Dowler v Merseyrail [2009] EWHC 558 (Admin)

Case No CO/5023/2008

[2009] EWHC 558 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice

Date Wednesday, 4 March 2009

Strand

London WC2A 2LL

B e f o r e:

LORD JUSTICE GOLDRING

MR JUSTICE SWEENEY

Between

DAVID DOWLERClaimant

Between

MERSEYRAILDefendant

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Mr P Roche (instructed by Pearson, Fielding and Polson, Liverpool) appeared for Claimant

for The Defendant was not instructed and did not appear

J U D G M E N T

[1]This is an appeal by way of case stated against a decision of Justices sitting at the Wirral Magistrates' Court, who, on 28 January 2008, refused to make a defendant's costs order under section 16(1)(a) of the Prosecution of Offences Act 1985 ("the 1985 Act") and who gave no reason for their refusal at the time.

[2]The background taken from the case stated is as follows:(1) On 16 May 2007, the appellant was travelling on a train in the Wirral area when an enforcement officer, employed by the respondent, noticed that he had his feet on the stanchion between the seats opposite him. When challenged the appellant explained that he did not realise that the stanchion was part of the seat.

(2) On 17 August 2007, the respondent preferred an information against the appellant alleging that on 16 May 2007 he had behaved in a disorderly, indecent or offensive manner by putting his feet on the seat while on the train contrary to Bye-laws 6(2) and 26 of the Merseyrail Electrics Limited Byelaws and Transport Act 2000.

(3) A summons was issued to be heard at the Wirral Magistrates' Court on 16 October 2007.

(4) Prior to 16 October 2007, representations were made on the appellant's behalf to the respondent drawing attention to the fact that the appellant's feet had been on the stanchion, rather than the seat, and suggesting that a caution was appropriate. The respondent agreed and a formal simple caution was duly administered. As part of that the appellant admitted the offence.

(5) On 16 October the respondent withdrew the proceedings.

(6) On 5 December the appellant wrote to the court seeking a defendant's costs order under section 16 of the 1985 Act.

(7) The application was heard on 28 January 2008. The appellant's solicitor explained the background to the withdrawal of the summons. Between the legal advisor in court and the appellant's solicitor the Justices' attention was drawn to the Practice Direction (Costs: Criminal Proceedings) 2 All ER 1070 and to the case of R (Stoddard v Oxford Magistrates' Court

(2005) EWHC 2733

(Admin) in this court (Scott Baker LJ and Owen J).

(8) The Justices declined to make a defendant's costs order, but apparently gave no reason for doing so.

(9) Thereafter the Justices were asked to state a case.

(10) In the case stated, which was signed on 10 April 2008, the Justices indicated that their reason for declining to make the order was that the appellant had brought the proceedings on himself. The Justices indicated that they did not regard the examples set out in the Practice Direction, of circumstances in which it would not be appropriate to make an order, as being exhaustive. They concluded that in putting his feet on the stanchion the appellant had conducted himself in such a way as to bring the proceedings on himself.

[3]It is against that background that the Justices posed the following questions for this court to consider:

"(1) Taking into account the case of R (Stoddard) v Oxford Magistrates' Court (2005) EWHC Admin and the Practice Direction (costs: Criminal Proceedings) 2004, could a court, properly directed, reasonably use their discretion in the circumstances of this case to decide that a defendant's costs order should not be granted to a defendant in relation to proceedings for disorderly behaviour when those proceedings have been withdrawn against that defendant and the defendant had accepted a caution by the prosecuting authority prior to the proceedings being withdrawn? (2) Were we required, having determined that the application should not be granted, to set out in court our reasons for concluding that the defendant had brought the proceedings on himself?"

The Law

[4]Section 16(1) of the 1985 Act provides: "Where- (a) an information laid before a justice of the peace for any area, charging any person with an offence, is not proceeded with; ... that court or, in a case falling within paragraph (a) above, a magistrates' court for that area, may make an order in favour of the accused for a payment to be made out of central funds in respect of his costs (a 'defendant's costs order')".

[5]Guidance as to the exercise of the discretion conferred by section 16(1) was given by Lord Woolf CJ in the Practice Direction, to which I have already made reference above. Paragraph II.1.1 provides in relevant part:

"Where an information laid before a justice of the peace charging a person with an offence is not proceeded with ... the court may make a defendant's costs order. ... As is the case with the Crown Court (see below) such an order should normally be made unless there are positive reasons for not doing so. For example, where the defendant's own conduct has brought suspicion on himself and has mislead the Prosecution into thinking that the case against was stronger than it was, the defendant can be left to pay his own costs. In the case of a partial acquittal the court may make a part order ..."

Paragraph II.1.2 provides:

"Whether to make such an award is a matter in the discretion of the court in the light of the circumstances of each particular case."

[6]The reference to the Crown Court in paragraph II.1.1 means that regard must also be had to paragraph II.2.1, the relevant sentence of which is in the following terms:

"The court when declining to make a costs order should explain, in open court, that the reason for not making an order does not involve any suggestion that the defendant is guilty of any criminal conduct but the order is refused because of the positive reason that should be identified."

[7]R (Stoddard) v Oxford Magistrates' Court (above) was concerned with a refusal to make a defendant's costs order when the defendant had accepted a caution and proceedings against him for an offence of selling intoxicating liquor to a person under 18 had been withdrawn. There was no doubt in that case that the offence had been committed by an employee of the defendant, but a reverse burden due diligence defence was open to the defendant. In that case the District Judge gave reasons for refusing the order equating a caution with a conviction, approaching the issue on the basis that there was an onus on the defendant to seek resolution of proceedings by way of a caution, and that the charges could never realistically have been defended. This court held that the District Judge misdirected himself on all three grounds. To that extent it was a cased decided very much on it own facts, albeit that it highlights the practical differences between a caution and a conviction. The court at paragraph 14 drew specific attention to the need in the Magistrates' Court to comply with the relevant sentence of paragraph II.2.1 as to the need to give reasons for a refusal. The Arguments

[8]As to the first question, in written argument before the court, Mr Roche, on the appellant's behalf, submits that:(1) Reliance on the appellant having brought the proceedings on himself is inconsistent with the relevant part of paragraph II.1.1 of the Practice Direction which refers to, as I have indicated above: "For example, where the defendant's own conduct has brought suspicion on himself and has misled the prosecution into thinking that the case against him was stronger than it was."

(2) In this case there is no suggestion that the defendant misled the prosecution into so thinking.

(3) The Justices' reason ignores the practical distinction between a caution and conviction, as referred to in the Stoddard case above.

[9]As to the second question, in his skeleton argument Mr Roche submits that the duty to identify the reason for a refusal is set out clearly in the relevant sentence of paragraph II.2.1 of the Practice Direction and was referred to in the Stoddard case (above), which was before the Justices. It is self-evident, he suggests, that the Justices failed to comply with this duty. The Merits

[10]As to the first question, I am, of course, concerned with the exercise of a discretion by the Justices with which this court will only interfere if satisfied that it was Wednesbury unreasonable. It seems to me that it was so unreasonable. The reason given by the Justices in the case stated is that the defendant had brought the proceedings on himself by placing his feet on the stanchion between the seats. This, however, was to rely on only part of an example in paragraph II.1.1, whereas the relevant sentence contained an important conjunctive. The example as a whole was of no application in this case. The appellant had not misled the prosecution at all.

[11]Of course, the relevant sentence only provides an example, but if Lord Woolf CJ had intended that a defendant bringing suspicion on himself and no more was a sufficient reason, it would have been simple to say so. Equally there seems to have been no proper consideration by the Justices of whether in the case of this minor offence it would not have been more appropriate, for example, for the respondents to have offered a caution from the outset, rather than to serve a summons and so forth.

[12]As to the second question, it was wholly wrong, in my view, for the Justices not to identify the positive reason for refusal at the hearing on 28 January 2008. As this court made clear in the Stoddard case (above), which was after all before the Justices, the relevant part of paragraph II.2.1 applies in the Magistrates' Court.

[13]This is an important duty. The parties in a case are entitled to know the basis upon which a refusal has taken place, and it must be explained sufficiently for the basis to be understood. It is an important duty because a defendant must be able to make an informed decision as to whether to take the matter further, and so that both he and any appellate court can be confident that the reason advanced reflects the court's contemporaneous thinking, rather than being the product of any later refinement conscious or unconscious. Conclusion

[14]It follows that I would answer the questions as follows: Question 1, in the circumstances of this particular case, no. Question 2, yes. It follows that in my judgment this appeal should be allowed.

LORD JUSTICE GOLDRING: I agree.

[16]MR ROCHE: I am grateful to your Lordships. Do your Lordships remit the case to the Justices?

LORD JUSTICE GOLDRING: Is that necessary, Mr Roche? We simply quash the order which they made and that brings it to an end, does it not?

[18]MR ROCHE: The appellant will, of course, need a defendant's costs order in due course from the court.

LORD JUSTICE GOLDRING: Could we not make that order now? It seems a tremendously time consuming business to go back to the magistrates.

[20]MR ROCHE: Certainly if the court has jurisdiction I would welcome that.

LORD JUSTICE GOLDRING: Speaking for myself, if we could make the order that the costs order be quashed and that your client receives his costs from Central Funds, then I think that would do.

[22]MR ROCHE: Your Lordship must have jurisdiction under the Prosecution of Offences Act to make such an order.

LORD JUSTICE GOLDRING: We do.

[24]MR ROCHE: For the avoidance of doubt, my client is publicly funded for the purposes of this appeal from the date of issue of the application. However, there were costs incurred between the refusal by the magistrates and the issue of the application, because there was considerable correspondence with the Magistrates' Court both in persuading them to state the case and then refining its terms. I invite the court to make the defendant's costs order covering that period as well.

LORD JUSTICE GOLDRING: Yes.

[26]MR ROCHE: My Lord, I am very grateful.