The Chief Constable of Warwickshire Police v MT [2015] EWHC 2303 (Admin)

[2015] EWHC 2303 (Admin)Case No CO/5682/2014
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN BIRMINGHAM
ON APPEAL BY WAY OF CASE STATED FROM
COVENTRY & WARWICKSHIRE MAGISTRATES’ COURT
Venue Birmingham Civil Justice Centre
Priory Courts, 33 Bull Street
Venue BirminghamDate Thursday 30 th July 2015
Before
MR JUSTICE HICKINBOTTOM
Between
THE CHIEF CONSTABLE OF WARWICKSHIRE POLICEAppellantMTRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedTrading as DTI165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
David Nuttall (instructed by Michael Goucher, Solicitor,Warwickshire Legal Services) for Appellant for The Respondent did not appear and was not representedHearing Hearing date: 30 July 2015
Judgment

Introduction

[1]This is an appeal by way of case stated from a decision of the Coventry & Warwickshire Magistrates’ Court sitting at Leamington Spa on 23 September 2014 to order the Appellant Chief Constable to pay the Respondent £3,189.60 costs after an application by the Appellant for a Sexual Offences Prevention Order (“SOPO”) in respect of the Respondent had been withdrawn.[2]The factual background is as follows. On 10 March 2003, in the Crown Court at Chelmsford, the Respondent was convicted of two sets of sexual offences against children, the first against his partner’s daughter in 1993 and the second (which included rape) against his stepdaughter in 2001. He was sentenced to an aggregate term of 13 years’ imprisonment.[3]On his release in May 2011, the Respondent was subject to a number of specific licence conditions, including conditions that he would: i) not have unsupervised contact with a child under the age of 18 without the prior approval of his supervising officer; ii) provide his supervising officer with details (such as make, model, colour, registration) of any vehicle he owned or hired or had use of, prior to any journey taking place; iii) notify his supervising officer of any developing relationships with women/men; and iv) comply with the requirements specified by his supervising officer for the purposes of ensuring that he would address his sexual offending behaviour problems.[4]These conditions were in addition to the standard licence conditions. One such condition was that the Respondent was required to reside permanently at an address approved by his supervising officer and notify him/her in advance of any proposed change of address or any proposed stay (even for one night) away from that approved address.

Background to the SOPO Application

[5]Following his release from prison, the Respondent resided in a canal boat moored at Barby Moorings Marina in Rugby.[6]The Appellant received reports from the Respondent’s probation officer (Richard Grant) and his managing officer (DC Angie Torley) that: i) In September 2011, the Respondent had sexual contact with an adult resident of a neighbouring boat. Subsequent to this, the Respondent told his probation officer that he did not have any developing relationships with anyone. ii) In Autumn 2012, the Respondent invited a friend and her two sons, aged 5 and 6, to his canal boat. At one point during the visit, the Respondent’s friend and one of her sons went to the bathroom, leaving the Respondent and one of the children alone for a time. iii) On 28 July 2013, the Respondent had moved his canal boat from its usual moorings and had hosted a woman and her 9 year old son for dinner. The Respondent had stayed away overnight. He had alerted his probation officer that he would be away overnight, but had said that he would not be having contact with any children. iv) The Respondent failed to inform any of the contacts to whom I have referred of his convictions.[7]On the basis of the above, DC Torley, on behalf of the Appellant, formed the view that the Respondent had breached his licence conditions and posed a risk of serious sexual harm to the public or members of the public. In the interests of protecting the public, the Appellant made a SOPO application. The application sought an order prohibiting the Respondent from, amongst other things: i) having unsupervised contact of any kind with any person under the age of 18 years; ii) developing any relationship with any female without notifying the public protection officer responsible for his management; iii) inviting or permitting any young person under the age of 18 years to enter any residence or premises where he was staying, temporarily or permanently; iv) entering any dwelling house where any young person under the age of 18 years resides; v) seeking or undertaking any employment, whether for payment or otherwise which would, as part of that employment, bring him into contact with any young person under the age of 18 years; and vi) going within 100m of a school or children’s play area. The application included an application for an interim order, pending final outcome.[8]A summons was issued on the complaint on 18 February 2014; and a hearing of the interim application was fixed for 4 March 2014, when it was refused on the basis that the justices considered that the Respondent’s licence conditions were sufficient protection of the public on an interim basis. The Respondent was represented at that hearing. His solicitor informed the Appellant’s solicitor and the court that the Respondent would seek the costs of that day’s hearing at the full hearing, which was set down for 4 June 2014.[9]In the meantime, on 31 August 2013, the Respondent alerted his probation officer that he was moving residence, having been evicted from the Marina. He moved to live at his place of work, which was the Canal Shop, Hillmorton Wharf, Rugby. On 28 May 2014, the Appellant’s solicitor was informed that the Respondent had moved again, and no longer lived in the Warwickshire police area. As a result, the Appellant’s solicitor notified the magistrates’ court that day that the Appellant was withdrawing the SOPO application. The Respondent asked for the hearing date to be maintained, so that the issue of costs could be dealt with then. However, the court asked him to make an application for costs, and the June hearing was vacated.[10]On 7 August 2014, the Respondent duly made a costs application. It was heard by the magistrates on 23 September 2014, when they made an order under section 52 of the Courts Act 1971 (“the 1971 Act”) in the requested sum of £3,189.60. It is that order which is the subject of this appeal.

The Law

[11]By section 104(5) of the Sexual Offences Act 2003 (“the 2003 Act”): “A chief of police may by complaint to a magistrates’ court apply for an order under this section in respect of a person who resides in his police area or who the chief officer believes is in, or is intending to come in, his police area if it appears to the chief officer that –(a) the person is a qualifying offender; and(b) the person has since the appropriate date acted in such a way as to give reasonable cause to believe that it is necessary for such an order to be made.” “Qualifying offender” is defined in section 106(5)-(7). The Respondent is a qualifying offender as a result of the convictions to which I have referred.[12]In pursuing a SOPO under this provision, a chief of police is exercising a regulatory function, associated with (but not part of) the criminal justice system: an application for a SOPO under section 104 is a civil proceeding heard by way of complaint.[13]The relevant statutory provisions for costs orders in the magistrates’ court in civil proceedings are as follows.[14]Section 64 of the Magistrates’ Courts Act 1980 (“the 1980 Act”) provides: “(1) On the hearing of a complaint, a magistrates’ court shall have power in its discretion to make such an order as to costs –(a) on making the order for which the complaint is made, to be paid by the defendant to the complainant;(b) on dismissing the complaint, to be paid by the complainant to the defendant (2) The amount of any sum ordered to be paid under subsection (1) above shall be specified in the order, or order of dismissal, as the case may be. (3) … [C]osts be ordered to be paid under this section shall be enforceable as a civil debt.” (a) on making the order for which the complaint is made, to be paid by the defendant to the complainant; (b) on dismissing the complaint, to be paid by the complainant to the defendant[15]Section 52 of the 1971 Act, under the heading “Award of costs where information or complaint is not proceeded with”, provides (insofar as relevant to this appeal): “(3) Where… a complaint is made to a justice of the peace acting in any local justice area but the complaint is not proceeded with, a magistrates’ court acting in that area may make such order as to costs to be paid…, by the complainant to the defendant as it thinks just and reasonable. (4) An order under subsection (3) above shall specify the amount of the costs ordered to be paid. (5) …. [F]or the purposes of enforcement an order under subsection (3) above made in relation to a complaint which is not proceeded with shall be treated as if it were made under section 64 of the Magistrates’ Courts Act 1980…”.[16]Thus it can be seen that section 64 of the 1980 Act and section 52 of the 1971 Act are formulated in similar terms, but the former applies where a claim is contested and fails, whereas the latter applies where a claim is made and “not proceeded with”. They therefore provide a comprehensive scheme covering all circumstances in which a case is not successful; and, whilst having different triggers, applying materially identical criteria for exercising discretion as to costs.[17]The discretion in magistrates to award costs under these provisions is patently wide, with a subjective element (“as it thinks just and reasonable”). The magistrates must nevertheless approach the exercise of the discretion in a lawful way. The proper approach has been the subject of a series of cases, and is now well-established.[18]In Bradford Metropolitan District Council v Booth (2000) 164 JP 485, magistrates had awarded costs against a local authority following a successful challenge to a vehicle licensing decision of that authority. The application was therefore under section 64 of the 1980 Act, not section 52 of the 1971 Act. However, as I have indicated, the formulation of those sections – and the criteria upon which the discretion in the magistrates is to be exercised – is essentially the same; and the principles set out in the judgment of Lord Bingham CJ in that case are equally applicable to section 52. The principles are as follows:
“1. Section 64(1) confers a discretion upon a magistrates’ court to make such order as to costs as it thinks just and reasonable. That provision applies both to the quantum of the costs (if any) to be paid, but also as to the party (if any) which should pay them. 2. What the court will think just and reasonable will depend on all the relevant facts and circumstances of the case before the court. The court may think it just and reasonable that costs should follow the event, but need not think so in all cases covered by the subsection. 3. Where a complainant has successfully challenged before justices an administrative decision made by a police or regulatory authority acting honestly, reasonably, properly and on grounds that reasonably appeared to be sound, in exercise of its public duty, the court should consider, in addition to any other relevant fact or circumstances, both (i) the financial prejudice to the particular complainant in the particular circumstances if an order for costs is not made in his favour; and (ii) the need to encourage public authorities to make and stand by honest, reasonable and apparently sound administrative decisions made in the public interest without fear of exposure to undue financial prejudice if the decision is successfully challenged.”
[19]The Court of Appeal considered the correct approach in costs applications such as this in R (Perinpanathan) v City of Westminster Magistrates’ Court [2010] EWCA Civ 40, a case in which the claimant sought to recover her costs of successfully defending proceedings brought by the Metropolitan Police Commissioner for the confiscation of £150,000 under section 298 of the Proceeds of Crime Act 2002 (“POCA”). Lord Neuberger MR (as he then was) referred to Lord Bingham’s principles in Booth, and continued (at [76]-[77]):
“76. The principles appear to me to be well-founded, as one would expect bearing in mind their source. In a case where regulatory or disciplinary bodies, or the police, carrying out regulatory functions, have acted reasonably in opposing the grant of relief, or in pursuing a claim, it seems appropriate that there should not be a presumption that they should pay the other party’s costs. It is not as if the other party would have no right to recover costs in such a case: as Lord Bingham made clear, one must take into account ‘all the relevant facts and circumstances of the case’, and in particular ‘the financial prejudice to the particular complainant if the order for costs is not made in his favour. However, it has not been suggested by either party to this appeal that weight should be given in this case to any points other than those I have discussed. In order words, if, as I consider to be the case, Lord Bingham’s principles apply in this case, it is not suggested on behalf of the Appellant that the magistrates or the Divisional Court reached the wrong conclusion. 77. The effect of our decision is that a person in the position of the Appellant, who has done nothing wrong, may normally not be able to recover the costs of vindicating her rights against the police in proceedings under section 298 of POCA, where the police have behaved reasonably. In my view, this means that magistrates should exercise particular care when considering whether the police have acted reasonably in a case where there is an application for costs against them under section 64. It would be wrong to invoke the wisdom of hindsight or to set too exacting a standard, but, particularly given the understandable resentment felt by a person in the position of the Appellant if no order for costs is made, and the general standards of behaviour that can properly be expected from the police, it must be right to scrutinise their behaviour in relation to the seizure, the detention, and the confiscation proceedings, with some care when deciding whether they acted reasonably and properly.”
[20]In summarising the correct approach, Stanley Burnton LJ said (at [40(5)-(6)]):
“(5) Where the principle applies, and the party opposing the order sought by the public authority has been successful, in relation to costs the starting point and default position is that no order should be made. (6) A successful private party to the proceedings to which the principle applies may nonetheless be awarded all or part of its costs if the conduct of the public authority in question justifies it.”
[21]The court thus confirmed and emphasised that, in contradistinction to a normal civil case in which there is a strong presumption that the discontinuing party will pay the other party’s costs (see CPR rule 38.6), when a regulatory function is being exercised a costs order will generally only be made on a withdrawal if the regulator’s conduct justifies it, e.g. if no order for costs would result in substantial hardship for the other party, or if the regulatory function was exercised in bad faith or unreasonably.[22]Other cases to which I have been referred, including R (Cambridge City Council) v Alex Nestling Limited [2006] EWHC 1374 (Admin) and Chief Constable of Warwickshire Police v Young [2014] EWHC 4213 (Admin), have endorsed and followed these principles, without substantively adding to them.

The Costs Application

[23]In this case, the Respondent applied claiming £3,189.60 against the Appellant, i.e. all of the costs he had incurred in dealing with SOPO application.[24]The case stated indicates that, before the magistrates, on behalf of the Respondent it was submitted that, as this was a civil matter, costs should follow the event. It was submitted by Mr Goucher on behalf of the Chief Constable that the correct power under which costs might be awarded in the circumstances of this case was section 52 of the 1971 Act. The case stated sets out the arguments as Mr Goucher put them, as follows:
“He referred the court to the cases of Nestling and Booth… and stated costs did not routinely follow the event. He said the onus was on the Defendant to show the Chief Constable had acted unreasonably in the proceedings. Mr Goucher explained the reason for the withdrawal of the application for the SOPO was that Mr MT had moved out of the area and as such the Chief Constable had not acted unreasonably. It is our understanding however that a SOPO is not restricted to a geographical area; Mr MT lives on a canal boat and this could have returned to Warwickshire at any time. The application was therefore withdrawn without evidence being tested.”
[25]In seeking a case stated, the Appellant raised two questions that he wished the justices to put to this court for consideration, which indeed they adopted. In respect of each of those questions, the case stated says this (Mr Coyle being the Respondent’s legal representative before the magistrates):
“(i) Did the Magistrates properly exercise their discretion to award costs against the Defendant? We considered section 64 of the Magistrates’ Courts Act 1980 and section 52 of the Courts Act 1971. We also considered the case law relied upon. We believed section 52 gave us the authority to consider the application for costs and we believe it just and reasonable to grant the costs against the Chief Constable of Warwickshire in full. Mr MT had instructed solicitors to represent him. Costs were incurred by him in preparing to defend an application that was subsequently withdrawn. We consider it reasonable for Mr MT to recover those costs from the Complainant. (ii) If so, did the Magistrates properly undertake an assessment of quantum of costs before awarding them in full? We were provided with a Schedule of Costs within Mr Coyle’s application. Mr Coyle’s hourly rate was stated to be £160 per hour plus VAT. The preparation and attendance time for the hearing on 4 March appeared to the court to be reasonable. Similarly the attendance with Mr MT on 15 May and preparation time for what was to be a fully contested hearing on 4 June also appeared to be reasonable. We therefore awarded the costs sought in full.”

The Grounds of Challenge: Discussion and Conclusion

[26]The Respondent has not appeared at this hearing; indeed, he has not responded to this appeal in any way. The appeal was originally sent to his solicitors, but they returned it, saying that their instructions had been terminated. As I have indicated, the Respondent has been known to live for periods on a canal barge. However, the police have made enquiries, which have identified a house in Rugby, where he apparently resides with his girlfriend. That address is, at least, his last known address. The appeal documents were served on him there, by post. I am satisfied that they have been properly served on the Respondent, and that this appeal has been brought to his attention.[27]Before me, Mr Nuttall for the Appellant submits that the magistrates erred in their approach to the question of costs, on the following basis. i) In making the SOPO application, the Appellant was carrying out a regulatory function in the public interest. The principles set out in Booth and Perinpanathan consequently apply. ii) On the withdrawal of the application, the default position was therefore no order for costs. iii) The magistrates failed to grapple with the issue of whether there were any circumstances in this case such that that usual order should not apply. iv) There was no evidence that the Respondent would be caused substantial hardship by there being no order for costs. v) The application for a SOPO was made upon apparently sound evidence from a number of witnesses. On that evidence, the application stood, at least, a real prospect of success. The application was withdrawn because the Respondent, in breach of the terms of his licence, moved address without alerting his supervising officer. Under section 104(5) of the 2003 Act, a SOPO application can only be made if the object of the application resides in the applicant police chief’s area. Although the Respondent lived in the Appellant’s area at the time the complaint was made and summons issued, the Respondent having moved out of that area(a) it was possible that the Respondent would take the point that no order could be made in the light of section 104(5),(b) it was possible the magistrates might consider that a SOPO should not be made and(c) in any event, the Appellant could not arguably have been acting unreasonably by withdrawing the application as he did.[28]I consider Mr Nuttall’s submissions overwhelmingly persuasive.[29]The SOPO application having been withdrawn by the Appellant, the magistrates’ court had the power to award costs against the Appellant, not under the general costs powers of the CPR, but under section 52 of the 1971 Act. However, in exercising that discretion, the justices were required to apply the principles set out in Booth and Perinpanathan, i.e. the usual order was that there should be no order for costs, but that could be displaced if (for example) making no order for costs would result in substantial hardship to the Respondent, or the Appellant had acted dishonestly or unreasonably.[30]There was no suggestion made before the magistrates – nor is there any suggestion now – that no order would result in such hardship.[31]In respect of the Appellant’s conduct, the magistrates said that it was reasonable for the Respondent to recover his costs from the Appellant because the Appellant had made the application, and the Respondent had incurred costs in instructing solicitors to defend the application which was then withdrawn. However, that is to view this matter as a simple civil action, in respect of which costs following the event is the usual rule, and costs against a discontinuing party is a very firm principle. Under section 52, where an authority such as the Appellant is exercising a regulatory function, it is not a compelling reason to award costs against him simply because he has commenced an application against an individual and that application has either been dismissed or discontinued/withdrawn. The authority’s actions in bringing or continuing the application must be dishonest or unreasonable, or must otherwise be extraordinary so as to displace the usual order. There is no evidential basis for the suggestion that the Appellant acted dishonestly or abusively in bringing the application; nor has the Respondent ever suggested that the Appellant did act in such a manner. Nor is there any basis for the proposition that he acted unreasonably in bringing the application: at the time the application was brought, there was a sound evidential basis for doing so. The Appellant did not arguably act unreasonably in making the application. Nor was it unreasonable for him to withdraw the application after the Respondent had left his area. Whilst it is true that, once made, a SOPO applies across geographical boundaries, given the terms of section 104(5) of the 2003 Act, in all the circumstances of this case, it was reasonably open to the Appellant to withdraw the application once the Respondent had moved out of his police area.[32]The magistrates gave no reason as to why they considered this case was outside the norm – or what took it there – such that an order for costs against the Appellant as a regulatory enforcer would be appropriate. On scrutiny, there is no evidence upon such a finding could properly be made.[33]For those reasons, although they formally made the costs order under section 51 of the 1971 Act, the magistrates unfortunately erred in their approach to the costs application in this case. Had their approach been the proper one – in line with the principles of Booth and Perinpanathan – they would have been bound to have concluded that, the Appellant having not acted unreasonably and there being no other good reason for departing from the usual order in relation to costs in this case, the appropriate order would have been no order.

Conclusion and Disposal

[34]Thus, I would answer Question 1 posed by the case stated, namely “Did the Magistrates properly exercise their discretion to award costs against the Appellant?”, “No”. In those circumstances, Question 2 does not arise.[35]Furthermore, for the reasons I have given, I allow this appeal. I quash the costs determination of the magistrates ordering the Appellant to pay the Respondent’s costs of this matter, and replace it with no order.