Holme v Liverpool City Justices & Anor [2004] EWHC 3131 (Admin)

Case No CO/3977/2004

[2004] EWHC 3131 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice

Date Monday, 6th December 2004

Strand

London WC2

B E F O R E:

MR JUSTICE COLLINS

MR JUSTICE NEWMAN

Between

MARC STUART HOLMEClaimant

-v-

Between

LIVERPOOL CITY JUSTICESDefendant

THE CROWN PROSECUTION SERVICEInterested Party

Computer-Aided Transcript of the Stenograph Notes of

Smith Bernal Wordwave Limited

190 Fleet Street London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

MR M WESTGATE (instructed by E Rex Makin & Co Solicitors) appeared for CLAIMANT

for THE DEFENDANT DID NOT ATTEND AND WAS NOT REPRESENTED

MR S KNAPP (instructed by THE CROWN PROSECUTION SERVICE LIVERPOOL) appeared for DEFENDANT

J U D G M E N T

Monday, 6th December

[1]MR JUSTICE COLLINS: The claimant in this case seeks judicial review in order to quash a decision of the Liverpool Magistrates' Court to reopen, in effect, the sentencing of the claimant, he having been convicted some time before for dangerous driving.

[2]The magistrates purported to be making use of the powers conferred on them by section 142 of the Magistrates' Courts Act 1980. Since that section is of central importance in this case I should read its relevant provisions at the outset. Section 142(1) is headed "Power of magistrates' court to re-open cases to rectify mistake etc" and reads:

"A magistrates' court may vary or rescind a sentence or other order imposed or made by it when dealing with an offender if it appears to the court to be in the interests of justice to do so; and it is hereby declared that this power extends to replacing a sentence or order which for any reason appears to be invalid by another which the court has power to impose or make."

[3]The section goes on to indicate that the power cannot be exercised if there has been an appeal either to the Crown Court or to the High Court by way of case stated. It further gives power to reopen a conviction if it would be in the interests of justice that the case should be heard again. I do not need to read those parts of the section.

[4]The circumstances were these, and the chronology is of some importance. The claimant was involved in a road traffic accident on 27th November 2002. In a built-up area he was travelling at a speed which was clearly in excess of 30 miles per hour. He drove through a red light onto a pedestrian crossing and collided with, and seriously injured, a pedestrian who was crossing the road at the time.

[5]As a result he was charged with dangerous driving. He was at all times willing to plead guilty to the alternative offence of careless driving, his case being, in short, that he was distracted by a following vehicle which was driving too close and shining its lights behind him, and he did not notice, as a result, that the lights at the pedestrian crossing had turned to red. Nor did he notice the pedestrian crossing the road. He accepted that he was therefore guilty of an error which amounted to carelessness, but not of an error which constituted dangerous driving.

[6]It took some time for the trial to take place at the Magistrates' Court. First of all there was the question of whether the magistrates should accept jurisdiction. The Crown Prosecution Service sought to persuade them that they should not, and relied, at least in part, upon the serious injuries that had resulted from the accident as a reason for the magistrates declining jurisdiction. However, they decided that they would accept jurisdiction and in due course the matter was tried on 3rd December 2003 when the claimant was convicted.

[7]The magistrates said, according to the statement which we have from counsel who was then representing the claimant, that they were not considering a custodial sentence. She says that they announced that. She then proceeded to mitigate. But the bench did indicate then that they wished for what was called a specific sentence report, having indicated to the probation service that they perceived the offence to be at the lower end of the scale of dangerous driving, and that they were not considering imposing more than 50 hours' community punishment.

[8]They received a report. We have a copy of it. It is handwritten and it is not clear whether all that it contains was told to the magistrates. Nor is it clear whether the report itself, or a copy, was given to the magistrates. At the end of the handwritten notes on the report, after referring to the effect on the claimant of the accident - it had clearly affected him badly and he was showing a high degree of remorse - the author concludes thus:

"Victim out of hospital but although improving will never be 100% - head injury."

[9]In the course of the evidence the magistrates would have been aware that the victim was struck on the crossing and was tossed up into the air. Accordingly it must have been obvious to them that the likelihood was that she had suffered some, and in all probability serious, injury as a result. After all, a pedestrian hit by a car travelling in excess of 30 miles per hour is likely to be seriously injured if a collision occurs.

[10]The justices were quite clearly impressed with the mitigation that was put forward. They gave reasons for imposing what might have seemed to have been, arising out of such a serious accident, and such, on the face of it, bad driving, a lenient sentence. They said that they took into account the following mitigating circumstances:(1) the defendant's dangerous driving did not involve racing;

(2) the dangerous driving was not prolonged;

(3) it was not persistent;

(4) he had no previous like convictions;

(5) no previous driving convictions and was of good character generally;

(6) that although he had pleaded not guilty to the charge of dangerous driving he had accepted that he was the driver of the car and would have pleaded guilty to careless driving and was not seeking to exonerate himself;

(7) that he was genuinely remorseful and shocked at what he had done;

(8) that he had contacted his priest to see how the victim was doing;

(9) that his employment was in jeopardy; and

(10) that his mother had given character evidence on his behalf.

[11]The sentence was one of 50 hours' community service, disqualification for 12 months, and a requirement to take the relevant test before he should be able to drive a motor vehicle again.

[12]The reason why the matter was not then brought to a conclusion, and why there was a subsequent attempt to use section 142, resulted from a letter which was written by the victim's mother-in-law, dated 13th December 2003, and which was sent to Thomas LJ in his capacity as the senior presiding judge for England and Wales. The letter was an indication of disgust at the leniency of the sentence imposed having regard to the circumstances of the driving and the effect that it had had upon the victim and her family. The letter stated, among other things:

"I know the CPS got what they wanted and nothing can change but I feel I must put into words the absolute disgust that the family and anyone aware of the situation feels at the leniency of the sentence on this man. It was said in court that the consequences of his irresponsible driving and the total destruction of the lives of so many of both families were not to be taken into account, but I know that this is not the case and magistrates are allowed to consider such when issuing sentence. It was said he had been receiving counselling - so had some of our families, not to mention severe mental and physical torture."

[13]The concern there expressed was in the knowledge that there had been provided to the Crown Prosecution Service a statement from the victim's husband, and also from a neurologist. The former indicated the effect that the injuries to his wife had had upon him and the family. He kept a diary which covered the days after the accident over a period of some six weeks or so. The statement of the neurologist was dated 15th September and described the effect of the injuries and the continuing problems that the victim suffered as a result of the head injury. As I say, it was known that that information had been provided to the CPS but had not apparently been produced to the court.

[14]The letter to Thomas LJ was forwarded to the clerk to the justices and he made some investigations because he had not been the clerk who had been in court during the relevant hearing. He apparently conducted enquiries which included, via the CPS, enquiries of counsel who had then appeared for the prosecution. It transpired that counsel indicated that he had decided that he should not put the statements of the husband and of the consultant neurologist before the court when the time came to consider sentence because he took the view that they were not material since sentence had to be based upon the nature rather than the effects of the driving.

[15]There is authority and I am bound to say, speaking for myself, it is not entirely clear precisely how far it goes, which indicates that the effect on a victim is a material consideration. As I say, that it is, or is capable of being, a material consideration in aggravation of sentence, is, it would seem, the position. But the extent to which it should be so regarded is by no means so clear. However, it is not necessary, for the purposes of this case, to go into the details of the authorities, some relating to dangerous driving, and some relating to careless driving, where that issue has been considered by the Court of Appeal.

[16]It is, however, apparent from the guidelines that the justices at this court are given, that the question of effect in dangerous driving is a matter to be considered. In fact the guidelines are provided by the Magistrates' Association. There was one issued in September 2000, amended in June 2001, and as it happens a subsequent one, which did not in any material particulars, so far as this aspect is concerned, vary from the earlier one, issued in October 2003 for implementation on 1st January 2004. But what both of them required was that aggravating and mitigating factors should be taken into account.

[17]There is a list of examples of aggravating factors, all of which are relatively obvious, and an indication is given that the list is not exhaustive. They include, for example, racing, showing off, disregarding warnings, evidence of alcohol, excessive speed, prolonged persistent and deliberate bad driving, serious risk (I suppose serious risk of damage or of injury), and using a handheld mobile telephone. Then this is put in italics "Serious injury or damage is capable of being aggravation".

[18]For my part I find it surprising that experienced justices would not have been aware, in general, of the material guidelines relating to the offence which they were considering. Be that as it may, the justices were not given, and did not ask to be given, any details of the extent of the injuries which had been suffered by the victim.

[19]The matter was not reopened until the summer because it was not until then, some 5 months after the complaint had originally been received, that the decision was taken to attempt to reopen the matter in reliance on section 142. No excuse is put before us for that delay and the clerk to the justices recognises, very properly, that it was his responsibility. As I say, he does not seek to excuse that delay.

[20]The matter was argued before the justices on 15th July and they decided to reconsider the matter. They gave reasons. So far as is material, they said this:

"At the trial a decision was made by Counsel for both prosecution and defence not to advise the Bench [of] the extent of the injuries caused. Had we known the facts and the appropriate case law, it is our opinion that the sentence which we imposed would have exceeded that which we did impose. We now have to consider whether the difference in sentence which we would have imposed would be so great that it offends the interests of justice as perceived by the general public. "

It is our considered opinion that had we been in possession of all the facts as to the extent of injuries caused, consideration could have been given to the imposition of a custodial sentence and would have requested a PSR with all options open including custody. "The difference between the sentence imposed and that which we now recognise to have been appropriate is so great that to leave this original sentence unchanged offends the principles of natural justice. "It was clearly a decision of the Prosecuting Counsel not to inform the Bench of the extent of the injuries and this has now been pointed out [and] is accepted by all parties as wrong. "We were also not advised by the legal adviser that we should have been given information on the extent of the injuries caused to the complainant, this also was wrong. "We recognised there has been been a substantial delay in bringing this matter back to court and that this delay is not the responsibility of the defence. "Having taken all the above into account and having taken into account all that both [the prosecutor] and [the defence counsel] have said we will reopen the case for reconsideration of the sentence for which we will require a full PSR." Following that, application was made to this court and, pending this court's decision, the justices adjourned further consideration of the case.

[21]Before I consider whether there was jurisdiction to act under section 142, I should just say this. The chairman of the bench has produced a witness statement which sets out the history and seeks to explain why the bench acted as it did. He was one of the magistrates who had sat on the original hearing, which had resulted in the conviction and sentence, and also on the application to reopen. I note that he states, in paragraph 10 of that statement, that it was accepted by both parties that no detail of the extent or nature of the injuries suffered by the pedestrian had been provided to the magistrates at any time during the trial of the claimant.

[22]I am bound to say that I find that a surprising observation because although they did not perhaps know the extent of the injuries, they were clearly aware that there had been serious injuries, and they knew that there had not been, by the time of the trial, a full recovery. They knew, of course, that 12 months had passed since the incident had occurred when the injuries were sustained. It is quite clear that they not only knew that there had been injuries, but they could so easily have asked what was the extent of those injuries had they considered that that was a truly material consideration in deciding whether there should be custodial or some other means of disposal by way of sentence.

[23]It is also not without significance, if defence counsel in her recollection is correct, that they appear to have announced before hearing anything in relation to sentence, that this was not, in their view, a case for custody.

[24]It seems to me, in those circumstances, that it is difficult to see that on the facts of this case there was any mistake within the meaning of section 142. The justices had all the means of knowledge at their disposal, but for whatever reason took the view that this was not a case where that information would have led or should have led to a custodial sentence.

[25]Speaking for myself, I am bound to say that I do not think that they were wrong in that approach. It is always difficult, in cases involving serious accidents and serious injuries where there has been bad driving, for the families of victims to accept that it is not inevitable that there is a substantial custodial sentence. One bears in mind, of course, that Parliament has decided that the maximum penalty for dangerous driving is one of 2 years' imprisonment, whatever the consequences, short of death. Of course if it is causing death by dangerous driving, the maximum sentence is significantly higher and has, from time to time, been raised, largely as a result of public opinion in relation to driving offences generally.

[26]Furthermore, if it is appropriate for the powers under section 142 to be used, and if they in truth extend to cover this sort of situation where an increase in sentence is intended, then the power must be exercised very speedily. It is interesting to note that Parliament, when section 142 was first enacted, imposed a 28 day time limit upon the use of the powers. That time limit was removed in 1995 but the similar powers that the Crown Court has to reconsider sentences have to be exercised within 28 days.

[27]The point is thus made that if this had been a decision of the Crown Court, as it might well have been since dangerous driving is an either way offence, then if an over-lenient sentence, or a sentence that was regarded as over-lenient, were imposed in the Crown Court, if, that is to say, this sort of situation had arisen in the Crown Court, there would have been no power for the Crown Court to reconsider that sentence unless the matter was dealt with within the 28 day period. Of course, we have to recognise that the time limit has been removed by Parliament, but we must also recognise, in my view, that it is essential that this power, if it exists, should be used very expeditiously.

[28]Let me now turn to whether it can be used. The court has had to consider the scope of section 142 in, it would seem, very few cases. The most material case to which our attention has been drawn is R v Croydon Youth Court, ex parteDPP

[1997] 2 Cr.App.R. 411

[29]What had happened in that case was that the defendant, who was a 12 year old, had been charged, with five others, with various offences of violent disorder and assault. He was advised and represented by counsel and denied the charges. Objection was taken to the admissibility of a police interview in which he had made admissions. That evidence was admitted by the magistrates and he then unequivocally changed his plea to guilty. Subsequently the cases against his co-defendants were dismissed on the grounds that the prosecution had failed to adduce evidence to rebut the presumption of doli incapax. Not altogether surprisingly, the claimant felt aggrieved at what had happened and endeavoured to persuade the magistrates that he should be allowed to change his plea to one of not guilty. The magistrates agreed and ordered that the proceedings should be reopened and the case heard again by a different bench. The Director applied for judicial review and that application succeeded. The headnote encapsulates the relevant reasoning of the court. It suffices, I think, for me to read it. What is said there is this:

"... the justices were wrong in law and on the facts in believing that they had jurisdiction to make an order under section 142(2) of the [1980 Act]. The purpose of that section was to rectify mistakes. It was generally and correctly to be regarded as a slip rule and the power under the section could not be extended to cover situations beyond those akin to a mistake. Thus it was wholly wrong to employ section 142(2) as a method by which a defendant could obtain a rehearing in circumstances where he could not appeal to the Crown Court by reason of his unequivocal plea of guilty. Nor was it in the interests of justice. The interests of justice also included the interests of the Courts and the public that people who had pleaded guilty with the advice of counsel should continue to be regarded as guilty and that there should be certainty and an end to litigation."

[30]That case indicates that the power under section 142 is to be used in a relatively limited situation, namely one which is akin to mistake or, as the court says, the slip rule. But there is no reason, on the face of it, to limit it further. It seems to me that if a court has been misled into imposing a particular sentence, and it is discovered that it has been so misled, then the sentence may properly be said to have been imposed because of a mistake; the mistake being the failure of the court to appreciate a relevant fact. That may well give power to the court to exercise the jurisdiction conferred by section 142, but it does not indicate that that power should necessarily be used.

[31]In the course of argument it was accepted by Mr Westgate, on behalf the claimant, that where it could be shown, for example, that magistrates had been misled by something put forward in mitigation by the defence into imposing a sentence which was more lenient than that which would have been appropriate had they known the true circumstances, that would be capable of triggering a use of section 142. It would be easier to say that it was in the interests of justice to make use of that power.

[32]There is no doubt that the power can be exercised even if an increase in sentence is involved. There is authority of this court to that effect, that being a case where magistrates had decided not to disqualify because they believed special reasons to exist in circumstances where it was quickly appreciated, when the matter was put back to them, that they actually had no power in law to regard what they believed to be special circumstances as such. Accordingly, rather than have to go to this court in order to correct their mistake, since it was recognised and accepted by everyone involved, it was sensible and desirable that it should be dealt with then and there by the magistrates.

[33]That is an example, but it is a good example because it draws attention to the sort of case which is appropriate for use of the power, namely where the mistake is quickly identified and it is accepted on all sides that a mistake had been made.

[34]It seems to me that it is very important to bear in mind the principle of finality in sentencing. This is a matter which has been made clear by the House of Lords in R vSecretary of State for the Home Department, ex parte Pierson [1998] A.C. 539. At page 585, letter G, Lord Steyn said this:

"That brings me to the question whether any legal consequences flow from the characterisation of the Home Secretary's function as involving a decision on punishment. It is a general principle of the common law that a lawful sentence pronounced by a judge may not retrospectively be increased."

That is the principle. Pierson's case, I should have said, was a challenge to the Secretary of State's exercise of a power that he believed he had to increase the tariff on life sentences following convictions for murder.

[35]At 586, at letter G, Lord Steyn said this:

"For the sake of completeness I refer to the procedure for referring unduly lenient sentences to the Court of Appeal. This procedure is hedged around with safeguards: see section 36 of the Criminal Justice Act 1988. The general principle of our law is therefore that a convicted criminal is entitled to know where he stands so far as his punishment is concerned. He is entitled to legal certainty about his punishment. His rights will be enforced by the courts."

[36]In the same case, at page 591, at F, Lord Steyn continued:

"It is true that the principle of legality only has prima facie force. But in enacting section 35(2) of the Act of 1991, with its very wide power to release prisoners, Parliament left untouched the fundamental principle that a sentence lawfully passed should not retrospectively be increased."

[37]Finally Lord Hope of Craighead at 603, letter H, said this:

"The minimum standard of fairness does not permit a person to be punished twice for the same offence. Nor does it permit a person, once he has been told what his punishment is to be, to be given in substitution for it a more severe punishment."

[38]In this particular case with which we are dealing it is of some importance to note that the claimant has already served the 50 hours' community service which was imposed upon him.

[39]It seems to me that the principle of finality is an important consideration. It must be recognised that Parliament has with the greatest care and circumspection indicated when and how there should be, in relation to the Crown Court, a power to increase sentence. The answer that it gives is only if the sentence can be regarded as unduly lenient, and then only in relation to a relatively small number of indictable offences. It is a jurisdiction clearly that has to be exercised with care.

[40]Furthermore, there is, undoubtedly, an element of double jeopardy that is recognised in all cases where the Court of Appeal is persuaded that a sentence was unduly lenient. It will not then impose the full sentence that would have been appropriate. There is always a significant discount to recognise the element of double jeopardy.

[41]Mr Knapp submits that this sort of situation, on the assumption that the court was misled as to some material circumstances which would have affected their decision on sentence, is one which is capable of enabling use to be made of section 142. He very properly did not seek to argue before us that the circumstances of this case were such as on their facts to justify the use that the magistrates sought to make of section 142. But he was concerned that we should not shut the door upon the use of section 142 in a situation where magistrates had, for whatever reason, been in ignorance, and thus mistaken, about material facts which led them to a particular sentence.

[42]The reason why they were unaware of the material facts would obviously be relevant in deciding whether it was in the interests of justice that the matter should be reconsidered, but, in my judgment, it is certainly possible to envisage circumstances where the failure of the court to be aware of such material factors could properly mean that there could be resort to section 142.

[43]I am bound to say that for the reasons that I have indicated, and not least because of the importance of the principle of finality, it would only be in very rare circumstances that it would be appropriate to resort to section 142 to consider an increase in sentence, particularly if that increase, as here, brought the possibility of custody as opposed to another form of disposal.

[44]Certainly the facts of this case do not come anywhere near justifying such a use of section 142. As I have said, I am far from persuaded that the magistrates were misled in any way as to what the appropriate considerations should be, and even if they were it seems to me that this was not a case, on any view, where it should have made the difference between the sort of sentence they decided to impose, namely community service, and a different and more severe form of sentence. The fact, if it be a fact, that they might have imposed a slightly longer period of community service cannot conceivably be a proper reason to reopen the question of sentence. That would be marginal and an inappropriate use of section 142, even assuming it was proper to use it.

[45]I have unhesitatingly come to the conclusion that the decision of the magistrates in this case was wrong, that they should not have attempted to use the powers under section 142, and that therefore their decision must be quashed. Accordingly I would allow this claim.

[46]MR JUSTICE NEWMAN: I agree, but only add one or two observations on the facts which seem to me to determine this result.

[47]It is worth observing at the outset that in the letter of 13th December 2003 which was sent to, among others, Thomas LJ, the senior presiding judge for England and Wales, the writer, Mrs Jones, referred to the events in court as she understood them to be as follows:

"It was said in court that the consequences of his irresponsible driving and the total destruction of the lives of so many of both families were not to be taken into account, but I know that this is not the case and magistrates are allowed to consider such when issuing sentence. It was said he had been receiving counselling - so had some of our families, not to mention severe mental and physical torture."

[48]The initial complaint was driven by this perception of the progress of the case. Where such a perception of the way in which matters are canvassed in court arises, it can cause great hurt and create a sense of injustice. Very often in these cases more time is given to the defendant's case being advanced by the defendant's counsel to the court. That is in the nature of the procedure, but in a case like this there can be no doubt the consequences of bad driving are to be taken into account when sentencing for the driving (see R v Stokes

[1998] 1 Cr.App.R.(S) 282

). What seems to have occurred here is that, because of the view the prosecutor took as to the need of the court to have the details, and because of a conversation before mitigation began, between counsel for the defence and the prosecutor, it was agreed between them that the details would not be gone into. They were not, and thereafter mitigation continued according to the account which Mrs Jones has given in her letter.

[49]The submission of defence counsel to the court that consequences were not to be taken into account, was wrong in law. That said I am satisfied that there is nothing in the material which we have seen which indicates the magistrates accepted the submission. There is nothing in the material which we have seen which explains the reopening or revisiting of the matter under section 142 upon the basis the consequences were not relevant.

[50]The thrust of the material which we have is to the effect that the bench did know of the extent of the injuries. Their position is, putting it very shortly, that they now understand, this complaint having been made, that the prosecuting counsel decided not to tell them the detail. Thus it is, as my Lord has recited from the material, that the grounds for reopening this matter under section 142 are, so far as we can see, that the bench were not told of the extent of the injuries; alternatively, as one sees in other parts, that they were not told the full circumstances.

[51]As one can see from the letter which was written prior to the section 142 hearing giving notice of it, it is said:

"The Bench was aware from the evidence given that [the victim] had been struck at speed [and] knocked into the air..."

[52]It is apparent from the material we have seen that the bench must have learned that there were serious injuries but they did not know the detail.

[53]For my part I would be anxious that benches of magistrates, when sentencing, should not consider it necessary that they should either hear oral evidence or receive medical reports which go into great detail. But that said, a balance has to be struck in cases such as this between the injuries of the victim being expanded upon to some degree to enable a balanced view to be formed by the court, and extensive detail being canvassed in court in too great detail. It would be helpful for magistrates to say, when they do sentence in a case in which there have been injuries, something to the effect that they have taken them into account. That is what they are entitled to do. Should this course be adopted there would be no reason for misunderstanding to occur as appears in this case to have occurred.

[54]More than that, I agree entirely with my Lord that when one examines the reasons which have been given by the magistrates, in particular in the grounds of the decision reached in connection with section 142, and in particular in this passage, "We now have to consider whether the difference in sentence which we would have imposed would be so great that it offends the interests of justice as perceived by the general public," one can see that the decision is flawed.

[55]Further, as Mr Westgate submitted, the decision to reopen is flawed because they failed to pay regard to the very important principle of finality. They considered justice from one end only, namely the interests of justice as perceived by the general public in connection with a sentence which might be perceived to be lenient. In the exercise of their powers under section 142 they had to exercise their powers in the interests of justice, weighing in the balance also the principle of finality which encompasses much of what is important on these occasions.

[56]For these reasons I am entirely satisfied that the decision of the magistrates to reopen this matter must be quashed.

[57]MR WESTGATE: My Lord, I am grateful. The order I seek will be an order quashing the decision of the magistrates on 15th July. I do not think I need any further order to give effect to the decision of the court.

MR JUSTICE COLLINS: I do not think so, you do not need prohibition?

[59]MR WESTGATE: No, nothing else will happen. So far as costs are concerned, my Lords, I do have an application for costs against the interested party on the basis this is a case where the -- although in their submissions to the court today they have put matters on a somewhat broader basis and have not sought too strenuously to uphold the Magistrates' Court decision, the initial submissions they put in, and indeed their skeleton arguments, ought to uphold the decisions of the magistrates, it would have been open to them to come along and say they accept the decision in this case should go but that they want to ensure that this court does not make comments that foreclose section 142 in other cases. My Lord, failing that, I ask for an order for the defendant's costs from central funds.

MR JUSTICE COLLINS: Are you legally aided?

[61]MR WESTGATE: Yes.

[62]MR JUSTICE COLLINS: I was told the other day that the position is now that if you are legally aided you cannot get costs out of central funds?

[63]MR WESTGATE: That may be so, that is something I had not anticipated.

[64]MR JUSTICE COLLINS: I confess that I have not got chapter and verse, but that is what I was informed by counsel in a similar situation I think last week.

[65]MR WESTGATE: Well, my Lord, that first limb of my application stands -- but I simply do not know the answer, I am afraid, my Lord.

[66]MR JUSTICE COLLINS: I assume that the answer may be that central funds and Legal Aid is all within the DCA's vote and therefore there is no point in transferring it. CPS, of course, is a different vote.

[67]MR WESTGATE: Indeed, yes. Central funds fall within the LSC ring-fence but it is hard to see that they would because --

[68]MR JUSTICE COLLINS: The DCA -- there is no point in them getting costs from themselves even though they are a different part because it is all within the overall DCA vote.

[69]MR WESTGATE: Yes, although the LSC budget is a cash limited budget so one would expect there to be a certain amount of --

[70]MR JUSTICE COLLINS: Well, I follow that. Mind you, some could say that the court has an interest in giving costs to legally aided parties because otherwise it comes out of the court vote as well.

[71]MR WESTGATE: Exactly, yes. My Lord, I am afraid I cannot assist any further on that point.

[72]MR JUSTICE COLLINS: Your problem, as I see it, against the CPS is that it certainly was very helpful to us to have someone to put forward what could be put forward on the other side, and certainly what you had been submitting in your skeleton argument was capable of indicating that you were going to argue, and indeed you were arguing, that this situation could not provide jurisdiction for the use of 142. So there was an indication or a fear that we might have been persuaded to adopt a rather narrower construction of 142 than was considered appropriate.

[73]I think in those circumstances, for my part, I think it is very proper that the CPS should have attended.

[74]MR WESTGATE: My Lord, I am certainly not saying that their attendance is improper.

[75]MR JUSTICE COLLINS: As you know the practice of this court is not to award costs against magistrates who do not appear.

[76]MR WESTGATE: Yes.

[77]MR JUSTICE COLLINS: Whether that is a good thing or a bad thing is by the way. It is the practice that has been the practice for years.

[78]MR WESTGATE: I do not seek my costs against them and we certainly have not --

[79]MR JUSTICE COLLINS: I think there was difficulty in including the CVS. (Pause) The associate confirms that since you have a funding certificate you cannot get costs out of central funds. I do not know the chapter and verse but somewhere no doubt there is such chapter and verse.

[80]MR WESTGATE: The only other factor on this case, and I think if the court is not minded to make a costs order against the interested party I do not think there is anything that can be done about it, is that the claimant has been paying a contribution in the course of these proceedings.

MR JUSTICE COLLINS: Oh.

[82]MR WESTGATE: Yes, which is...

[83]MR JUSTICE NEWMAN: What about the section 142 hearing in a Magistrates' Court, what happened there? He was represented?

[84]MR WESTGATE: He was represented. That would have been, I think -- it is dealt with in a letter from the court which suggested that either the original grant of representation is extended to cover that or that --

MR JUSTICE NEWMAN: Does the contribution he has been making extend to those?

[86]MR WESTGATE: I expect it would have done, but that would have been under the Criminal Legal Aid. So I think the position then would have been the magistrates, when they exercised --

MR JUSTICE COLLINS: This is regarded as civil, is it not?

[88]MR WESTGATE: That is right.

[89]MR JUSTICE COLLINS: Slightly curiously because it may be civil in one sense, it may be criminal in another.

[90]MR WESTGATE: Certainly, if we were going to go further from here it would be a criminal causal matter.

MR JUSTICE COLLINS: It might well be.

MR JUSTICE NEWMAN: Do you know how much the contribution is?

[93]MR WESTGATE: £77 a month. I do not know how long it has been going on for.

[94]MR JUSTICE COLLINS: Certainly for my part I would have thought, if we can, we ought to make some order that means he can get those back, but I am not quite sure from whom.

[95]MR WESTGATE: £77 a month since 27th July this year.

[96]MR JUSTICE COLLINS: Yes. It is obviously not right that he should, having succeeded, and in the circumstances that we have indicated, have to pay for succeeding. I do not think that that would be right. I am not quite sure what order we can make or who we can order to recover those sums. Can you help us?

[97]MR WESTGATE: The only way would be an order against the interested party --

MR JUSTICE COLLINS: Is there no other way?

[99]MR WESTGATE: -- because this is not a case, I am quite certain, where the position were that there were any provision under which you can order the LSC to pay back a contribution.

[100]MR JUSTICE COLLINS: No, I can see that, because that is the normal rule, is it not, if you are involved in litigation. But it may be that this is an unfortunate result that follows from the reluctance of the court to -- in the old days you could make an order out of central funds, could you not?

[101]MR WESTGATE: Yes, but of course to take account of his contribution in the Legal Aid, as a factor motivating you to make an order against the interested party, that in itself --

[102]MR JUSTICE COLLINS: No, we should not. We should decide whether in principle the interested party ought to pay. If we were so to decide, your problems would fade away.

[103]MR WESTGATE: Exactly.

MR JUSTICE COLLINS: But that is not a good reason for reaching that decision.

[105]MR WESTGATE: My Lord, I have said what I have to say about costs against the interested party, there is nothing else I can say about that. If your Lordships are not with me on that --

MR JUSTICE COLLINS: We have not decided yet.

[107]MR WESTGATE: But, my Lord, just in anticipation of your Lordships not being with me on that, as I indicated, I am not aware of a power under which the court could order the contribution to be refunded, but if I find one can I notify the court and have that incorporated in the order when it is drawn up?

MR JUSTICE COLLINS: We had better see what Mr Knapp has to say about the application against him.

[109]MR KNAPP: I was hoping to adopt your Lordship's original stance for the very reason that the matter was brought about by the magistrates. We have taken the decision to come, although the magistrates have not. It is not your Lordship's practice to order costs against the Magistrates' Court, and in my submission it would be illogical to order them against the Crown Prosecution Service simply because they come along to try and assist the court.

[110]Secondly, illogicality may arise if the only reason for making an order against the party is because the applicant happens to be legally aided with a contribution, as then essentially your Lordship will be saying that the CPS would then have to meet all the Legal Aid costs simply because there is a relatively small contribution, which in my submission would be wrong in principle. (Pause). Mr Westgate, is there anything you want to add?

[111]MR WESTGATE: My Lord, no.

[112]MR JUSTICE COLLINS: Then I am afraid we are against you on making the CPS pay. We do not think that would be appropriate in the circumstances, really, for the reasons I have indicated earlier. We certainly will give you the opportunity, if you can find any way of suggesting that we have power, properly, to order some means that your client can get back his contributions, then certainly we will permit you to make such an application. Send us a letter --

[113]MR WESTGATE: My Lord, yes, I am grateful.

[114]MR JUSTICE COLLINS: -- drawing our attention to any powers. I do not think it would be appropriate, simply because your client has contributions to his Legal Aid, to make an order against the magistrates for that reason, because that would be taking account of Legal Aid which is something which we should not do. Certainly something we should not do in determining what sort of order we make.

[115]MR WESTGATE: Well, I have not sought an order against the magistrates and I do not think I can.

[116]MR JUSTICE COLLINS: I follow that. We have a lot of sympathy with your client's position, but it may be that there is nothing that we can actually do about it. It may be that someone should consider whether the present approach of no order from central funds is one that actually does justice in individual cases because, as I say, if we could have made an order out of central funds then, certainly so far as the contributions were concerned, they could have been repaid.

[117]MR WESTGATE: Exactly, and in a case where there is no contributions it makes little difference.

[118]MR JUSTICE COLLINS: It may not matter because it is one part of the same fund essentially paying another.

[119]MR WESTGATE: Yes.

MR JUSTICE COLLINS: But where there are contributions, different considerations may apply.

[121]MR WESTGATE: I am grateful for the time taken --

[122]MR JUSTICE COLLINS: But that, I think, is as far, I am afraid, as we can go. If you let us know within --

[123]MR WESTGATE: I should be able to deal with it within 24 hours.

MR JUSTICE COLLINS: We will give you 7 days to enable you to do it.

[125]MR WESTGATE: Thank you.

[126]MR JUSTICE COLLINS: In fact, as it happens, I shall be away from Wednesday for a week or so, so you probably will not get an answer until the end of next week anyway.

[127]MR WESTGATE: I will have to get it done this weekend.

MR JUSTICE NEWMAN: Assuming you find something.

[129]MR WESTGATE: I am assuming I find something.