Wright v Director of Public Prosecutions [2005] EWHC 1211 (Admin)

Case No CO/6277/2004

[2005] EWHC 1211 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice

Date Wednesday, 25th May 2005

Strand

London WC2

B E F O R E:

LORD JUSTICE BROOKE

(Vice President of the Court of Appeal, Civil Division)

MR JUSTICE MITTING

Between

ANDREW JAMES WRIGHTClaimant

- v -

Between

DIRECTOR OF PUBLIC PROSECUTIONSDefendant

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MR NIGEL LEY (instructed by Messrs Byrne Frodsham & Co) appeared for CLAIMANT

MR ALAN BLAKE (instructed by the Crown Prosecution Service, Buckinghamshire) appeared for DEFENDANT

J U D G M E N T

[1]MR JUSTICE MITTING: At 5.35 pm on 2nd April 2002 the appellant was stopped by a police officer while driving his Porsche motor car in the High Street, Sherrington, Milton Keynes. A roadside breath test indicated that the proportion of alcohol in his breath exceeded the prescribed limit. He was lawfully arrested and taken to Milton Keynes police station. There he was required by a police officer to provide two specimens of breath for analysis by means of an EC/IR intoximeter. Analysis by the device produced readings of 45 and 43 micrograms of alcohol per one hundred millilitres of breath. Accordingly, the police officer offered the appellant the opportunity of providing a specimen of blood for a laboratory test, which he did at 6.30 pm. On testing, the specimen was found to contain not less than 94 milligrams of alcohol per 100 millilitres of blood.

[2]The appellant was charged with driving with excess alcohol, contrary to section 5(1)(a) of the Road Traffic Act 1988 and convicted by Milton Keynes magistrates. He appealed to Aylesbury Crown Court, where his appeal was heard by Judge Connor and two lay justices. His appeal was dismissed on 1st December 2003.

[3]The appellant's defence was purely technical. He contended that the EC/IR intoximeter, by means of which he provided two specimens of breath at the police station, was not a device approved by the Secretary of State. It was not disputed that a device under that name had been approved by the Secretary of State, but it was contended that changes in the design since approval meant that it was no longer an approved device.

[4]Consequently, there have been no "valid" analyses of the two specimens, and the appellant's option to provide a specimen of blood for a laboratory test, on the basis of which he was convicted of the offence, did not "come into play". Hence, the appellant wished to adduce evidence to demonstrate that the EC/IR intoximeter device was not of a type approved by the Secretary of State. The Crown Court refused to admit such evidence, holding that it was irrelevant, and upheld the appellant's conviction without considering whether or not it was. The appellant appeals against that ruling and his conviction by case stated.

[5]The relevant statutory provisions are to be found in sections 7 and 8 of the 1988 Act, and are as follows: "(1) In the course of an investigation into whether a person has committed an offence under section ... 5 of this Act a constable may, subject to the following provisions of this section and section 9 of this Act, require him -- "(a) to provide two specimens of breath for analysis by means of a device of a type approved by the Secretary of State, or "(b) to provide a specimen of blood or urine for a laboratory test. "(2) A requirement under this section to provide specimens of breath can only be made at a police station. "(3) A requirement under this section to provide a specimen of blood or urine can only be made at a police station or at a hospital; and it cannot be made at a police station unless --

[6]"(a) ... "(b) at the time the requirement is made a device or a reliable device of the type mentioned in subsection (1)(a) above is not available at the police station or it is then for any other reason not practicable to use such a device there, or "[(bb) a device of the type mentioned in subsection 1(a) above has been used at the police station but the constable who required the specimens of breath has reasonable cause to believe that the device has not produced a reliable indication of the proportion of alcohol in the breath of person concerned ...]"

[7]Subsection (7) provides:

"A constable must, on requiring any person to provide a specimen in pursuance of this section, warn him that a failure to provide it may render him liable to prosecution."

[8]Section 8 provides:

"(1) Subject to subsection (2) below, of any two specimens of breath provided by any person in pursuance of section 7 of this Act that with the lower proportion of alcohol in the breath shall be used and the other shall be disregarded. "(2) If the specimen with the lower proportion of alcohol contains no more than 50 microgrammes of alcohol in 100 millilitres of breath, the person who provided it may claim that it should be replaced by such specimen as may be required under section 7(4) of this Act and, if he then provides such a specimen, neither specimen of breath shall be used."

[9]The Crown Court found the following facts, after reciting his arrest in Sherrington:

"4(b) At the said station, the appellant was lawfully required to provide 2 specimens of breath for analysis, which he did. "(c) The officer requiring those specimens reasonably believed that the device used was of a type approved by the Secretary of State. "(d) The lower of the two analyses indicated a proportion of alcohol in the appellant's breath that did not exceed 50 microgrammes of alcohol in 100 millilitres of breath. "(e) The appellant exercised his option under section 8(2) of the Road Traffic Act 1988 and provided a specimen of blood. "(f) The alcohol level in the aforementioned specimen of blood exceeded the prescribed limit."

[10]Its conclusion on the submissions made to it was as follows:

"7) We were of the opinion that -- "(a) The references to section 7 of the Road Traffic Act 1988 in section 8 of that Act would not exclude the operation of the latter section in a case in which, unknown to the operating officer, modifications had been made to the breath testing device to an extent that meant that the device fell outside the scope of the approval of the Secretary of State. "(b) The appellant had not been required to give a sample of blood but had claimed the right to do so provided for by section 8(2) of the Road Traffic Act 1988. He having claimed that right and provided a sample of breath in pursuance thereof, we were required to disregard the evidence of the proportion of alcohol in the appellant's breath provided by the breath-testing device. "(c) The procedure adopted gave rise to no unfairness to the appellant, who had not sought to adduce any evidence to suggest that the amount of alcohol in his metabolism had not exceeded the prescribed limit. "(d) We, therefore, agreed with the first submission made for the respondent that approval of the breath-testing device was irrelevant and ruled that evidence intended to show that, by reason of modification, the device in question had ceased to be of an approved type would be inadmissible."

[11]The question posed was:

"Were we correct in refusing to allow the appellant to adduce evidence intended to show that the breath testing device used in this case was not an approved device?"

[12]I have no doubt that the answer to that question is yes. Free of authority, I would hold that the statutory scheme makes it immaterial whether the device is of a type approved by the Secretary of State or not, when the process results in the provision of a specimen of blood for laboratory testing. Evidence of the proportion of alcohol in a specimen of blood lawfully obtained is admissible under section 15(2) of the Road Traffic Offenders Act 1988. If the specimen was provided at the appellant's election, after one of the specimens of breath provided by means of a device approved by the Secretary of State contained no more than 50 microgrammes of alcohol in 100 millilitres of breath, the specimen of blood was lawfully obtained under section 8(2).

[13]If the device was not approved, or not reliable, the specimen of blood would lawfully be required under section 7(3)(b) or (bb). The fact that the officer requiring a specimen did not warn him that a failure to provide it may render him liable to prosecution would only be material if he failed to provide it and was prosecuted under section 7(6) for failing without reasonable excuse to do so. If he did provide it, a lack of warning would be immaterial.

[14]I can discern no rational purpose in legislating for an intermediate category for the provision of an evidentially useless specimen of blood, that is to say one created when, unbeknown to the police officer, the breath analysis device was not of a type approved by the Secretary of State; so he omitted to follow the procedure required by sections 7(3) and (7), but instead allowed an ineffective option to be selected by the suspect under section 8(2).

[15]That answer appears, however, to be precluded by the approval of the House of Lords in Fox v Chief Constable of Gwent

[1986] 1 AC 281

of the decision and reasoning of this court in Howard v Hallett [1984] RTR 353, and by the observation of Lord Hutton in Director of Public Prosecutions v Jackson

[1999] 1 AC 406

at page 425, that the omission of the warning required by section 7(7) "in a section 7(3) case" should lead to an acquittal.

[16]Such a conclusion leads to the frustration of the parliamentary purpose identified by Lord Bridge in Fox to eliminate "meritless technical defences". Nevertheless, for present purposes, I am prepared to assume that authority prevents this answer being given to the question posed by the Crown Court.

[17]A simple and direct answer is provided by their unchallenged finding at paragraph 4(a) of the case: that the appellant was lawfully required to provide the two specimens of breath. The requirement is lawful if it is made in accordance with section 7(1)(a), in other words by means of a device of a type approved by the Secretary of State. It is not disputed that a device known by the trade name EC/IR intoximeter was approved by the Secretary of State, hence its use by the police officer at the police station.

[18]The appellant's argument would have been that modifications to the device made since approval was given meant that it was no longer of the type approved. Yet once it is conceded that the requirement was lawful, there can be no ground for contending that the device was not of a type approved by the Secretary of State. There is no room for another anomalous exception: a lawful requirement to provide a specimen on an unapproved device.

[19]The logic of this conclusion escaped the appellant at the Crown Court hearing, and Mr Ley in his skeleton argument, which accepted the Crown Court's finding as to lawfulness. Nevertheless, for present purposes, I am content to assume that the concession was an oversight and that the appellant's true contention is that the requirement was unlawful because the device was unapproved.

[20]The third and final ground upon which this appeal must fail is that the point has already been decided in circumstances identical in principle twice against the appellant by previous decisions of this court: Prince v The Director of Public Prosecutions

[1996] CLR 343

, and Branagan v The Director of Public Prosecutions [2000] RTR 235. In each case the appellant was convicted of an offence contrary to section 5 on the basis of evidence provided by a laboratory test of a blood sample provided under section 8(2). In each case it was contended that the prosecution were required to prove that the intoximeter was working properly before evidence of the test of the blood specimen was admissible.

[21]Having cited with approval Professor Birch's commentary on Prince, Simon Brown LJ in Branagan observed at page 241, F to G:

"Assuming that the machine is working properly, clearly it is appropriate in a borderline case to give the defendant the opportunity to provide instead a specimen of blood. After all, if he does not provide it he will fall to be convicted on his breath specimen. Assume, however, that the machine is not working properly, then in any event it is open to the police officer to require the blood specimen. I can see no possible reason why the prosecution should have to prove one way or the other whether the machine was actually working properly. The defendant is, if anything, better off if it is assumed to be working: the option then becomes his."

[22]And again at page 242, B to C:

"The plain fact is that the questions formulated raise but a single issue, that which I earlier identified: does the prosecution have to prove that the machine was actually working accurately when a driver is put to his election under section 8(2)? In my judgment, the plain answer to that is 'No' and in the result this appeal falls to be dismissed."

[23]In my opinion, and for identical reasons, there is no requirement on the prosecution to prove that the device remained of a type approved by the Secretary of State and was not so modified as to cease to be of a type so approved before convicting a driver on evidence provided by the test of a blood specimen provided voluntarily by him under section 8(2). No rational explanation was advanced to require any different interpretation. There is no distinction drawn in section 7(3) between circumstances in which there is no device, no approved device, or no reliable device available to the police officer. I can see no reason for drawing any such distinction in section 8(2).

[24]I can discern no basis for drawing that distinction, not least because section 8(2) provides protection for a suspect. Why should it be available in the case where a device's reliability is questioned, but not in the case of a device whose type approval is questioned? It is to be noted that there is no question here of convicting a man upon evidence provided by him by way of compulsory self-incrimination.

[25]The observations of Watkins LJ in Murray v Director of Public Prosecutions [1993] RTR 209 are therefore not in point. They were:

"It is, therefore, in our judgment, not surprising that a strict and compulsory code is laid down as a set of pre-conditions which must be fulfilled before any specimen produced by the defendant, which may condemn him at the hearing of the charge against him, can be adduced in evidence: no matter that there may be some instances where breach of the code occasions no discernible prejudice."

[26]In a case such as this, where there is no question of compulsory self-incrimination, such considerations do not avail the appellant.

[27]It is unnecessary for present purposes to decide if the reasonable belief of the constable that the device was of a type approved suffices, following what can loosely be termed analogous reasoning in Thompson v Thynne [1996] RTR 293.

[28]In the event, for the reasons which I have identified, in my opinion the Crown Court was right to conclude that the evidence was irrelevant to the issue which it had to decide and that it was right to refuse to admit it.

LORD JUSTICE BROOKE: I agree. The answer to the question posed by the Crown Court is therefore 'yes', and the appeal is dismissed.

[30]MR BLAKE: My Lords, at the Crown Court, the Crown Court judge dismissed the appeal, and left the sentence as it was. I think, my Lords, in the light of what has occurred today, the Crown would apply for costs as a result of today's hearing.

[31]MR LEY: Well, does he have a schedule of costs? If he has not, I would submit that he should not be allowed it. Can I hand in a case called Causey v DPP.

LORD JUSTICE BROOKE: You are complying with practice directions for once, are you, Mr Ley?

[33]MR LEY: Yes, I normally -- once I have learned my errors, my Lord --

LORD JUSTICE BROOKE: You are a great believer in technicalities when it comes to arguments, you are a great believer in technicalities when it comes to costs, but in terms of complying with the reasonable wishes of the court in practice directions, that is a whole other technicality which can be ignored. It is a little bit inconsistent.

[35]MR LEY: My Lord, if you can turn to page 10, my Lord. It starts off half way down:

"MR VOLLENWEIDER: Your Lordships, in the circumstances can I ask for costs? "

LORD JUSTICE THOMAS:

What are they? "MR VOLLENWEIDER: There has not been a schedule, but I am reliably informed they are in the region of £2,000. "LORD JUSTICE THOMAS: Why not? "MR VOLLENWEIDER: I do apologise, I will take instructions on that. "LORD JUSTICE THOMAS: Could you. The whole point of the procedure of this court is to avoid these disputes. If you cannot be bothered to produce the schedule, why should we give you your costs? "MR VOLLENWEIDER: It is not a question of not being bothered, my Lord -- "LORD JUSTICE THOMAS: Yes, it is. You are responsible for the provision of the relevant documents to this court. If people will not learn, there is one way to make them remember. What is the answer? "MR VOLLENWEIDER: Well, my Lord, in principle I would be asking that your Lordships grant the application for costs, subject, of course, to a proper schedule being drawn up. "LORD JUSTICE THOMAS: You know you are meant to provide that ahead of time, we deal with it quickly, it saves a lot of bother, we can take a view of the case, and it is clear. If people do not follow the rules of this court the only way actually to make them remember them for the future is to apply them. If there is no schedule, no costs."

[36]I will leave out my views my Lord:

"MR VOLLENWEIDER: My Lord, it is sometimes difficult for counsel to give an estimate of -- "

LORD JUSTICE THOMAS: Well, you have a solicitor behind you. This is a case that was estimated for half a day. It was a pretty good estimate, as there are three minutes to go. Therefore, nothing could have taken you by surprise and it really is important people remember to comply with the rules of this court. "MR VOLLENWEIDER: I concur with your Lordship in that extent, save to say that, although we knew it was listed for half a day, it was listed for merely, I think, two days in the Crown Court and ended up running to five. "LORD JUSTICE THOMAS: We are obviously not disturbing the order below, it is the order in this court. The rules are clear. "MR VOLLENWEIDER: But you appreciate where I am coming from, my Lord, and clearly it is difficult sometimes to estimate costs when it is clear from the court below -- "LORD JUSTICE THOMAS: You do not seriously think that this court would have allowed this case to go on for more than a day. It could not possibly be right. "MR JUSTICE FULFORD: This took five days in the court below? "MR VOLLENWEIDER: Four or five days, yes. "LORD JUSTICE THOMAS: The court below has no doubt dealt with that, and no doubt a very heavy bill of costs was imposed. In this court our rules are clear, you did not follow them, no order as to costs. "MR VOLLENWEIDER: So be it, my Lord."

LORD JUSTICE BROOKE: Yes.

[38]MR LEY: And I would ask you to follow the principle of Thomas LJ.

LORD JUSTICE BROOKE: This is a matter which we may take into account under paragraph 13.6 of the practice direction, is it not?

[40]MR LEY: You can take it into account, my Lord, yes.

LORD JUSTICE BROOKE: You have considered section 13 of the costs practice direction?

[42]MR LEY: Yes, but I would say, my Lord, that you obviously have a discretion in the matter.

LORD JUSTICE BROOKE: In all these cases we have discretion. It is a factor in any particular case in which this court has exercised its discretion in a particular way. It is, of course, interesting, but it is not binding.

[44]MR LEY: If you were to award costs against my client I would ask for costs of taxation for my clients in any event --

LORD JUSTICE BROOKE: That is a matter that can be taken into account.

[46]MR LEY: But I would submit, my Lord, that Thomas LJ is sending a clear message to a Crown Prosecution Service, and your Lordships might consider it --

LORD JUSTICE BROOKE: Well, I delivered a clear message to everyone who practised in this court a year ago that the court expected the requirements of the practice direction to be observed, and a year later, although you have a massive practice in this court, you are not taking a blind bit of notice of it.

[48]MR LEY: I can apologise, my Lord, but I am merely asking that, to bring it home, the sanction in this case --

LORD JUSTICE BROOKE: Well, how do we bring it home to you to comply with the practice directions?

[50]MR LEY: I will make certain in future, my Lord that they will all be --

LORD JUSTICE BROOKE: Perhaps Mr Blake's client will be a bit better. Mr Blake, what do you say about all this? Why do you not have a schedule of costs?

[52]MR BLAKE: My Lord, I can do no more than to concede that a schedule of costs should have been prepared in accordance with the practice directions.

LORD JUSTICE BROOKE: Did this decision of 11th November 2004 not send a chill running right up and down the country in relation to the Crown Prosecution Service not being able to recover costs? I read in the newspaper yesterday that the CPS is now very well off. Is it now fairly relaxed about whether it recovers costs or not?

[54]MR BLAKE: My Lord, I received a verbal indication as to costs. I am afraid I have received no indication as to whether this authority from this court had had effect in --

LORD JUSTICE BROOKE: Could you, at my request, make sure that this authority is understood by every branch of the Crown Prosecution Service which may have business in this court?

[56]MR BLAKE: I can certainly undertake to take that message back.

LORD JUSTICE BROOKE: Which area is instructing you?

[58]MR BLAKE: My Lord, I am representing the Crown Prosecution Service in Buckinghamshire, responsible for Aylesbury.

LORD JUSTICE BROOKE: Well, as you know, paragraph 13.6 of the costs practice direction says:

"The failure by a party, without reasonable excuse, to comply with the foregoing paragraphs will be taken into account by the court in deciding what order to make about the costs of the claim, hearing or application, and about the costs of any further hearing or detailed assessment hearing that may be necessary as a result of that failure."

[60]Now what submission do you want to make about that?

[61]MR BLAKE: My Lord, I cannot say more than to repeat the submission that I have made, that regrettably that has not been complied with. The court clearly bears a residual discretion in relation to costs, and my application will be that, on this occasion, the court having administered a strong warning could still exercise that discretion to recompense the costs of this appeal.

MR JUSTICE MITTING: You can hardly seek, can you, to have the costs of the detailed assessment?

[63]MR BLAKE: No. The figure for costs that I have been provided with is a figure of £1,000, which I understand --

LORD JUSTICE BROOKE: What about five hundred pounds?

[65]MR BLAKE: £1,000 was the figure that I was instructed with of preparing the matter for bringing it to this court.

LORD JUSTICE BROOKE: You were asked to ask for £1,000?

[67]MR BLAKE: Yes.

LORD JUSTICE BROOKE: Without a schedule?

[69]MR BLAKE: My Lord, that is right.

LORD JUSTICE BROOKE: Well, there is nothing to stop us from making an order on account in any event. Very well.

[71]MR LEY: I would say two things, my Lord. The best way to bring it home is the way that Thomas LJ dealt with it.

LORD JUSTICE BROOKE: Well, that was a discretion he was exercising there. That does not mean to say that every time we have an unmeritorious appeal relating to a point in the Road Traffic Act, the unsuccessful appellant will get no order for costs made against him.

[73]MR LEY: Then all I can say, my Lord, is that the other way would be the make no order on account in view of -- that would be, if you like, they get their costs eventually.

LORD JUSTICE BROOKE: Why should they not have an order on account? If we made an order for, say, £600 on account, I dare say that any balance could be settled by agreement without having any further hearing before anybody.

[75]MR LEY: That may well be right, but I would not -- well, if your Lordship wants to make an order, then £600 on account, detailed assessment, costs of a detailed assessment to be my client's in any event --

LORD JUSTICE BROOKE: No, you may be being totally unreasonable in what you are saying. This would be a green light for utter unreasonableness.

[77]MR LEY: Subject to a taxing master allowing costs --

LORD JUSTICE BROOKE: Taxing masters went out six years ago.

[79]MR LEY: Sorry, the costs judge's discretion. Subject to -- or you could say, my Lord, the costs of the taxation to be at the cost judge's discretion. So if he thought that my client was acting unreasonably, then he could make my client pay, but if he thought my client was acting reasonably, then he could order the CPS to pay.

LORD JUSTICE BROOKE: Well, I think I will speak to my Lord and see if he agrees with me. (Pause).

[81]We would direct that the appellant pay the respondents the costs of the appeal, to be subject to detailed assessment if not agreed, and we direct that £600 should be paid on account, and that, in the light of the respondent's failure to provide a schedule for costs, in the event of the costs judge considering that, if a detailed assessment has to take place, the appellant's behaviour has not been not unreasonable, then the appellant should have the costs of the detailed assessment. I very much hope that the parties can agree any outstanding matters for costs without going to a detailed assessment.

[82]MR LEY: As your Lordship pleases. (Pause).

[83]MR JUSTICE MITTING: Well now, Mr Ley, you did not draw our attention to the fact that, although your client apparently drives a Porsche, he has a representation order.

[84]MR LEY: My Lord, two things. First, I just assumed that that would be known to the court, because the representation order was granted by the court. In the old days it was granted by the Legal Services Commission and --

LORD JUSTICE BROOKE: You are not wishing to make any submission why you should not pay the costs order we have ordered?

[86]MR LEY: Well, it has just come to my mind, of course, that if he is legally aided.

[87]THE ASSOCIATE: He is not legally aided, my Lord, he has a representation order. It is a completely different thing.

[88]MR LEY: Sorry, my Lord, a legal aid order. Everything is called a representation order, my Lord, and in these cases I have never had in these cases -- first, I assumed that because the order had been granted by the court, your Lordships were aware that my client was legally aided, and I am not saying a judge has ever made an order in this court against my client. That may be because they never considered the matter.

[89]THE ASSOCIATE: This is a matter of whether he needs to pay part of his own costs.

LORD JUSTICE BROOKE: I do not understand all of this. I am told that your client is a shareholder and director of a company in which he is earning £60,000 a year, and he has an equity of £110,000 in his house, and I cannot see at the moment why we should not make the costs order that we have made.

[91]THE ASSOCIATE: No, my Lord, there is no reason why he should not, but the other matter is whether he should actually pay part of his own costs of defending himself. This is something happens regularly in the criminal division.

LORD JUSTICE BROOKE: I see. This is an entirely different matter. This is whether we order you to pay your costs of defending yourself.

[93]MR LEY: My Lord, all I can say is that I have never come across a costs recovery order being made by a divisional court.

LORD JUSTICE BROOKE: Well, you are coming across it today.

[95]MR LEY: I would say, my Lord, that there should be no order made because --

LORD JUSTICE BROOKE: Why? I mean it is all to do with defence costs. One can hardly pick up a newspaper today without hearing about the public interest in reducing the amount spent on "legal aid" in criminal work, to enable others who are socially excluded in civil and family work to have some larger share of the cake. Having glanced at your client's statement of means, I cannot see any reason why he should not pay his own costs under the representation order.

[97]MR LEY: There is only one reason that I can put forward. This court has finally answered a question which various Magistrates' Courts have been taking different views on. Some have taken the view expressed in this court, other magistrates have allowed evidence of non-approval of the intoximeter to be given in section 8(2) cases. What your Lordships have done is finally to decide the points so that Magistrates' Courts will not be troubled. Magistrates' Courts all over the country were taking different views of it, my Lord, so he has, if you like, in effect bought that to the court, and you have decided the point.

LORD JUSTICE BROOKE: If it was a point of that importance it would come straight to the magistrates instead of going via the Crown Court.

[99]MR LEY: Yes, my Lord. It was hoped that he would win in the Crown Court, because if he came here and won, all your Lordships would have done is remit it to the magistrates, and that would have taken even longer to dispose of. The only other reason why I submit that you should not make a defence costs order, my Lord, is that it has taken three years to get here --

LORD JUSTICE BROOKE: Yes, well that was because something got stuck in the Crown Court, and your solicitors did not ask why it had got stuck.

[101]MR LEY: Well, what happened --

LORD JUSTICE BROOKE: I have seen all the correspondence.

[103]MR LEY: I will say no more if you have seen all the correspondence.

[104]MR JUSTICE MITTING: Now, we are required by the Criminal Defence Service (Recovery of Defence Costs Orders) Regulations 2001 to make a recovery of defence costs order, unless certain conditions are satisfied. That is to say, to paraphrase it, that there is money left after you have knocked off £100,000 of equity at £25,000 of income and £3,000 of free capital. On the facts of this case, there is clearly adequate means to fund the order.

[105]MR LEY: I mean I will not plead poverty on behalf of my client, my Lord. The only reason I am suggesting --

LORD JUSTICE BROOKE: Over and above that, the financial resources of the funded defendant's partner are treated as the financial resources of the funded defendant, and we have the details of your partner's resources.

[107]MR LEY: I said, my Lord, I would never plead poverty in the case of --

LORD JUSTICE BROOKE: There is always going to be a first, Mr Ley, and by the sounds of it this is the first occasion on which your client will be paying all the costs which would otherwise be borne by the tax payer under the representation order.

[109]MR LEY: The only reason I can argue against, my Lord, is that he has finally decided a point of law which, in various Magistrates' Courts up and down the country they have been taking different views of the law, my Lord. So in this was, if you like, he is the one who has settled the law which has affected many, many cases.

[110]THE ASSOCIATE: The other matter, my Lord, is that there is a letter that is sent out by the Criminal Appeal Office, which obviously Mr Ley would not have had, but it actually states that regulation 10 puts the onus on counsel to bring with them a schedule of their costs.

LORD JUSTICE BROOKE: Yes. Well now, Mr Ley, you know all about these regulations for costs. Your solicitor has received a letter --

[112]THE ASSOCIATE: No, my Lord, he will not have received that letter. It is just an example of a letter which is sent you by the Criminal Appeal office, which mentions that regulation 10 puts the onus on counsel --

LORD JUSTICE BROOKE: Yes, it draws attention to regulation 10, which provides:

"Where he is requested to do so by the judge, the solicitor for the funded defendant shall provide an estimate of the total costs which are likely to be incurred under the representation order."

[114]That is probably in advance rather than afterwards. Yes, anyhow, we have both come to the clear view that this is a occasion upon which an order should be made that your client bears the whole of the costs which would otherwise be borne by the tax payer under the representation order.

[115](Pause). Mr Ley, the Associate has been extremely helpful and shown me the court order that is to be completed at the end of the proceedings. It sets out a number of matters.

[116]MR LEY: I have never seen one of those, my Lord.

LORD JUSTICE BROOKE: No, and as we do not know what the amount of costs are, what I would suggest is that you do see one of these pretty rapidly, pass it on to your solicitors, tell them to get in touch with the court making suggestions, and then, if Mitting J agrees, I will have the carriage of deciding what order will remain administratively once your solicitors have made suggestions to the court based upon your client's current means or lack of them. Very well.

[118]MR LEY: As it pleases your Lordship, I will.

[119]THE ASSOCIATE: We will also need a full schedule of the costs from the solicitor.

LORD JUSTICE BROOKE: We will need a full schedule of the costs which they will be claiming.

[121]MR LEY: But of course our costs are going to have to be taxed, my Lord.

LORD JUSTICE BROOKE: I suggest that you and your solicitor sit down and read these regulations.

[123]THE ASSOCIATE: My Lord, if after taxation the costs are found to be less than that estimated, then the order will be adjusted accordingly.

LORD JUSTICE BROOKE: Thank you. So you put in your estimate and your suggestion as to the rate at which you should pay, this court will make an order which will be, as I understand it, put then into effect, and if then your estimate is proved to be higher than what you receive on assessment, then you will not have to pay the balance.

[125]MR LEY: Yes, my Lord.

LORD JUSTICE BROOKE: I think as well as reading not only the practice direction to part 52, but also these defence order regulations.

[127]MR LEY: Yes, my Lord.

LORD JUSTICE BROOKE: The latter may be of relevance to all your future clients.

[129]MR LEY: I will bear that in mind, my Lord.