Director of Public Prosecutions v Darwen [2007] EWHC 337 (Admin)

Case No CO/8364/2006[2007] EWHC 337 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Wednesday, 24 January 2007
Strand
London WC2
B E F O R E:
LORD JUSTICE THOMAS
MR JUSTICE STANLEY BURNTON
DIRECTOR OF PUBLIC PROSECUTIONS
(CLAIMANT)
-v-
MARK DARWEN
(DEFENDANT)
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MR MARTIN WALSH (instructed by CPS, Blackpool) appeared on behalf of the CLAIMANT
MR NIGEL LEY (instructed by Glassbrooks) appeared on behalf of the DEFENDANT
J U D G M E N T
Between
Director of Public ProsecutionsClaimantDarwenDefendant
[1]The facts, as derived from the case and supplemented in an important respect by agreement between counsel today, can be summarised as follows.(1) On 5th October 2005 the respondent was stopped after driving a vehicle erratically. He was asked to provide a specimen of breath at the roadside. He put his lips round the tube but did not complete the test as instructed.(2) He was therefore arrested and taken to the police station.(3) At the police station the breath test procedures for a Lion Intoxilyser 6000 were undertaken and the relevant forms were completed.(4) The respondent agreed to provide a specimen of breath. The justices found that the respondent blew small amounts into the Intoxilyser machine on a number of occasions but withdrew the mouthpiece even though PC Lloyd told him to keep blowing.(5) The magistrates found that the defendant provided eight samples of breath. This was done in two cycles. As regards the first cycle, there was provided to us the relevant forms which showed the results. The first one showed that four breaths were made into the machine; the machine recorded incomplete specimens. However, the machine went on to set out the duration of the breath, the volume and the alcohol level. It is clear from those that the amount of breath blown in was .8, less than .1, less than .1 and 1.3; and the machine produced a reading which showed that the breath alcohol level was 70, 50, 44 and 67 respectively.(6) A second cycle was allowed by the police constable. The respondent blew on four attempts, which resulted, as the justices found, in some air going into the machine. However the respondent again removed the mouthpiece from his mouth and the machine stopped collecting air. The respondent removed the mouthpiece on a total of eight occasions, despite Constable Lloyd explaining the procedure.(7) On the second occasion the certificate showed that it was an incomplete specimen but there were readings which showed that there was a duration of breath of a short period with a volume on each of these occasions of .1 or less than .1; the quantity of alcohol shown in the breath was 70, 47, 41 and 45 respectively.(8) The justices found that the machine treated all the samples provided as being insufficient because the machine was set up to require deep lung air which the respondent did not supply.(9) The justices also found that the machine would have emitted a noise if sufficient air had been blown but no noise was emitted on any occasion as there was insufficient air in the machine.(10) They also found the Intoxilyser correctly calibrated itself before any of the specimens was provided and after the first four specimens had been provided.(11) They also made the following finding: "The respondent provided the specimens of breath that are required for analysis".[2]They went on to conclude, after referring to the argument before them, as follows:
"In reliance on the various relevant authorities cited to us, as we were of the opinion that the respondent did provide up to eight samples of breath albeit that they registered as 'incomplete' because the breath supplied did not constitute 'deep lung air', we found the respondent not guilty of the offence and therefore dismissed the information before us."
[3]The question they posed to this court is as follows:
"Were we correct in law in deciding that the specimens of breath supplied by the respondent which the Lion Intoxilyser 6000 machine rejected as incomplete were nonetheless sufficient to meet the requirements of section 11(3) of the Road Traffic Act 1988 and thus specimens as required by section 7(1)(a) of the Road Traffic Act?"
[4]Under the relevant statutory provisions, a constable must act strictly in accordance with those provisions. If the breath test is provided in accordance with the provisions then that breath test must be taken into account by the court. This was made clear by this court in Howard v Hallett [1984] RTR 353 at 368. Section 5(1) of the Road Traffic Act 1988 makes it an offence to be in charge of a motor vehicle in a public place after consuming so much alcohol that the proportion of breath exceeds a prescribed limit.[5]For the purpose of assessing the prescribed limit, sections 15 and 16 of the Road Traffic Offenders Act 1988 make various provisions as to the evidence that can be relied on. The court must take into account the specimen provided by the accused and must assume that the proportion of alcohol in the breath is not less than the specimen. Evidence of the proportion of the breath may be provided by a statement automatically produced by the device by which the proportion of alcohol in the specimen of breathe was recorded and the certificate signed by a constable.[6]Under section 11(3) of the Road Traffic Act 1988, which is by far the most important subsection we have to consider, it is provided:
"A person does not co-operate with a preliminary test or provide a specimen of breath for analysis unless his co-operation or the specimen - (a) is sufficient to enable the test or the analysis to be carried out, and (b) is provided in such a way as to enable the objective of the test for analysis to be satisfactorily achieved."
[7]If a full and proper specimen is not provided even though some of the readings may exceed the prescribed limit these are not readings which can be used as admissible evidence for an offence under section 4 or 5 of the Road Traffic Act 1988. That, it seems to me, emerges clearly from the decision of this court in Willicott [2001] EWHC Admin 415 to which it is helpful at this stage to refer. In that case the court recited the following finding:
"4. At the police station [the respondent] was required to give a breath test on the Lion Intoxilyser 6000 UK. A pro forma was completed by the police officer who administered the tests. There were four tests attempted by the appellant, but in respect of each of the four tests, the police officer considered that he had failed to provide a full and proper specimen, although the readings, each of which exceeded the prescribed limit, were noted, as were the times of each reading. They were accordingly not readings which could be used for the purposes of charging the appellant with driving whilst the alcohol level in his blood was above the prescribed limit."
At paragraph 11 of the judgment the court concluded that the concession that was made on behalf of the respondents that the magistrates were not entitled to have regard to the readings from the partial breath test and the result which followed from that was therefore that there was no evidence before the magistrates which could have entitled them to come to any conclusion based on reliability of those readings and of relevance to the issues before them.[8]It seems to me that that decision is obviously right in that it provides that if the test was not satisfactorily completed, then there was no admissible or reliable evidence.[9]I set out that proposition before turning to examine the contention put before the court by Mr Ley.[10]His contention is a very simple one. He says that the respondent blew into the Intoxilyser. The Intoxilyser had analysed what was blown into the machine and the readings which I have set out were an analysis for the purposes of the Act. Although the machine may have recorded that the readings were incomplete, nonetheless an analysis had been carried out; they showed that the amount of alcohol on the breath was in excess of the prescribed limit and therefore there was evidence on which the magistrates could have considered that the respondent was guilty of an offence under section 5. The basis of this submission was founded on the proposition that in the relevant provisions "breath" meant "air exhaled from anything". As breath had been provided and as an analysis had been carried out no offence had been committed.[11]The submission was founded on the decision of this court in Zafar v Director Of Public Prosecutions [2005] RTR 220, a case in which the defendant had been convicted when the Intoxilyser showed that the specimen of breath was in excess of the legal limit. In that case it was contended by the motorist that the Intoxilyser was designed to detect alcohol in deep lung air, as opposed to mouth alcohol. If the machine had been properly functioning it should have printed out "mouth alcohol, unsatisfactory specimen". The machine in question was unreliable. The prosecution therefore had to prove that it was deep lung air which had been exhaled and which contained alcohol in excess of the prescribed limit. As they could not show that, then the defendant in that case had not committed an offence. The essence of that submission was that breath, in the relevant provisions in the Road Traffic Act, sections 5, 7 and 11, meant deep lung air. This court concluded as follows:
"The result of this appeal depends on the construction of the word 'breath' in section 5 of the RTA and in section 15(2) of the RTOA. It is a relevant starting point that the New Shorter Oxford English Dictionary's main definition of the word 'breath' is 'air exhaled from any thing'. This definition confirms my view of how the word 'breath' is used and understood in normal parlance and Mr Ley does not appear to dispute this. Thus, neither the dictionary definition nor the normal use of the word 'breath' limits its meaning to 'deep lung air', which is the way in which Mr Ley says that it should be defined. In my view, unless there is any contrary intention expressed in the statutory provision, that definition of the word 'breath' should be adopted in construing the statutory provisions referred to in the Case Stated."
The court then went on to consider the various submissions made by Mr Ley in relation to the intention of Parliament and to whether there was a relevant Pepper v Hart statement. The court concluded at paragraph 22: "Therefore, I conclude that there is nothing in the RTA or in the RTOA, which suggests that the word 'breath' should have a special meaning or that the dictionary definition of 'breath' should not apply. It is noteworthy that the statutory provision refers to 'breath' and not to 'deep lung air'. What Mr Ley is seeking to persuade us to do is to rewrite the statutory provision and that is not correct. Mr Ley therefore contends that as "breath" has this ordinary dictionary definition then, in this case the respondent had provided breath; that had been analysed and there was no offence committed under section 7(2).[12]He went on to submit, as I have indicated, that what really ought to have happened in this case, is that as the readings had shown an excess of the prescribed limit and the sample was analysed, then there was proper evidence upon which, subject to one point, the respondent could have been convicted under section 5. The one point was that the police officer had not offered the option of another test. But subject to that he says that the readings provided by this machine would have amounted to sufficient evidence.[13]I cannot accept that argument. It seems to me that the issue in this case turns essentially upon the meaning of section 11(3). That section was considered by this court in DPP v Heywood [1997] RTR 1. It is not necessary to recite the facts of that case but merely refer to a passage in the judgment of Lord Bingham of Cornhill, the then Chief Justice, where he said:
"The simple question therefore arises: did the defendant fail to provide a specimen of breath for purposes of section 6(4) of the Act of 1988. The answer to that question depends on the application of section 11(3). Rephrased, therefore, the question is: did the defendant provide a specimen of breath which was sufficient to enable the test to be carried out and which was provided in such a way as to enable the objective of the test to be satisfactorily achieved? To that question there is, in my judgment, only one possible answer, which is 'No'. The objective of the test was to establish reliably whether a sample of the defendant's breath was or was not positive when tested for alcohol. The defendant gave a specimen in such a quantity or in such a way that it could not be established reliably whether a sample of her breath was or was not positive when tested for alcohol. The specimen she gave enabled a reading to be obtained, but the reading might or might not be reliable. It was reliable if it was positive, but not reliable if it was negative."
In my judgment first it is clear in this case that the officer was requesting, on the findings of fact made by the justices, the respondent to blow into the machine. The justices found that the respondent removed the mouthpiece on a total of eight occasions, despite the constable explaining the procedure.[14]Secondly, it is clear from the certificates to which I have referred that the machine itself recorded that there was an insufficient specimen. It seems to me, therefore, reading section 11(3) and asking myself the question: had a specimen of breath been provided in accordance with it?, the answer is plainly "No". The respondent did not provide a specimen for the analysis to be carried out, and he did not provide it in such a way that the analysis could be satisfactorily achieved. There were two reasons: first, the respondent did not provide a specimen of breath as directed; and secondly, the machine itself made it clear that the amount of air produced was insufficient for its purposes.[15]Mr Ley contends that we should not reach that conclusion because we would, in effect, be finding that what the respondent had failed to provide was deep lung air. In my view, the magistrates' finding that the machine was set up to require deep lung air, and their view that he was not required to provide deep lung air, is wholly irrelevant. The question was: was the breath to be provided, taking the ordinary definition of that word as set out in Zafar, sufficient for the purposes set out in section 11(3)? In my view the answer is plainly "No".[16]It was also argued by Mr Ley that we would somehow be interfering with a question of fact that the magistrates had reached. He referred us to the decision of Cousins v Brutes [1973] AC 854 at 860 to 861. It was contended that the magistrates had made a finding that the specimen of breath had been provided and we should not interfere with that finding. It seems to me that that is an argument that is fallacious. The justices in no way, as appears from the case stated, set out properly to analyse section 11(3): they reached a conclusion in this case without such an analysis. They therefore had not properly followed the statutory scheme and had made an error of law. I therefore cannot see any basis for the contention made by Mr Ley in the second head of submissions.[17]It follows, therefore, in this case, that I have come to the view, which I consider unremarkable, that the justices in this case should have convicted the respondent and the answer to the question posed is that they were not correct in law.

MR JUSTICE STANLEY BURNTON: I agree.

[19]The provisions of this legislation must, as has been said on numerous occasions, be interpreted so as to be easily applied in a common sense way by police officers and easily understood by defendants who may be subject to their requirements.[20]The requirements of section 7 must be read together with the provisions of section 11(3). Section 11(3) imposes two requirements in relation to the co-operation of a person who is accused of a relevant offence. His co-operation must be to provide a specimen of breath which is sufficient to enable the test or analysis to be carried out and -- and it is important to notice that the word is "and" and not "or" -- is provided in such a way to enable the objective test for analysis to be satisfactorily achieved.[21]It seems to me that it offends common sense to say of the respondent in this case that he did provide his specimen in such a way as to enable the objective of the test to be satisfactorily achieved given the findings of the magistrates to which my Lord has referred as to what he did when asked to blow into the Intoxilyser machine.[22]MR WALSH: Thank you, my Lords. In those circumstances, perhaps the order would be that the matter be remitted for directions to convict in the absence of the respondent raising reasonable excuse. LORD JUSTICE THOMAS: Yes, obviously that is a matter for me.[23]MR WALSH: The matter be remitted, subject to the question of reasonable excuse, where the magistrates convict.[24]In view of your Lordships' decision, I make an application for costs.

LORD JUSTICE THOMAS: Mr Ley, why does the question of excuse arise? It was not raised before the magistrates.

[26]MR LEY: No, because of the way the defence concentrated on this issue.

LORD JUSTICE THOMAS: There was no issue as to the respondent having any excuse for not co-operating. Why should the magistrates have to reinvestigate an issue which was not raised before them?

[28]MR LEY: Because they were not yet functus officio. Under the Criminal Procedure Rules much more latitude has been given to ---

LORD JUSTICE THOMAS: If the issue had not been raised earlier, you would have a great deal of persuading for allowing you to raise it now, surely.

[30]MR LEY: I entirely accept what your Lordship says, it is entirely a matter for the magistrates. They may take the view it is too late; it is a entirely a matter for them, my Lord.[31]MR JUSTICE STANLEY BURNTON: I am not sure that is right. It is a matter for us, is it not?[32]MR LEY: I am asking you to leave the discretion to them.[33]MR WALSH: My Lord, this was not a submission of no case to answer at the end of the prosecution case. This was a case where the submission of no case was made was rejected by the justices, and defence evidence was called; and at the conclusion of the defence evidence the acquittal followed that this was a case (inaudible) and reasonable excuse was not raised as part of the defence in the case.

LORD JUSTICE THOMAS: Mr Darwen did not suggest he had a reasonable excuse.

[35]MR WALSH: No.

MR JUSTICE STANLEY BURNTON: Was there any suggestion of reasonable excuse, Mr Ley?

[37]MR LEY: He said he did his best, my Lord. But (inaudible) he did his best and maybe he could not produce any more breath specimens.

LORD JUSTICE THOMAS: Did they consider medical evidence?

[39]MR LEY: No, my Lord. But the magistrates in their judgment did not deal with that point. My recollection is my instructing solicitor was there, who took a note of the evidence.

LORD JUSTICE THOMAS: Could you take instructions?

[41]MR LEY: Sorry for what I said. No, he was not there, I am getting confused with other evidence.

LORD JUSTICE THOMAS: If it was not raised and he gave evidence, it cannot be right to allow you to open that up now.

[43]MR LEY: I say nothing further, my Lord.

LORD JUSTICE THOMAS: So it is a direction to convict?

[45]MR LEY: Yes, my Lord.

LORD JUSTICE THOMAS: Very well. Costs?

[47]MR WALSH: My Lord, there is the question of costs.[48]MR LEY: I hope your Lordship will not think it rude if I quote what your Lordships said on a previous occasion. I could read it out in full, but basically if there is no schedule of costs then they will not get their costs in this court, and I will ask ---

LORD JUSTICE THOMAS: Is there no service of their schedule?

[50]MR WALSH: I am not assisted by anybody from the Crown Prosecution Service.[51]MR LEY: I can hand in your Lordship's judgment.

LORD JUSTICE THOMAS: Why is there not a schedule?

[53]MR WALSH: I do not know.

LORD JUSTICE THOMAS: The real problem in cases of this kind is if schedules are not provided we cannot get rid of these cases, and it has to be ---

[55]MR WALSH: The order I was going to ask for was the costs to be taxed.

LORD JUSTICE THOMAS: But you know you are meant to provide a schedule.

[57]MR WALSH: Yes. I do not have an explanation for that, I am afraid, and I do not have anybody from the Crown Prosecution Service here today.

LORD JUSTICE THOMAS: (Pause) You have no explanation as to why? How quickly can you provide a schedule?

[59]MR WALSH: I could make a telephone call to the Crown Prosecution Service, my Lord, but on my recent experience, whether I will be able to speak to ---

LORD JUSTICE THOMAS: Well, we have to come back at 2.00.

[61]MR LEY: My Lord I will object, because you made it clear on a previous occasion. If I can hand in ---

MR JUSTICE STANLEY BURNTON: On a previous occasion in this case or in some other case?

[63]MR LEY: Not this particular case. It was simply a breathalyser case from the Liverpool Crown Court where my Lord, Thomas J, was presiding.

LORD JUSTICE THOMAS: Let me see what I said then. Subject to that, why can we not deal with this matter at 2.00, then it is out of the way?

[65]MR LEY: My Lord, because on the rules it must be served 24 hours in advance. If they are not served 24 hours in advance then there has to be a detailed taxation. Can I refer you to page 10, my Lord? Do you see half-way down the page? "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." Sorry, the last page of mine has come off.

MR JUSTICE STANLEY BURNTON: I have read down to the bottom.

LORD JUSTICE THOMAS: I have read ---

[68]MR LEY: So I would merely quote Thomas LJ to conclude:
"The court below has no doubt dealt with that."

LORD JUSTICE THOMAS: I have no recollection of the detail of this case at all, but there were no doubt reasons in that case where we thought what should have happened should have happened. But in this case why should we not say at 2.00 we will deal with this matter? We have to sit again, you will have plenty of opportunity for dealing with it, it is a short matter.

[70]MR LEY: Except my Lord says they must be served 24 hours ---

LORD JUSTICE THOMAS: We can always abridge time.

[72]MR LEY: -- for summary assessment, otherwise they go for a detailed assessment, on which I would ---

LORD JUSTICE THOMAS: Mr Ley, it happens every day at the end of the case one party produces a schedule which has not been properly served, the parties co-operate together, look at it sensibly and come to an agreement and if not the court deals with the matter.

[74]MR LEY: I would merely say that I cannot say anything further except to quote what was said in that previous case.

LORD JUSTICE THOMAS: There were no doubt reasons in that case. I simply do not remember; it is over two years ago. But can we say at 2.00?

[76]MR WALSH: My Lord, I will make inquiries. May I just make this comment? The arrangements by which counsel now instructed on these cases by the Crown Prosecution Service has changed, and no longer is there an agreed fee with counsel. What happens is that counsels' fees, I am afraid now, are subject to the very high costs case regime under the Crown Prosecution Service scheme, subject to expos facto determination by the Crown Prosecution Service. So I have no idea what my fees will be, and somebody at the Crown Prosecution Service ---

LORD JUSTICE THOMAS: You cannot be subject to a VHCC regime. This is not a very high costs case. How are the rules meant to work with regard to the CPS?

[78]MR WALSH: The new CPS scheme -- payment for High Court and Court of Appeal work, regardless of complexity of the case -- is that counsel will be paid in accordance with the Crown Prosecution Service VHCC regime.

LORD JUSTICE THOMAS: But I do not understand this. How do the rules work?

[80]MR WALSH: There is an agreement between ---

LORD JUSTICE THOMAS: No: how would you comply with the rules of this court which require you to put in a schedule?

[82]MR WALSH: I suppose the answer is I cannot.

LORD JUSTICE THOMAS: But that cannot be right. When did these rules come in?

[84]MR WALSH: I understand that they came in towards the end of last year.

LORD JUSTICE THOMAS: Could you make some inquiries? (Lunch adjournment)

[86]MR WALSH: My Lords, the position is this. I spoke to the Crown prosecutor on the telephone at Blackpool, explained the position, asked for an explanation as to why there was no schedule as to costs. I have not received an adequate explanation for that, but I was told that a schedule would be faxed to the court. I explained that it was necessary for that schedule to be here in time for this hearing at 1.45. I went up to the Administrative Court office at 1.40 and no such schedule has been received.

LORD JUSTICE THOMAS: Maybe the associate could give them a ring. Did you resolve the problem that you raised with us earlier, namely that the CPS's new regime is incompatible with providing a schedule?

[88]MR WALSH: The position is this. There is a manual now which deals with the decree of Crown Prosecution Service fees to counsel. In the past, fees for the High Court and Court of Appeal would be agreed in advance of the hearing by negotiation between the clerk and the Crown Prosecution Service. That no longer applies. The regime which is now in force is the Crown Prosecution Service VHCC regime. The position is this. Initially they indicate the number of hours of preparation they are prepared to allow for a hearing at the VHCC rate, together with the daily rate in court, which is £330. If the hours of preparation for the Crown Prosecution Service are prepared to allow or thought to be insufficient -- and in this case they were -- then the regime requires detailed consideration after the event by the Crown Prosecution Service of the number of hours that were taken to prepare the case for full hearing. That is the position.

LORD JUSTICE THOMAS: This needs taking up with someone, because otherwise you are never going to be able to provide a schedule. The matter must arise in the next case as well.

MR JUSTICE STANLEY BURNTON: What is the hourly rate?

[91]MR WALSH: My Lord, the position is this. I was offered four hours at £70 an hour to prepare the case, including skeleton argument; and the fixed fee of £330 to come down from Manchester to conduct the proceedings.

LORD JUSTICE THOMAS: Including the train fare?

[93]MR WALSH: No, they will pay my train fare on top. I said that they are not negotiable at all on a daily rate because that is the VHCC rate applicable for a day in court.

LORD JUSTICE THOMAS: That is all you get? £330 plus four hours?

[95]MR WALSH: That was the initial offer. The position is this. My clerk, I think, spoke to the Crown Prosecution Service, saying that more hours are now to be required to prepare the case to consider the legal authorities, to prepare the skeleton argument and to have the conference. The position is that they will then assess the appropriate number of hours after the hearing.

LORD JUSTICE THOMAS: So £330, plus fare, plus four hours at £70 an hour.

MR JUSTICE STANLEY BURNTON: How much is the train fare?

[98]MR WALSH: The train fare is £330.

LORD JUSTICE THOMAS: It costs more to come on the train than they pay you for a day's hearing.

[100]MR WALSH: From Manchester on a train before 9.30 it is £337.

MR JUSTICE STANLEY BURNTON: Did you do the case in the court below?

[102]MR WALSH: No, I did not. The Crown prosecution solicitor did it in the court below.

MR JUSTICE STANLEY BURNTON: Given that £330 is the fare, why did they instruct non-London counsel?

[104]MR WALSH: I cannot answer that.

LORD JUSTICE THOMAS: How much preparation would you in fact claim for?

[106]MR WALSH: Including I have had a conference, skeleton argument, considered the authorities, I would say about ten hours.

LORD JUSTICE THOMAS:

[107]Effectively, what you will be saying is that your fee will be about £1,000, and train fare £330. Is there any other costs?[108]MR WALSH: The Crown Prosecution Service costs, but I am unable to tell you what --

LORD JUSTICE THOMAS: Why?

[110]MR WALSH: I do not know how many times ---

LORD JUSTICE THOMAS: Well presumably they had to put in an appearance. Sorry, they lodged the papers.

[112]MR WALSH: They lodged the papers, prepared the bundle, had a conference with me.

MR JUSTICE STANLEY BURNTON: And there must be a fee for the application.

[114]MR WALSH: And there must be a court fee.

MR JUSTICE STANLEY BURNTON: There is a hearing fee as well, is there not?

[116]MR WALSH: It was our appeal.

LORD JUSTICE THOMAS: What is the fee? Can you remember, roughly? So we know roughly, we are talking for you about £1,300, something for the CPS and the court fees. Is that it?

[118]MR WALSH: That is the only information I can give to your Lordship, so I regret that position.

MR JUSTICE STANLEY BURNTON: The maximum is about £2,000.

[120]MR WALSH: Yes.

LORD JUSTICE THOMAS: Let us assume it has not come, Mr Ley, what do you say?

[122]MR LEY: My Lord, first of all is whether you should make an order for costs at all. It was governed by section 51 of the Supreme Court Act. Subsection (1):
"Subject to the provisions of this or any other enactment and to rules of court, the costs of and incidental to all proceedings in- ... shall be in the discretion of the court."
But it goes on to say (5):
"Nothing in subsection (1) shall alter the practice in any criminal cause, or in bankruptcy."
Therefore the Supreme Court Act said you have to follow the normal principle in the Supreme Court Act thatthe costs follow the event; it does not apply in criminal cases. Any costs is a sanction against the defendant and must be considered.[123]Secondly, my client did not bring the case. He never brought the case in the first place. He won in the magistrate and he was virtually forced to defend in this court. In a criminal case I would submit that where a defendant is brought to this court it would be wrong to award costs against him, because ---[124]MR JUSTICE STANLEY BURNTON: Because it takes what this court holds to be an unfounded point of law before the magistrate.[125]MR LEY: Your Lordship made it to be unfounded; the magistrates did not.[126]MR JUSTICE STANLEY BURNTON: No, but this court did, and I am afraid at this level this court trumps the magistrates.[127]MR LEY: I am not saying your Lordships got it wrong, but I am merely saying the magistrates, having found for him in the first place, all he was doing was resisting. And if he appealed to this court, then I would submit there is a lot of force in your judgment: he brings the case to this court why should he not pay? But he was brought here by the prosecution. Maybe he initiated the case, he got himself arrested. But having won in the magistrates' court he can hardly say they were complete idiots. He obviously took the view or was advised that the magistrates (inaudible) for what the magistrates say.[128]Therefore I submit that people should not be put out, otherwise you would have nobody her from defence. It would not at the end of the day make any difference whether I turned up or not, but that was not to be known until you heard all the argument. Therefore I submit that the practice should be that when somebody comes here -- I have in a number of cases, my Lords, and taken to the House of Lords, the only time I ever seem to end up here is when I win in this court; and in all those cases the House of Lords have always refused to award costs against my client on the grounds he may have been the author of his own misfortune when he got arrested but he was not the author of his own misfortune when he appeared before the House of Lords. I would only ask you to follow the House of Lords. But where they are taken there by the Crown Prosecution Service I have never (inaudible) House of Lords.[129]Unfortunately the DPPS tend to be successful, but they have not awarded any costs against my client on the ground that he had been sort of taken there, and therefore I would ask you to follow the House of Lords' decision. But where there was a decision of a magistrates' court -- obviously the magistrates have reached it out of consideration below and on advice of their clerk, but it would be wrong to make an order for costs against my client to defend it. The practice in the criminal court, at least as applied by the House of Lords, is they will not award costs against.

MR JUSTICE STANLEY BURNTON: What do you say about the figure?

[131]MR LEY: Well, it is very difficult. I have not had a schedule of costs, and the rules make it clear that no schedule of costs -- I would make this comment, there is actually no reason why Manchester counsel had to be briefed. If he had been in a case in the Blackpool Magistrates' Court I would entirely (inaudible). The brief fee for £337 was for a full day; it was half a day, so a half. I know what the CPS are like: they will only pay half a day. Not that I (inaudible) I know what they are like on the days that I did it. I entirely accept my learned friend probably did spend that many hours, but knowing the CPS, trying to get them to pay more than four hours would probably (inaudible) lasting a year between his clerk and the CPS. Therefore if anything is to be awarded it should be half the day's figure. That is what the CPS would pay him, plus his four hours. So I ask you to apply ---

LORD JUSTICE THOMAS: What are the fees in this court? What is the cost for lodging?

[133]MR LEY: As I understand it, you pay a fee when you lodge a case stated; but that is all.

LORD JUSTICE THOMAS: (Pause) What we are minded to do is, doing the best we can to save a lot of to-ing and fro-ing, taking into account the fee, what has been paid, estimating something for the CPS, would be summarily assess the cost at £900.

[135]MR LEY: My Lords, in those circumstances I would ask that you deduct from that an hour-and-a-quarter at £130 an hour. My fee is the same whether I am here all day or not, but my instructing solicitor could have left court at 12.45, instead he had waiting time until 1.45 at £130 plus 20 minutes here again, £130, and therefore he is entitled to (inaudible) a schedule of costs. My client would have incurred further costs in instructing a solicitor. Fair is fair; I mean ---

LORD JUSTICE THOMAS:

[136]I think you have done pretty well at £900. There you are, Mr Ley, thank you very much.

Cited in 1 later judgment