Newcombe v Crown Prosecution Service (CPS) [2013] EWHC 2160 (Admin)

[2013] EWHC 2160 (Admin)Case No CO/2762/2013
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Cardiff Civil Justice Centre, 2 Park Street, CardiffDate Thursday, 20 June 2013
CF10 1ET
B e f o r e:
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
SIR JOHN THOMAS
MR JUSTICE HICKINBOTTOM
Between
KEVIN NEWCOMBEAppellantv
Between
CROWN PROSECUTION SERVICERespondent
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr P Hobson (instructed by Messrs Griffiths & Johns, SA7 9WR) appeared for Claimant
J U D G M E N T
[1]MR JUSTICE HICKINBOTTOM: This is a defendant's appeal by way of case stated from a decision of District Judge Charles sitting in Swansea Magistrates' Court on 23 November 2012. The appellant was charged with assault occasioning actual bodily harm, contrary to section 47 of the Offences against the Person Act 1861. On the day of trial, the prosecution offered no evidence; and invited the district judge to dismiss the charge, which he did. He ordered that the Appellant's costs be paid from central funds; but restricted those costs to the costs of the 23 November hearing. The Appellant appeals against that restriction, the question posed by the district judge to this court being:
“Was I correct to restrict the Appellant's costs in the way outlined, that is to the costs of the day of the trial?”
[2]The background to the criminal proceedings was, briefly, as follows. On the evening of 9 April 2011, the Appellant and a friend called Darren Taylor were involved in an altercation with another man, Gareth Joyce, in a bar at the Village Hotel in Swansea, which resulted in both the Appellant and Taylor being charged with section 47 assault. It was the prosecution case that Taylor had approached Joyce in the bar and punched him from behind, causing him to fall to the floor. Whilst he was lying there, the Appellant was said to have kicked Joyce to the face or other parts of his head at least three times. Joyce went to hospital for treatment and there, upon examination, it was noted that he had sustained a concussive injury and had bruising below his left eye and to his jaw, face and neck.[3]The Appellant accepted presence at the incident; but in interview denied behaving as alleged, stating that he had intervened as a peacemaker. In his defence statement, he said that he had acted in defence of himself and Taylor, and he specifically denied kicking Joyce.[4]Following his not guilty plea, despite the aggravating features, the magistrates accepted jurisdiction.[5]The trial was eventually fixed for 23 November 2012. At no time prior to trial did Joyce indicate that he might be anything less than a willing witness. For his part, the Appellant maintained that he had not been guilty of any wrongdoing, he refused to consider pleading to any lesser offence, and he was ready to contest the matter.[6]However, on the morning of the trial, although Joyce attended, he indicated to those responsible for the prosecution that he was unwilling to give evidence. The prosecution informed the Appellant and Taylor, and asked them if they would be prepared to be bound over. They said they would. However, when the matter was raised with the district judge who had been assigned to try the case, he declined to bind over either defendant, his reasons being set out in paragraph 2(g) of the case stated, namely:(i) the incident resulting in the charge was over 18 months old,(ii) throughout the proceedings both defendants had been bailed unconditionally,(iii) both defendants were hitherto of good character, and(iv) the purpose of any recognisance was to prevent future behaviour and, on the information available to the district judge, he considered that was unnecessary. When that decision was conveyed to the prosecutor, she invited the judge to dismiss the charge against both defendants in any event, which he did.[7]The judge then asked when the Appellant had indicated that he would be willing to be bound over; and was told, rightly, that he had done so that morning, after he had learned that the complainant was unwilling to give evidence. The judge took the view that in principle the appellant was entitled to his costs from central funds, but those costs should be restricted to those necessarily incurred in relation to the 23 November hearing, "due to the failure of the Appellant to indicate at any stage between charge and 23 November that he would consent to being bound over to keep the peace" (case stated paragraph 2(k)). In that failure, the judge considered the Appellant had not acted reasonably; he had failed to give effect to the overriding objective in the Criminal Procedure Rules (and, in particular, had not dealt with the case efficiently and expeditiously); he had failed actively to assist the court in fulfilling the overriding objective; and, if his conduct justified at any stage the appellant being bound over, he should have indicated his position at an earlier stage.[8]Before us, in attractively focused and succinct submissions, it is the contention of Paul Hobson of Counsel on the Appellant's behalf that the district judge erred in law in so restricting the appellant's entitlement to costs.[9]The relevant law can be shortly put. By section 16(1)(c) of the Prosecution of Offences Act 1985, where a magistrates' court dealing summarily with an offence dismisses the information then the court "may make an order in favour of the accused for a payment out of central funds in respect of his costs ('a defendant's costs order')". I should perhaps point out that proceedings in the Appellant's case were instituted before 1 October 2012; and therefore section 16 is applicable in this case in its form before amendments made by the Legal Aid, Sentencing and Punishment of Offenders Act 2012.[10]The exercise of that discretion is informed by the Lord Chief Justice's guidance in Practice Direction (Costs in Criminal Proceedings) [2011] 1 Cr App R 13. That confirms that whether to make an award is a matter in the discretion of the court in the light of the circumstances of each particular case (paragraph 2.1.2); but, in respect of defendant's costs orders, paragraph 2.1.1 of that guidance states:
"As is the case with the Crown Court ... 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 misled the prosecution into thinking that the case against him was stronger than it was, the defendant can be left to pay his cost own costs..."
The example given in paragraph 2.1.1, whilst of course only an example, emphasises that the circumstances that lead to a defendant losing his entitlement to a defendant's costs order if he is successful in his defence are narrow, to reflect the need to respect the presumption of innocence at common law and under Article 6 of the European Convention on Human Rights (see Emohare v Thames Magistrates’ Court [2009] EWHC 689 (Admin) at [28]).[11]Whilst I fully appreciate the discretion which lies in the court in relation to costs orders, and also the experience of the district judge who made the costs order in this case, I have concluded that that order, restricting the Appellant's entitlement to the costs of the day of the trial was unfortunately wrong, in the sense that it fell outside the bounds of discretion available to the district judge. In other words, it was not an order he could properly have made in the circumstances.[12]Mr Hobson submitted, first, that the district judge's order was inconsistent with his conclusion that an order binding over the Appellant on the day of the trial would be inappropriate. However, in drawing that conclusion, the judge took into account the length of time since the offence and the Appellant's good behaviour in that period. I do not consider that there is any logical inconsistency here, and would have been unpersuaded by that submission looked at in isolation.[13]However, Mr Hobson's second submission was in my view far stronger. The district judge imposed the restriction on entitlement to costs because in his view the Appellant had acted unreasonably in not indicating earlier than the day of the trial that he was prepared to be bound over to keep the peace. Mr Hobson submitted that that view was extremely harsh and indeed, as a matter of law, untenable.[14]I agree. With respect to the judge, his view as to the unreasonableness of the Appellant's failure to indicate a willingness to be bound over at an earlier stage ignores the realities of this prosecution, and how it proceeded. For the Appellant's part, he had indicated throughout in clear terms that he denied any wrongdoing at all, and had refused to consider pleading to a lesser charge even if that had at some stage been acceptable to the prosecution. Being bound over of course relates to possible future conduct and is not an acceptance, express or implicit, that the individual has been guilty of any wrongdoing. Prior to the complainant indicating reluctance to be a witness on the day of the trial, the prosecution never suggested that they would be prepared to accept a bind over. Had they done so, then no doubt the Appellant would have been willing to agree, as he readily agreed when it was first put to him on the day of the trial. But, given the serious injuries suffered by the complainant and his allegation of being hit to the head with the Appellant's shod foot, it is in my judgment sensibly inconceivable that such a resolution of this case would have been acceptable to the prosecution earlier. Any suggestion by the Appellant that he would agree to be bound over at an earlier stage would therefore have had no purpose. The turning point was when the complainant Joyce indicated he was unwilling to give evidence. The Appellant had not up to that point arguably acted unreasonably in failing to indicate a willingness to be bound over and, at the prosecution's request, he gave such an indication as soon as the circumstances changed, even though by that stage, as the judge found, a bind over was unnecessary and inappropriate. At that stage, on the judge's finding, the Appellant went considerably beyond the reasonable in offering to be bound over.[15]Consequently, I do not consider the Appellant arguably acted unreasonably in failing to indicate a willingness to be bound over earlier; nor do I consider there was any possible “positive reason” for not giving the Appellant a full defendant's costs order.[16]For those reasons, I consider the district judge did err in law. For my part I would answer the question posed by the district judge, "No": he was not correct to restrict the costs order in the way he did. I would consequently allow the appeal, and replace the costs order made by the district judge with the following

THE PRESIDENT OF THE QUEEN'S BENCH DIVISION: I agree.

order

“It is ordered that the costs of the defendant, Kevin Newcombe, be paid out of central funds”.