R (Director of Public Prosecutions) v Aylesbury Crown Court & Anor [2017] EWHC 2987 (Admin)

Case No CO/6177/2016[2017] EWHC 2987 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 24/11/2017
Before
LADY JUSTICE SHARP DBEMR JUSTICE JULIAN KNOWLES
Between
R (Director of Public Prosecutions)ClaimantAylesbury Crown CourtDefendantAB (Interested Party)Defendant
Mr Greg Treverton-Jones QC (instructed by CPS) for ClaimantHearing Hearing dates: 24 October 2017
Judgment
[1]This is an application by the Crown Prosecution Service (the CPS) for judicial review. It seeks an order quashing a costs order (the costs order) made against it by HH Judge Sheridan at the Aylesbury Crown Court on 14 September 2016. The costs order was made under section 19 of the Prosecution of Offences Act 1985 (the 1985 Act) and the Costs in Criminal Cases (General) Regulation 1986 (the Regulations). The judge ordered that the CPS should pay “the full costs of defence, to be taxed.”[2]The core submission made on behalf of the CPS is that the judge fell into error and acted without jurisdiction in ruling that the CPS should be liable for the actions of an expert witness instructed by it when the expert witness was an independent third party and the judge was unable to identify any unnecessary or improper act or omission. It is submitted, further, that in failing to specify the costs in the costs order, the judge acted unlawfully.[3]Neither the defendant nor the Interested Party attended the hearing before us. However the Interested Party has lodged a Statement of Grounds contesting the claim, and a short skeleton argument opposing the application.

The legal framework

[4]Section 19 (1) of the 1985 Act provides that:
“The Lord Chancellor may by regulations make provision empowering magistrates; courts, the Crown Court and the Court of Appeal, in any case where the court is satisfied that one party to criminal proceedings has incurred costs as a result of an unnecessary or improper act or omission by, or on behalf of, another party to the proceedings, to make an order as to the payment of those costs.”
[5]The relevant part of the Regulations is regulation 3. The material parts of regulation 3 provides that:
“(1) Subject to the provisions of this regulation, where at any time during criminal proceedings— … (b) the Crown Court is satisfied that costs have been incurred in respect of the proceedings by one of the parties as a result of an unnecessary or improper act or omission by, or on behalf of, another party to the proceedings, the court may, after hearing the parties, order that all or part of the costs so incurred by that party shall be paid to him by that other party. … (3) An order made under paragraph (1) shall specify the amount of costs to be paid in pursuance of the order.”
[6]The jurisdiction of the High Court to review decisions of the Crown Court is governed by sections 28(2) and 29(3) of the Senior Court Act 1981 (the 1981 Act). Section 28(2) of the 1981 Act provides that the court has no jurisdiction to review “a judgment or other decision of the Crown Court relating to trial on indictment…” Under section 29(3) of the 1981 Act (as amended by article 3(b) of the Civil Procedure (Modification of the Supreme Court Act 1981) Order 2004):
“in relation to the jurisdiction of the Crown Court, other than its jurisdiction in matters relating to trial on indictment, the High Court shall have all such jurisdiction to make mandatory, prohibiting or quashing orders as the High Court possesses in relation to the jurisdiction of an inferior court.”
Authoritative guidance as to the correct interpretation of those words was given by the House of Lords in R v Smalley [1985] 1 AC 622 and Re Sampson [1987] 1 WLR 194.[7]A preliminary point is taken by the Interested Party on jurisdiction and it is convenient to deal with it first. The submission is that because the costs order in this case related to a trial on indictment, this court has no jurisdiction to entertain this challenge for judicial review. I am satisfied however that this court has jurisdiction provided there is a jurisdictional error of sufficient gravity to take the case out of the jurisdiction of the Crown Court: see R v Crown Court at Maidstone, ex parte London Borough of Harrow [2001] 1 Cr App R 117, where it was held that where a judge has no jurisdiction to make the order he purported to make, it could not be categorised as a matter relating to a trial on indictment so as to fall within the exclusion in section 29(3) of the 1981 Act, and the order was thus amenable to judicial review. See further R (on the application of Commissioners of Customs and Excise) v The Crown Court at Leicester [2001] EWHC Admin 33 at para 17 to 22 and R (DPP) v Sheffield Crown Court [2014] 1 WLR 4639, where it was held that a jurisdictional error by the Crown Court in relation to an order for costs made by the Crown Court under section 19 of the 1985 Act was amenable to judicial review.[8]Also, in R (M) v Kingston Crown Court [2015] 1 Cr App R , the Court said at para 32:
“…there is a binding decision to the effect that, where an order is made relating to a trial on indictment, nonetheless it may be quashed in circumstances where the defect is so severe that it deprived the court below of jurisdiction to make it … The question is whether there is a jurisdictional error of such gravity as to take the case out of the jurisdiction of the Crown Court..”
[9]Mr Treverton-Jones QC for the claimant has drawn our attention to paras 7-10 and para 7-12 of the current edition of Archbold, where it is suggested that there is a tension between the decisions to which I have referred and the decision in Hunter v Crown Court at Newcastle [2013] EWHC 191 (Admin); [2014] QB 94. It is unnecessary to refer to the facts in Hunter. It is sufficient to note that the decision in Maidstone Crown Court was not cited to the court in Hunter, nor did the court consider the jurisdictional route out of the section 28(2) ‘bar’. In contrast, the court in Sheffield did refer to Hunter but nonetheless concluded in unambiguous terms that such a jurisdictional route was available. In Sheffield the judge decided to award costs against the CPS because he disapproved of the decision to prosecute. Lord Thomas of Cwmgiedd CJ, giving the judgment of the court (Elias LJ and Mitting J) said:
“23 In R v Maidstone Crown Court, Ex p Harrow London Borough Council [2000] QB 719 Mitchell J set out the applicable principles as to whether the decision under challenge was a decision made without jurisdiction in the context of section 28(2) and section 29(3) of the 1981 Act. He concluded, and we agree, that if there was no jurisdiction for the judge to make the order under section 19 of the 1985 Act, no question could arise as to the lack of this court's jurisdiction under section 28(2) of the 1981 Act to set aside the order of the judge. 24 In our judgment for the reasons we have set out the judge had no jurisdiction to make the order he did. It follows therefore that this court has jurisdiction and can quash that part of the order awarding costs against the CPS.”

The background facts

[10]The Interested Party was arrested at his mother’s address on 2June 2015, on suspicion of possession of indecent images. A search of the property was carried out, and various items of computer equipment were seized. He was interviewed and denied being in possession of such images. He stated that someone he had met online on a gay website had sent some images to him, that he realised that they were illegal, and that he had deleted them within minutes of their receipt. He accepted that there were other pornographic images on his computer, but stated that these were not of children.[11]The Crown instructed an expert witness, Mr Wileman, a senior digital forensic technician at Disklabs in Staffordshire, an independent forensic data consultancy, to examine the Interested Party’s computer equipment and to prepare a report for use in criminal proceedings. He examined the hard drive of a Dell computer taken from the Interested Party’s address, and produced a report and summary of evidence. He concluded that there were 123 indecent images of children, of which 122 were inaccessible to the user of the machine. The exception was a category A “Images involving penetrative activity and images involving sexual activity with an animal or sadism.” image, which was stated to be accessible. The expert’s examination took place on 2 September 2015, and his CJA statement was dated 22February 2016.[12]The Interested Party was charged on 12 May 2016, and appeared before the magistrates’ court on 21June 2016. He was then charged on indictment with one offence of possessing an indecent image of a child, contrary to section 160 (1) of the Criminal Justice Act 1988, and six counts of making indecent images of children between 2 September 2010 and 2 June 2015, contrary to section 1 of the Protection of Children Act 1988. The Interested Party was arraigned at the Crown Court on 19 July 2016, and pleaded not guilty to all counts.[13]In due course the Interested Party’s solicitors instructed an expert, a Mr Watts of Griffin Forensics Ltd, who produced a report dated 16 August 2016. He records in his report that he sought clarification from Mr Wileman in respect of the location of the image which formed the possession count on the indictment:
“On checking, the prosecution expert informed me that in fact this IIOC Indecent Image of a Child had been deleted and was therefore not in the possession of the Defendant.”
Mr Watts concluded that no indecent images of children were found to have been saved anywhere on the computer’s hard disk drive, and that the only pictures that were identified were either deleted or in system-created areas to which the user had no access.[14]Mr Watts sought Mr Wileman’s comments upon his report. On 19 August 2016, Mr Wileman sent an email that said:
“There are no areas of disagreement. The one image I identified as “accessible” was in fact inside a system file and can be discounted.”
Following disclosure of Mr Watts’ report, the Crown decided to offer no evidence on any of the counts against the Interested Party (a man who was and is of good character).

The costs application

[15]An application was made by the Defence for payment of the entirety of the Interested Party’s legal costs under section 19 of the 1985 Act.[16]Skeleton Arguments were exchanged, and the matter came on for hearing before the judge on 14 September 2016. The case for the Interested Party was that Mr Wileman’s error was the result of “insufficient care”. We have been provided with the transcript of the hearing. It is apparent from that hearing and his ruling, that the Judge attributed no blame to the Crown Prosecution Service. He held however that the Crown was “indivisible in terms of the parties that they rely upon.” He awarded the defence their costs “with a heavy heart” on the basis that “Equality of arms is a very important point, and if one side can recover their costs when there is an error by the other side, I cannot see why it is not so the other way round, and I don’t think it is for the judge to start adding third parties.” He also encouraged an appeal to the Court of Appeal, although no appeal is available to the Crown against a section 19 order.

The submissions of the parties

[17]I have already summarised the central submissions made by the CPS. What is said is that the judge was wrong to rule that the Crown and the expert witness were indivisible. Even if the judge was right about that however, he could only make an order under section 19 of the 1985 Act if the expert had made a clear and stark error. But there was no investigation of the error made in this case, let alone a finding that it amounted to an improper act, within the meaning of the phrase as explained in the authorities. It follows that there was no evidence to support such a finding. The error was – to put it at its highest - a negligent mistake, which fell far short of impropriety. In any event, the judge never addressed the correct question; his approach, as is clear from the transcript, was wrongly influenced by his inability to make an order that the defendant, as the Interested Party then was, should have his costs out of central funds. Finally, it is argued that there is a further and discrete ground for quashing the costs order. Regulation 3(3) requires the judge to make the assessment of costs and then to specify the amount to be paid. It was not open to the judge to make the costs order in the form that he did: the jurisdiction to fix the amount of costs cannot be outsourced to a costs judge.[18]In written submissions the Interested Party submits that in the absence of binding authority on the point, the judge was entitled to regard the expert as “part of the Crown” for the purposes of the costs application. In the alternative, an improper act or omission was committed by the CPS itself: the finding of only one accessible image among the 122 recovered from the Interested Party’s computer was anomalous, and that this anomaly should have provoked an inquiry of its expert by the CPS. Further, if the order in the form made was defective, then the matter should be remitted to the Crown Court for rectification.

Discussion

[19]I start with the issue of indivisibility. The Crown Court only has jurisdiction to order a party to pay the costs of another party to the proceedings if those costs have been incurred as a result of the improper or unnecessary act or omission “by or on behalf of” that party: see regulation 3(1)(b). The material words here are “on behalf of”.[20]An expert may be instructed by the CPS and indeed, it is common to say that an expert called at trial, is called by the Crown or the defence as the case may be or gives evidence on their behalf. The relationship with an expert is however a contractual one, not one of agency; and the mere fact of the contractual relationship does not make the CPS responsible for the expert’s acts or omissions for the purposes of Regulation 3, any more than the CPS would be responsible for the conduct of a witness of fact who, for example, having given a witness statement supporting the Crown’s case, refuses to cooperate or answer questions, or recants his or her evidence, so that a trial has to be aborted. In short, expert witnesses in a criminal trial do not give their evidence or act, “on behalf of” the CPS. Nor are they to be regarded as “part of the Crown”. Indeed it would be antithetical to the duty of an expert if that were to be the case. As the relevant provisions of the Criminal Procedure Rules make clear, an expert is an independent witness, or third party for this purpose, whose principal duty is owed to the Court, not to those instructing him: see Criminal Procedure Rules, rule 19.2 which provides as follows:
“19.2. Expert’s duty to the court (1) An expert must help the court to achieve the overriding objective— (a) by giving opinion which is— (i) objective and unbiased, and (ii) within the expert’s area or areas of expertise; and (b) by actively assisting the court in fulfilling its duty of case management under rule 3.2, in particular by— (i) complying with directions made by the court, and (ii) at once informing the court of any significant failure (by the expert or another) to take any step required by such a direction. (2) This duty overrides any obligation to the person from whom the expert receives instructions or by whom the expert is paid.”
[21]It is to be noted that the court does have jurisdiction under section 19B of the 1985 Act to make a third party costs order, but the threshold of serious misconduct in such a case is a very high one, and this was not the provision under which costs were awarded in this case.[22]The position of an expert witness instructed by the CPS is therefore to be distinguished from that of the police and the CPS who are two arms of the Crown and therefore can be regarded as indivisible for these purposes: see R (on the application of Maninder Singh) v Ealing Magistrates’ Court [2014] EWHC 1443 (Admin), where the Divisional Court (Beatson LJ and Bean J) said this at para 4:
“All too often, when a mistake is made in the preparation or conduct of a CPS prosecution, the police and the CPS blame one another. But for the purposes of section 19 no distinction can be drawn between them: the “party” on the other side from the accused in such a case is the Crown.”
[23]There may of course be circumstances where the party instructing an expert bears an individual responsibility for an act or omission relating to that witness sufficient to trigger the costs jurisdiction of the court under section 19; but that is a very different matter. It would be unwise to be overly proscriptive about the circumstances in which such a responsibility might arise. However, such an issue was raised in R v. Cornish (Errol); R. v Maidstone and Tunbridge Wells N.H.S. Trust [2016] EWHC 779 (QB); [2016] Crim LR 560 (Crown Court). In that case, the prosecution of an NHS Trust for the corporate manslaughter of one of its patients had been halted at half-time by the trial judge (Coulson J) on the ground that there was no case to answer. The Crown’s case (relating to the appointment and appraisal of two of the treating anaesthetists) was founded on the evidence of an expert, of whom Coulson J was extremely critical. However, Coulson J subsequently rejected an application by the defendant Trust for its costs under section 19 of the 1985 Act, and Regulation 3, after a careful review of the authorities and the principles to be applied in such an application. He held in summary that the evidence of the expert was not plainly wrong in a way that should have been obvious to the Crown: see paras 19, and 32 to 36. In my view, that was an appropriate test to apply.[24]It follows from the above that the suggestion by the Interested Party that the judge’s order was somehow justified by a failure on the part of the CPS effectively to supervise the expert is misconceived. This was not the way the case was put to

the judge below where it was simply said that:

“In wrongly stating in his report that there was an accessible Cat ‘A’ indecent image, the Crown’s expert committed an unnecessary, or improper act within the meaning of section 19.”
Nor was this what the judge found. More importantly, it misunderstands the respective roles of the CPS and the expert. As Mr Treverton-Jones points out, an expert has an expertise which the prosecuting authorities do not have; hence the need to instruct him. Once the expert in this case had given his opinion that that the image in question was accessible, there was nothing to suggest a need to interrogate the expert; or that he was plainly wrong in a way that should have been obvious to the Crown: see further paras 25 to 29 below. In the event, once the error was acknowledged by the expert the prosecution was, quite properly, brought to an end.[25]Even if, contrary to the view expressed above, the expert’s failure to recognise that the image was inaccessible could rationally be described as an act “by on behalf of” the CPS, there was no proper basis for concluding it was “improper” within the meaning of section 19 of the 1985 Act and regulation 3.[26]It is to be noted that there has been some judicial controversy as to the meaning of “improper”. In DPP v. Denning (1992) 94 Cr App R 272 Nolan LJ expressed the meaning of “improper” in the context ofregulation 3 as follows at p280:
“[it]does not necessarily connote some grave impropriety. Used, as it is, in conjunction with the word ‘unnecessary’, it is … intended to cover an act or omission which would not have occurred if the party concerned had conducted his case properly”
[27]In R v Counsell (Crown Court – Simon J) and R v Sheffield Crown Court ex parte Goodison [2015] 1 Cr.App.R. 23 (Divisional Court), the Court preferred the more stringent meaning attributed to “improper” in wasted costs cases in the civil jurisdiction as formulated by Sir Thomas Bingham MR in Ridehalgh v Horsefeld [1994] Ch 205. The authorities were reviewed by Hickinbottom J (as he then was) in R. v. Evans (Eric) (No. 2); Serious Fraud Office v. Evans (No. 2) [2015] 1 W.L.R. 3595, (Crown Court and QBD). The judge followed Denning and declined to follow Counsell and Goodison. Most recently in R. v. Cornish, supra,Coulson J., having reviewed the authorities, while following Denning, summarised their effect at para 19 as follows: a) simply because a prosecution fails, even if the defendant is found to have no case to answer, this does not of itself overcome the threshold criteria of section 19; b) improper conduct means an act or omission that would not have occurred if the party concerned had conducted his case properly; the test is one of impropriety, not merely unreasonableness; the conduct of the prosecution must be starkly improper, such that no great investigation into the facts or decision-making process is necessary to establish it; c) it is important that section 19 applications are not used to attack decisions to prosecute by way of a collateral challenge, and the courts must be ever vigilant to avoid any temptation to impose too high a burden or standard on a public prosecuting authority in respect of prosecution decisions; d) accordingly, the granting of a section 19 application will be “very rare” and will be “restricted to those exceptional cases where the prosecution [have] made a clear and stark error as a result of which a defendant has incurred costs for which it is appropriate to compensate him.[28]Mr Treverton-Jones also draws attention to the terms of section 19A of the 1985 Act, where jurisdiction is conferred upon the Court to make a wasted costs order against legal representatives where costs in criminal proceedings have been incurred as a result of “any improper, unreasonable or negligent act or omission on the part of any representative or any employee of a representative”. He submits, and I agree, that it follows that “improper” must mean something different and more serious than, either negligence or unreasonableness, as these terms were available had the Parliamentary draftsman wished to insert them into section 19.[29]Be that as it may, in this case there was nothing before the judge by way of expert evidence from the defence expert, for example, which could have justified the epithet “improper”. The way it was put in the defence submissions was that the expert had paid “insufficient care”. The prosecution’s expert’s explanation, set out in the defence’s Skeleton Argument before the judge, was that he had missed the fact that the image in question was in a “Thumbs.db” file and that “I missed that in the counting process”. This cannot be characterised as a clear and stark error, adopting Coulson J’s formulation, or at least not in the absence of a qualitative assessment of how serious an error this was. We simply do not know, and more importantly the judge did not know, whether this is an easy mistake to make, or whether it is the sort of mistake a first week trainee computer expert would not be expected to make.[30]In any event the judge simply made no findings of fact, nor did he embark upon any enquiry, let alone one that was sufficient to allow a conclusion about propriety to be reached, whatever formulation of the term “improper” is adopted. The judge recorded the defence suggestion that the expert had gone “badly wrong” but he did not conduct an evaluation of what the expert did nor did he reach any reasoned conclusion on the issue. On the contrary, he made it clear that he had decided to make the costs order without attributing any blame to the CPS, out of sympathy for the defendant who could not recover his costs out of central funds, and who would otherwise have to pay the costs of discovering the flaw in the case against him.[31]This was not a permissible approach. In October 2012 Parliament substantially curtailed the ability of an acquitted defendant to seek an order for payment of his or her costs out of central funds. This legislative change did not however alter the statutory test in regulation 3.[32]Quite apart from these errors in the judge’s approach, his failure to carry out the assessment himself and to specify the amount to be paid meant that the order was ultra vires the Regulations. As I have said, he ordered the “Crown to pay full costs of defence, to be taxed”.[33]As Lord Woolf of Barnes LCJ said in the Leicester case, at para 16 there is a formal structure to be followed before an order under regulation 3 is made:
“An examination of the language of the Regulations makes clear that the proper exercise of the jurisdiction under Regulation 3 requires, first the judge to consider whether there has been an unnecessary or improper act or omission. Secondly, the judge has to consider whether costs have been incurred as a result of that unnecessary act or omission by one of the parties. Thirdly, the court has to consider whether it will as a matter of discretion order all or part of the costs so incurred to be paid to the other party by the party in default. It is implicit in the last stage that, before an order is made, the judge is required to identify the costs so incurred (that is the costs incurred as a result of the unnecessary or improper act or omission). Having performed these exercises, finally the judge will have to specify the amount to be paid. There is therefore a formal structure to be followed before an order is made.” (Emphasis added)
[34]These requirements in the regulations are also to be found in the Criminal Procedure Rules, 45.8(7) to (10), as amended by the Criminal Procedure (Amendment) Rules 2016 which came into force on the 4th April 2016, which provide as follows:
“(7) If the court makes an order, it must assess the amount itself. (8) To help assess the amount, the court may direct an enquiry by— (a) the Lord Chancellor, where the assessment is by a magistrates’ court or by the Crown Court; or (b) the Registrar, where the assessment is by the Court of Appeal. (9) In deciding whether to direct such an enquiry, the court must have regard to all the circumstances including— (a) any agreement between the parties about the amount to be paid; (b) the amount likely to be allowed; (c) the delay and expense that may be incurred in the conduct of the enquiry; and (d) the particular complexity of the assessment, or the difficulty or novelty of any aspect of the assessment. (10) If the court directs such an enquiry— (a) paragraphs (3) to (8) inclusive of rule 45.11 (assessment and re-assessment) apply as if that enquiry were an assessment under that rule (but rules 45.12 (appeal to a costs judge) and 45.13 (appeal to a High Court judge) do not apply); (b) the authority that carries out the enquiry must serve its conclusions on the court officer as soon as reasonably practicable after following that procedure; and (c) the court must then assess the amount to be paid.”
See further Evans v SFO (No. 2) [2015] 3 Costs LR 557 at paras 8 to 18, and para 20(i); In Re A Barrister (Wasted Costs Order) (No 1 of 1991) [1993] QB 293 (a case concerned with different Regulations but the same wording “… the court shall specify the amount of such costs.”)[35]In my view, the various flaws in the judge’s approach and in respect of the costs order itself were of sufficient gravity to amount to jurisdictional errors. In consequence, the costs order was made without jurisdiction and must be quashed. Finally, it should be recorded that the CPS has not sought an order for costs against any other party in this case, on the basis that the application for judicial review was brought so the law on the points at issue could be clarified.[36]I agree.

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