the result, I take the view that there is no basis here disclosed upon which the Central Criminal Court, in the proper exercise of its discretion, could have refused the costs order. Accordingly, for my part, I would quash the order and direct the Central Criminal Court to award the claimant costs out of central funds.

LORD JUSTICE ROSE:

[15]I agree. Accordingly, the order made below will be quashed and we shall direct that an order be made awarding the appellant his costs out of central funds in the relation to the proceedings before the Crown Court. On the material before this court, there would seem to be no reason why that order should not be made in writing without any need for a hearing in open court. MR ELLIS: My Lord, can I just make two points. In my Lord's judgment mention was made of costs in the Crown Court. My Lord, could that be amended to costs in the Crown Court and Magistrates' Court. They usually do grant the costs if there is a hearing below? LORD JUSTICE ROSE: Yes, it can. MR ELLIS: Secondly, could I ask for costs for this hearing again out of central funds under the same provisions under section 60. LORD JUSTICE ROSE: Yes, in fact it was the costs in this court that I had in mind it would be inappropriate for the Crown Court to deal with, but you are quite right to say, and the order will be amended appropriately, that the Crown Court will make an order in relation to Crown Court costs and in the court below. So far as this court is concerned you may have an order for costs out of central funds. Thank you. MR ELLIS: Thank you.

Cited in 1 later judgment