Lympne v Director of Public Prosecutions (includes Costs) [2018] EWHC 100 (Admin)

If this Transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person.[2018] EWHC 100 (Admin)Case No CO/2341/2017
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Thursday, 30 th November 2017
Before
LORD JUSTICE SIMONMRS JUSTICE WHIPPLEB E T W E E N:
Between
LORD HOWARD OF LYMPNE AppellantDIRECTOR OF PUBLIC PROSECUTIONS Respondent
A P P E A R A N C E SMR D SONN (instructed by Sonn McMillan Walker) appeared for Appellant.MR B DOUGLAS-JONES (instructed by Crown Prosecution Service) appeared for Respondent.
J U D G M E N TSee COSTS at bottom of this judgment.

RULING ON COSTS

[1]This is an appeal by way of case stated by District Judge (Magistrates' Court) Barbara Barnes dated 22nd August 2017. The relevant facts were that a car was recorded as travelling at 37 miles an hour on a road with a 30 miles an hour speed limit shortly before 1.00 pm on 24th January 2016 on a road in Lewisham, SE13. The registered keeper of the car was the appellant, Lord Howard.[2]On 1st February, a letter was sent by the Metropolitan Police (Camera Processing Unit) to the appellant at his home address seeking information as to the identity of the driver within a stipulated period of 28 days. The letter enclosed a form whose contents we will return to shortly. The letter itself contained the following words:
"In accordance with Section 172 of the Road Traffic Act 1988, I hereby require you to furnish within 28 days of the service of this form, the name and address of the driver on the date and at the time specified above or to provide any other information which may lead to the identification of the driver. ... Failure to respond to this form in writing will render you liable to prosecution."
[3]On 29th February, a reminder was sent. This too enclosed a form; and this was filled in by the appellant. The form was intended to elicit information as to the identity of the driver.[4]Section 172 of the Road Traffic Act 1988 is in the following terms:
"(1) This section applies- ... (c) to any offence against any other enactment relating to the use of vehicles on roads ..."
[5]We add that speeding is an offence covered by s.172(1)(c).[6]The section continues:
"(2) Where the driver of a vehicle is alleged to be guilty of an offence to which this section applies- (a) the person keeping the vehicle shall give such information as to the identity of the driver as may be required to give by or on behalf of a chief officer of police and (b) any other person shall if required as stated above give any information which it is in his power to give and may lead to the identification of the driver. (3) Subject to the following provisions, a person who fails to comply with a requirement under subsection (2) above shall be guilty of an offence. (4) A person shall not be guilty of an offence by virtue of paragraph (a) of subsection (2) above if he shows that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was."
[7]Subsection 172 further provides, so far as is material:
"(7) A requirement under subsection (2) may be made by a written notice served by post; and where it is so made- (a) it shall have effect as a requirement to give information within the period of 28 days beginning with the day on which the notice is served ..."
[8]The form that accompanied the letter was a standard form which required the recipient "to complete and sign one of the three parts below in block capitals" and return the form.[9]The three parts were: Part 1, "I am a person to whom this form is addressed and was the driver"; Part 2, "If you were NOT the driver at the time of the alleged offence, please enter the driver's details and complete this part only"; and Part 3, "If you were not the keeper or the owner of the vehicle at the time of the alleged offence, please enter the keeper or owner details and complete this section."[10]Part 1 contained the following additional words, "I was the driver at the time shown overleaf. I confirm the following details." Beneath these words were boxes to be filled in in block capitals so that they could be read by a computer. Among these are "title", "surname", "forename", "address", "telephone number", "driving licence number" and "date of birth".[11]The appellant filled in Part 1, apart from the driver licence number, but struck through the words, "I was the driver at the time shown overleaf", adding in manuscript, "The driver was my wife or myself. We don't know which." He signed and dated the form on 3rd March 2017 and returned it.[12]Section 12(1) of the Road Traffic Offenders Act 1988:
"(1) Where ... (a) it is proved to the satisfaction of the court, ... that a requirement under section 172(2) of the Road Traffic Act 1988 to give information as to the identity of the driver of a particular vehicle on the particular occasion to which the information relates has been served on the accused by post, and (b) a statement in writing is produced to the court purporting to be signed by the accused that the accused was the driver of that vehicle on that occasion, the court may accept that statement as evidence that the accused was the driver of that vehicle on that occasion."
[13]It follows that if someone in receipt of a notice returns it but without signing it, he may be prosecuted under s.172(3) for contravening s.172(2), see for example Francis v Director of Public Prosecutions [2004] EWHC 591 (Admin) at [7]. That was not the situation in the present case. The form was signed by the appellant. He did not fill in part 2 which contained the additional words, "I was not the driver of the vehicle at the time shown overleaf. The driver/hirer was:"[14]The appellant was prosecuted for the offence of failing to give information relating to the identification of the driver of the vehicle when required contrary to s.172(3) of the Road Traffic Act and sch.2 of the Road Traffic Offenders Act 1988. The charge was that on 4th March, presumably the date the form was received, the appellant failed to give information relating to the identification of the driver of the vehicle who was alleged to be guilty of the offence.[15]On 30th November 2016, the District Judge found that the appellant had committed an offence under s.172(3). She noted the prosecution evidence was not in dispute. At [3] of the case stated she found as follows:
"3. The prosecution evidence was not in dispute. I found that the appellant was the registered keeper/owner of the vehicle and that the Notice of Prosecution and the Reminder Letter had been promptly served on him. I found that he had completed the form at part 1 as being the person to whom the Form was addressed and he gave the required details of his own name, address and date of birth. I found that although he made mention of his wife being a possible driver, at no time did he provide her contact details such as her full name and address and Part 2 of the form which allowed the details of other drivers to be noted was blank. I found that the defendant and his witness were credible witnesses and they could not remember who was driving the car at the relevant time. I made no finding on whether reasonable diligence had been used to identify the driver. 4. The appellant contended that he had made out a defence under section 172(4) of the Road Traffic Act 1998 in that he did not know, and could not with reasonable diligence have ascertained, who the driver was. He said that neither he nor his wife could remember who was driving the car at the time of the offence and they had done their best to remember. 5. The prosecution contended that the relevant form as required under section 172 of the Road Traffic Act 1988 had been returned by the appellant, but it was not properly completed as it lacked the information as to the identity of the driver as was required and which may have led to the identification of the driver as he only made reference to his wife without giving details of her full name and address. They also contended that the appellant had not made sufficient efforts or used reasonable diligence to ascertain who the driver of the vehicle was at the relevant time."
[16]The District Judge referred to two cases: Flegg v Justices of the Peace for the New Forest Local Justice Area [2006] EWHC 396 (Admin) and Marshall v Crown Prosecution Service [2015] EWHC 2333 (Admin). At para.8, (there is no para.7), the District Judge found that the appellant had failed to comply with s.172(2) of the 1988 Act:
"... because he had failed to give such information as to the identity of the driver as he may be required to give by or on behalf of a chief officer of police. In this case, although he had made reference to his wife, at no time did he give the required information of the name and address of that individual, details which he could have given in Part 2 of the form. I found that it was not the duty of the Metropolitan Police to make a specific request of the defendant for those details over and above the requirement included in Part 2 of the form. 9. I found that in light of the failure to give this information the test of reasonable diligence did not fall to be considered because the initial requirement under s.172(2) had not been complied with."
The argument[17]For the appellant Mr Sonn submitted that the District Judge was in error in her conclusion. In short, he submitted that the obligation to fill in Part 2 did not arise because the appellant was not in a position to say that he was not the driver at the time of the alleged offence, nor could he say that his wife was the driver at the time. While the statutory scheme by s.172(4) plainly contemplates that a driver may not know who the driver was at the time, the form presents a choice either to fill in the form saying that the recipient was the driver, Part 1, or to fill in the form saying someone else was the driver, Part 2. Even if the appellant had filled in his wife's details in Part 2, it would not have led to the identification of the driver since she was in the same position as the appellant of not being able to recall who was the driver at the material time. He had in fact identified the issue and identified his wife or himself as possible drivers.[18]Mr Douglas Jones, for the respondent, submitted that the clear purpose of s.172 is to elicit information as to the identity of the driver of the vehicle at the time of the offence and that s.172(2) empowers a chief officer of police to require information by means of a written notice and by implication "to make reasonable requirements ascribing how the person to whom the notice is addressed shall respond", see Francis v Director of Public Prosecutions above at para.17.[19]When a keeper of a car believes that he was not the driver at the time of the driving offence and knows that only one person could have been the driver, he is obliged, says Mr Douglas-Jones to give such information as will lead to the identification of the driver, see Mohindra v Director of Public Prosecutions [2004] EWHC 490 (Admin) at para.10 and 14. The District Judge was right to find that the appellant had not, in the words of s.172(2)(a) provided, "such information as to the identity of the driver as he may be required to give." He was required to give the title, surname, forename, address and telephone of the driver. Where there were two possible drivers, he was required to give that information in relation to both of them.[20]In his oral submissions before us this morning, he added that the endorsement made in manuscript by the appellant was not sufficient, since it did not sufficiently identify his wife as a potential driver giving such details as might be required under Part 2. Discussion and Conclusion[21]In Marshall v CPS [2015] EWHC 2333 (Admin), Kenneth Parker J, giving the leading judgment of the Divisional Court, described the situation in a way that has a resonance with the facts of the present case at para.33:
"It is not uncommon for husband and wife, or for others in a family or other enduring relationship, to share the use of a particular motor vehicle ... I would also surmise that the scenario presented by the circumstances of this present case is also not uncommon, namely that where more than one individual uses a motor vehicle it may not be immediately or obviously clear who was in fact driving the vehicle at the time of an alleged moving traffic offence. However, if the driver cannot with reasonable certainty be identified he or she cannot be effectively prosecuted for the traffic offence. It is also all too easy to see therefore that shared use of a vehicle potentially offers significant scope for committing what could well be in a particular case a serious moving traffic offence, but with an impunity from appropriate criminal sanctions, including of course a period of disqualification from driving."
[22]We have been referred to a number of cases which throw some light on the approach adopted by the Courts where challenges are made to magistrates' decisions in analogous cases. However, care must be taken in applying what is said in these cases, since the documentation relied on by the prosecution varies, as do the facts of the cases.[23]The first of the cases is Boss v Measures [1990] RTR 26. In that case, the primary issue was whether there was an implicit statutory intent under the previous statutory regime, s.112 of the Road Traffic Regulation Act 1984, that a request for information could provide for reasonable instructions as to the manner in which such information was to be provided, specifically to whom it is to be provided, when and by what means, see Woolf LJ at p.31F and Saville J at 32G, as they then were. In that case, telephone information was not in compliance with the terms of the request for information.[24]In Director of Public Prosecutions v Broomfield [2002] EWHC 1962 (Admin), the defendant had failed to complete, sign or return the form that he was sent, but informed the prosecuting authority by telephone that he did not have both parts of his driving licence. He was prosecuted under s.172(3) for failure to comply with a request. He was acquitted in the Crown Court, but on appeal by the prosecutor, HH Judge Wilkie QC, as he then was, held, following Boss v Measures, that stipulations in the notice as to how the information be provided and non-compliance with the terms of the request for information rendered the defendant guilty of an offence under s.172(3) of the Act. The Judge added that the importance of the notice being signed was that under s.12(1) of the Road Traffic Offenders Act 1988 the signature on the notice was prima facie proof that the owner was the driver of the car at the time.[25]The facts of Jones v Director of Public Prosecutions [2004] EWHC 236 (Admin) are similar to the present case with a requirement in the form to state who the driver was if the addressee was not himself the driver. Dr Jones returned the form unsigned with a covering letter saying that he was the owner of the car, but that it was one of six cars in a fleet used by his practice and he could not say who was driving. He added that, if there were a camera shot of the driver, he might be able to assist. He was subsequently charged on an information that he committed an offence under section 172(3). At [13], May LJ held that, although not a response to the form that he had been sent, Dr Jones's letter complied with s.172 of the Road Traffic Act 1988:
"14. Accordingly, it does seem to me, first of all, that there was absolutely no respect in which he could properly be criticised for the way in which he had dealt with this matter by means of the letter and, secondly, that so far as it went that the letter was a proper compliance with section 172(2) of the 1988 Act. 15. I say 'so far as it went' because the form required him to state the name of the person who was driving the vehicle. He did not do so, and to that extent he had failed to comply with the statutory requirement. The question, and as it seems to me the only question before the district judge, therefore was whether he had sufficiently established the defence available to him under section 172(4), that is to say that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was."
[26]In the event, the Divisional Court found that the Deputy District Judge was wrong to have rejected the applicant's s.172(4) defence on the facts.[27]Although in his skeleton argument Mr Douglas-Jones referred us to Mohindra v Director of Public Prosecutions [2004] EWHC 490 (Admin), it is a case on different points. What the information on the charge under s.172(3) needs to contain is proof that a requirement for information has been made. In the present case, no issue arises on the latter point since there is an endorsed certificate of service on the letters of 1st and 29th February 2016.[28]In Francis v Director of Public Prosecutions [2004] EWHC 591 (Admin), the form was returned by the keeper stating that he was the driver at the time, but it was not signed. The Divisional Court noted the importance of the signature as an authentication of the statement that he was the driver. In that case, since there was no signature, it was not clear who had completed the form, see [16]. The requirement of the signature was in accordance with s.172(2) and (7), see [17].[29]Flegg v Justices of the Peace for the New Forest Local Justice Area was one of the cases referred to by the District Judge in the case stated. The form that was sent via the prosecutor was similar to the form of the present case, save that there was a specific statement at the foot of Part 2, “If unable to provide driver details, please state reason overleaf."[30]The appellant had not filled in either Part 1 or Part 2, but had sent a covering letter which explained that "on the day of the alleged offence more than one person used the vehicle." In that case it was a motorcycle. He asked for photographic evidence which might enable him to provide the required information and this was sent. Subsequently, he wrote to say that he and a friend both used the motorcycle, both had studied the photographic evidence, but, "unfortunately, neither of us can recall travelling in that area on the day in question." After further exchanges, he was prosecuted for an offence under s.172(3).[31]The first argument advanced on Mr Flegg's behalf was that he was only bound to fill in the form if he knew the identity of the driver and he did not. His counsel relied on the decision in Jones v DPP, see above. The Court rejected that argument. The form required the addressee to fill in the name of the actual driver and, if he failed to do so, he was in breach of s.172(2)(a) and the only issue that arose was whether he could establish a defence under s.172(4), see [21].[32]Richards LJ, giving the leading judgment, referred to [15] of the decision in Jones and added, "it seems to me that exactly the same approach should apply in the present case". The claimant did not state the name of the person who was driving the vehicle and, thereby, failed to comply with the statutory requirement. The only question was whether he had established a defence under subsection (4)”.[33]Richards LJ then went on to consider a further point in that case, namely that the notice had specifically required the recipient to provide the driver's details "or give any information in your power which will lead to the driver's identification." The Court held that this was a lawful requirement, see [25]. On the facts of the case Mr Flegg had failed to provide the relevant information about the identity of the other driver and had provided information that was positively misleading. That was not part of the findings of the District Judge in the present case.[34]The facts of Marshall v CPS, see above, also bear some similarities to the present case. In that case, there were two people who could have been the driver of the vehicle at the time the speeding offence was committed. Mr Marshall was the recipient of the notice requiring information, although it was Mrs Marshall who was the keeper of the vehicle. Mr Marshall responded to the notice by saying that he was unaware of who the driver was. It was either him or his wife. He then gave the relevant particulars of his wife. She was then issued with a materially similar notice and replied, "I do not know for sure who the driver was; either me or my husband." Following this, she was charged with an offence under s.172(3).[35]The magistrates convicted Mrs Marshall of the offence on the basis she had failed to show that she, "did not know and could not with reasonable diligence ascertain who the driver was." As is clear from the questions for the Court in the case stated, see [18], the decision in that case turned on whether Mrs Marshall had established the defence under s.172(4). It was in that context Kenneth Parker J at [35] referred to the earlier decision of Atkinson v Director of Public Prosecutions [2011] EWHC 3363 (Admin):
"With that background, it is in my view understandable and indeed commendable that a Magistrates' Court trying an alleged offence under s.172(3) of the Act should examine with the utmost care and rigor whether the alleged offender himself or herself did in fact exercise reasonable diligence with a view to ascertaining the identity of the driver at the time of the alleged traffic offence. If the alleged offender himself or herself has not exercised such reasonable diligence it is likely, to put the matter at its lowest, to be extremely difficult to persuade the court that even if reasonable diligence had been deployed the exercise would have been futile and would have led nowhere in the search for the driver. This is fully supported by Langstaff J's analysis in Atkinson at paragraph 28."
[36]At [40] to [44], Kenneth Parker J set out how magistrates might assess a defence under s.172(4), before concluding that in the case before the Court their approach had been in accordance with the law and reasonable.[37]I would draw the following conclusions from these cases:(1) In circumstances in which the recipient of the notice contends that "he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was", see s.172(4), I would reject Mr Douglas-Jones's submission that he should fill in Part 2 of the form in its terms. In the present case, the appellant was not saying that his wife was the driver. He was saying that he did not know. The offence was not committed by failing to fill out the form correctly.(2) It would be sensible if forms sent out to keepers of vehicles contained a specific provision, as it appears some of them do, that if keepers are unable to identify the driver either under Part 1 or Part 2, they should state what immediate steps they have taken to ascertain the driver's identity. A binary choice may not be appropriate.(3) A failure or inability to identify the driver will constitute a breach of s.172(2)(a). The form requires the recipient to state the name of the person who was driving the vehicle. Here the appellant failed to do so and, to that extent, he failed to comply with the statutory requirement, see Jones and Flegg above, and had committed an offence under s.172(3) subject to establishing the defence under s.172(4).(4) Where a recipient is unable to say he was driving at the time, it is plainly in the interests of both the recipient of the notice and those charged with a potential prosecution that as much information is given as soon as is possible as to the steps taken in the exercise of reasonable diligence to ascertain the identity of the driver and why, despite the exercise of such diligence, the recipient is still unable to do so.(5) In the present case, the appellant endorsed the form, "The driver was myself or my wife. We do not know which." It did not say what steps had been taken to identify which of them it was, nor did it provide the sort details that might reasonably be expected to identify his wife: for example, her name and driving licence number.[38]I would therefore conclude that by not naming the driver the appellant had committed an offence under s.172(3), subject to his defence under s.172(4). Unfortunately, the District Judge did not consider that defence. Indeed, she specifically made no finding as to whether with reasonable diligence the appellant could have ascertained who the driver of the vehicle was.[39]The problem in this case appears to have arisen because the form was sent to the appellant under cover of a letter which required him to identify the driver or to provide any other information which may lead to the identification of the driver. Yet, the form which accompanied that letter only permitted him to provide the information relating to the driver of the car. If he could not do that, the letter required him to provide other information, but the form had no space to do that and no guidance was provided about what other information he should provide and how. The appellant could have given more details than he did about his wife, but he was not assisted by the letter and the form which lacked any space or guidance about what precisely was required. Certainly, it would not have been appropriate for him to fill in Part 2 of the form, and the District Judge was in error in suggesting that that is what he should have done.[40]It is a matter for the magistrates when considering the merits of a defence under s.172(4) to consider the extent to which the keeper has been open with the police and provided other information which may be in his or her possession about who else may have been driving when the offence was committed. This will be an important strand in the assessment of credibility.[41]The questions for this court were: (1) Was I entitled to find that the appellant had not given such information as to the identity of the driver as he was required to give by or on behalf of the chief officer of police by completing s.172 of the Road Traffic Act requirement form in the way he completed it?[42]This is in fact a composite question, to the first part of which I would answer, yes. The appellant did fail to give such information as to the identity of the driver as was required. However, the answer to the second part of the question is, no. The appellant did not fail to give that information by the manner in which he filled in the form. He filled in the form accurately in its terms.[43](2) Did I err in deciding that when the appellant said he did not know who the driver was that the only possible other drive was his wife, but then failed to provide her name and address in identification of the driver, that the statutory defence under s.172(4) could not be relied on?[44]I would answer this question, yes. There was sufficient information to identify both drivers, but it would not have been appropriate to fill in the details of the appellant's wife in Part 2 of the form, which would have been premised on his statement that the appellant was not the driver and that his wife was. The District Judge should have gone on to consider the merits of the defence under s.172(4).[45]MRS JUSTICE WHIPPLE: I agree. RULING ON COSTS Mrs Justice Whipple: Introduction[1]On Thursday 30 November 2017, this Court gave judgment following the hearing of the Appellant’s appeal by way of case stated from the magistrates’ court. We identified an error of law in the way in which the district judge had approached the Appellant’s case at first instance. The Respondent did not seek an order remitting the case to the magistrates’ court. Accordingly, we allowed the appeal. That judgment is now reported under case reference [2018] EWHC 100 (Admin).[2]At the conclusion of the hearing, the Appellant asked for his costs to be paid by the Respondent. The Appellant had not been represented in the magistrates’ court and had not incurred any costs there. He was represented by Mr Sonn, solicitor-advocate, on the appeal, and it is Mr Sonn’s costs which are the subject of the present application. Certain procedural issues arose during the course of the appeal which required the case stated by the district judge to be revised, and accordingly, the costs incurred are larger than might ordinarily be expected in an appeal of this kind, which relates to a driving offence under s172 of the Road Traffic Act 1988 (failing to give information as to the identity of the driver). Mr Sonn has produced a schedule in which he claims £11,544 (inc VAT) in costs. Since that schedule was produced, he has incurred another £2,100 (inc VAT) in costs in making this application. The total now claimed is £13,644. The Respondent is a public body and such an order would, in effect, be an order for the costs to be met out of central funds.[3]Given the complexity of the costs position, which was not, for good reason, set out in either party’s skeleton prepared in advance of the appeal hearing, we directed the parties to put their costs submissions in writing. We received the Appellant’s submissions from Mr Sonn on 4 December 2017; we received the Respondent’s submissions, authored by Benjamin Douglas-Jones who appears for the Respondent on 7 December 2017, amended without objection on 21 December 2017; we received the Appellant’s Final Submissions by way of reply (Mr Sonn, again) on 8 January 2017.[4]Both Mr Douglas-Jones and Mr Sonn invited us to have a hearing to determine the issue of costs. But it appeared disproportionate to hold a further hearing solely on the issue of costs and we have determined the application on the basis of the parties’ written submissions only.

The rival submissions

[5]The Appellant relies on s 28A(3) of the Supreme Court Act 1981 (“1981 Act”) in support of his application for costs. Section 28A deals with proceedings on case stated by the magistrates’ court or Crown Court, and s 28A(3) provides as follows (emphasis added): “(3) The High Court shall hear and determine the question arising on the case (or the case as amended) and shall—(a) reverse, affirm or amend the determination in respect of which the case has been stated; or(b) remit the matter to the magistrates' court, or the Crown Court, with the opinion of the High Court, and may make such other order in relation to the matter (including as to costs) as it thinks fit.” (a) reverse, affirm or amend the determination in respect of which the case has been stated; or (b) remit the matter to the magistrates' court, or the Crown Court, with the opinion of the High Court,[6]The Appellant notes that prior to 1 October 2012, he would have been able to rely on s 16(5) of the Prosecution of Offences Act 1985 (“1985 Act”), which provides as follows: “(5) Where— (a) any proceedings in a criminal cause or matter are determined before a Divisional Court of the Queen's Bench Division; … the court may make a defendant's costs order in favour of the accused.” (a) any proceedings in a criminal cause or matter are determined before a Divisional Court of the Queen's Bench Division; …[7]However, on 1 October 2012, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPOA”) inserted section 16A into the 1985 Act (see s 62 and Schedule 7 to LASPOA). Section 16A provides as follows: “16A Legal costs(1) A defendant's costs order may not require the payment out of central funds of an amount that includes an amount in respect of the accused's legal costs, subject to the following provisions of this section.(2) Subsection (1) does not apply where condition A, B, C or D is met.(3) Condition A is that the accused is an individual and the order is made under— (a) section 16(1), (b) section 16(3), or (c) section 16(4)(a)(ii) or (iii) or (d).(4) Condition B is that the accused is an individual and the legal costs were incurred in proceedings in a court below which were— (a) proceedings in a magistrates' court, or (b) proceedings on an appeal to the Crown Court under section 108 of the Magistrates' Courts Act 1980 (right of appeal against conviction or sentence).(5) Condition C is that the legal costs were incurred in proceedings in the Supreme Court. (5A) Condition D is that— (a) the accused is an individual, (b) the order is made under section 16(2), (c) the legal costs were incurred in relevant Crown Court proceedings, and (d) the Director of Legal Aid Casework has made a determination of financial ineligibility in relation to the accused and those proceedings (and condition D continues to be met if the determination is withdrawn). …” (a) section 16(1), (b) section 16(3), or (c) section 16(4)(a)(ii) or (iii) or (d). (a) proceedings in a magistrates' court, or (b) proceedings on an appeal to the Crown Court under section 108 of the Magistrates' Courts Act 1980 (right of appeal against conviction or sentence). (a) the accused is an individual, (b) the order is made under section 16(2), (c) the legal costs were incurred in relevant Crown Court proceedings, and (d) the Director of Legal Aid Casework has made a determination of financial ineligibility in relation to the accused and those proceedings (and condition D continues to be met if the determination is withdrawn).[8]The effect of this amending provision is that since 1 October 2012, s 16 has permitted an accused to claim out of pocket expenses only from central funds; s 16A abolished the right to claim legal costs from central funds in an ordinary case, except to the extent that any of the conditions set out in s 16A applied.[9]Mr Sonn accepts that none of the conditions in s 16A is met in this case. It follows – and is common ground - that the general prohibition in s 16A(1) prevails, and the Appellant has no right to claim his costs from central funds pursuant to the 1985 Act.[10]It is for that reason that the Appellant turns to s 28A(3) of the 1981 Act as an alternative route to recovery. Mr Sonn argues that this Court has an unfettered discretion to award costs pursuant to that provision, and invites us to exercise our discretion in this case, for the obvious reason that the Appellant has succeeded in this appeal and his costs should follow the event.[11]Mr Douglas-Jones submits that the Court lacks any power to award the Appellant his costs in this case. The Respondent is a public body, and there is no power to award costs from central funds at all in light of the LASPOA changes to the 1985 Act; alternatively, if there is power, the Court should refuse to exercise its discretion to award costs from central funds in this case.[12]So far as the vires argument is concerned, he draws our attention to the Explanatory Notes to LASPOA which make clear that the intention of that legislation was to reduce the circumstances in which a defendant’s costs order could include an amount in respect of legal costs; and that the Appellant is simply a casualty of that legislation. The relevant parts of the Explanatory Notes are as follows: “Costs in criminal cases Section 62 and Schedules 7 and 8: Costs in criminal cases 336. Subsection (1) gives effect to Schedule 7, which amends the Prosecution of Offences Act 1985 (“POA 1985”) by limiting the costs, including legal costs (that is, lawyers’ fees, charges and disbursements, including expert witness costs) that may be awarded as part of a “defendant's costs order” (“DCO”). Schedule 7 also amends the Criminal Justice Act 1972, the Criminal Justice Act 1988 (“the 1988 Act”) and the Extradition Act 2003 by limiting the payment of legal costs in certain proceedings. … Schedule 7: Costs in criminal cases 338. Section 16 of the POA 1985 enables courts in England and Wales to order the payment of amounts in respect of costs to be paid out of central funds (that is, out of money provided by Parliament) in certain circumstances. … The effect of section 16A is to limit the circumstances in which a defendant's costs order can include amounts in respect of legal costs. ... 339. Paragraph 3 of Schedule 7 inserts a new section 16A in the POA 1985. New section 16A(1) provides that a DCO may not include an amount in respect of legal costs, subject to the following provisions of that section. Section 16A(2) and (3) provide that such an amount can be awarded if the accused is an individual, as opposed to a company or other body, and the order is made(a) in the magistrates’ court,(b) on appeal to the Crown Court against a magistrates’ court conviction or sentence, or(c) in the Court of Appeal in limited circumstances relating to a defendant who has been found not guilty by reason of insanity, or has been found unfit to stand trial, or having been found unfit to stand trial, has been found to have done the act or made the omission alleged against him. Section 62 and Schedules 7 and 8: Costs in criminal cases

Schedule 7: Costs in criminal cases

[13]The Respondent argues that the limitations of s 16 and s 16A of the 1985 Act are emphasised by s 19 of the same Act, which provides as follows: 19.— Provision for orders as to costs in other circumstances. (1) 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. …[14]The regulations referred to in s 19(1) are the Costs in Criminal Cases (General) Regulations 1986 (SI 1996/1335), regulation 3 of which provides that a magistrates court, Crown Court or the Court of Appeal may make an order for costs against a party only where the costs have been incurred as a result of “an unnecessary or improper act or omission” by a party to proceedings. An example of this occurring is SFO v Evans (No 2) [2015] 1 WLR 3595 where costs incurred in the Crown Court were awarded from the point at which the applicants applied to dismiss the prosecution because no reasonable prosecutor would have contested the proceedings from that point onwards. That, Mr Douglas-Jones argues, gives a flavour of the sort of case where criminal costs may be awarded, pursuant to s 19 or indeed even if that provision is not engaged, as a more general proposition. In this case, the prosecution has done nothing unnecessary or improper, the high threshold for a costs order is simply not met.[15]Alternatively, if the Divisional Court does have power to award costs under s 28A(3) of the 1981 Act, he says that it should do so only where the particular case is “exceptional” relying on Hull v Holderness Magistrates’ Court v Darroch [2014] EWHC 4184 (Admin) which held that costs could only be awarded in exceptional cases, which he argues this case is not; alternatively, costs may be recoverable where there is evidence of “unreasonable or dishonest” behaviour by the prosecution, relying on R (Perinpanathan) v City of Westminster Magistrates Court [2010] 4 All ER 680 where the Court of Appeal suggested that a costs order relating to a successful application under the Proceedings of Crime Act 2002 could only be made in limited circumstances – and, he argues, this case does not fit within those parameters either. In short, even if the Court has discretion to award costs in this case, the threshold for exercising such discretion in the Appellant’s favour is not met in this case.[16]The Appellant disputes the point made in relation to s 19. Mr Sonn argues that s 19 deals with a different matter altogether, namely some form of misconduct by a party which causes costs to be incurred. That, he says, has nothing to do with this case where no issue of misconduct arises. He does however suggest that the error by the District Judge, which led to the successful appeal, was stark and was compounded by the Respondent’s subsequent failure to respond quickly and sensibly when the Appellant asked for a case to be stated, and then for revisions to be made to that case stated. He maintains that there would be a great injustice if the Appellant is not permitted to recover the costs of his successful appeal. The case of Darroch concerned third party costs and anyway pre-dates the LASPOA changes to the 1985 Act, so is of no assistance to the determination of the current application. Discussion Overview

Discussion

[17]There are two statutory regimes in play: s 28A of the 1981 Act which confers a discretion on this Court to award costs; and ss 16 and 16A of the 1985 Act which is much more limited in the circumstances in which costs can be awarded out of central funds. The first issue is which regime applies. Depending on the answer to the first issue, an issue may arise as to whether this Court should exercise discretion to award costs in favour of the Appellant.

Relevant Costs Regime

[18]The existence of two different regimes is recognised in the case law. The most helpful case on this issue is Murphy v Media Protection Services [2012] EWHC 529 (Admin), which was not cited to us but which was substantially relied on by the Divisional Court in Darroch, which was cited to us. The existence of the two different regimes is also recognised in Evans, see [83]-[84].[19]There are other costs provisions which may apply in other cases, but which are not in point here. For example, s 64 of the Magistrates’ Courts Act 1980 confers a power on the magistrates to award costs. The nature and scope of that power was discussed in Perinpanathan. But s 64 is not relevant to the current application, and I say no more about it or about the case law relating to it, which I have not found helpful in resolving this application.[20]In Murphy (at [3]), Stanley Burnton LJ used the term “civil costs regime” as a shorthand for s 28A, read alongside s 51 SCA 1981 which confers a discretion in relation to costs in the Court of Appeal civil division, the High Court and the Family Court. As he noted, those provisions are supplemented by the Civil Procedure Rules. That would now encompass CPR Parts 44-48 which deal with costs, and associated costs rules and practice directions. The general rule in civil cases is that the costs of the successful party should be paid by the unsuccessful party (this general rule is set out in terms at CPR 44.2(2)(a)).[21]He used the term “criminal costs regime” to refer to s 16 of the 1985 Act, read with the 1986 Regulations. As he noted, s 16(6) makes provision for a “defendant’s costs order” or DCO, for payment of costs out of central funds. He also made reference to the Practice Direction (Costs in Criminal Proceedings) [2010] 1 WLR 2351; [2011] 1 Cr App R 13.[22]The criminal costs regime has changed since Murphy was decided in 2012. Section 16A has now been implemented. In addition, Crim PR Part 45 addresses costs in criminal proceedings, and the Lord Chief Justice has issued revised guidance by means of the Practice Direction (Costs in Criminal Proceedings) [2015] EWCA Crim 1568, also available on the judiciary.gov.uk website (see https://www.judiciary.gov.uk/wp-content/uploads/2015/09/pd-costs-in-crim-proc-2015.pdf). That guidance has itself been amended since issue. Thus, the criminal costs landscape now looks very different from how it looked when Murphy was decided; but the changed lie of the land does not and cannot affect the fundamental distinction drawn in Murphy and other cases between the civil and criminal costs regimes.[23]The nature and scope of the LASPOA changes to the criminal costs rules were recognised in R v Evans, per Hickinbottom J (as he was) at [85]-[86] “[85] In criminal proceedings, the principle that a successful party will normally recover his costs was, until recently, reflected in section 16 of the 1985 Act … [86] However, that changed from 1 October 2012, when paragraph 2(2) of Schedule 7 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 came into effect. That inserted a section 16A(1) into the 1985 Act, which provides that, subject to exceptions not presently relevant:
“A defendant's costs order may not require the payment out of central funds of an amount that includes an amount in respect of the accused's legal costs …”
That reverses the general rule so far as criminal legal costs were concerned. Since October 2012, a successful defendant in criminal proceedings has generally not been able to recover the legal costs of defending himself: the only costs that he is now able to recover under section 16 are out-of-pocket expenses, such as fares to court.”[24]He went on to record that there remained provision for DCOs in three specific situations:
“(i) Section 19 (and regulations made under that section) provides that a court may make an order that one party pay the costs of another party to criminal proceedings, where it is satisfied that the receiving party has incurred costs as a result of an “unnecessary or improper act or omission by or on behalf of” the paying party. Such an order can only be made against a party, but that includes a prosecutor such as the CPS or the SFO. Because a successful defendant does not usually mind by whom his legal costs are paid (as long as he does not have to pay them himself), before the 2012 changes to section 16 , orders under section 19 were generally confined to situations where it was not deemed appropriate for costs to be paid out of central funds, e g where there was a private prosecutor. (ii) Section 19A gives the court the power to make a costs order against a legal representative where costs have been incurred as a result of an “improper, unreasonable or negligent act or omission” of that representative or his employee. Such an order can only be made against an individual legal representative (whether a natural or non-natural person), and not against a party. (iii) Section 19B empowers the court to make a costs order against any third party, where he has been guilty of “serious misconduct”.”
[25]In Evans, a costs order was made under s 19, as a reflection of the improper conduct of the respondent in resisting the challenge.[26]Accordingly, if the criminal costs regime applies, the only basis on which the Appellant can recover his costs is if he comes within one of the conditions set out in s 16A, or he can bring himself within ss 19, 19A or 19B, all of which broadly contain a power to award costs in the face of improper conduct. If none of those provisions apply, there is no basis on which to award him his costs to be met from central funds.[27]Guidance on which of the two regimes applies in any given case was given in Murphy. The Court held at [15] that:
“Clearly, save in exceptional cases, prosecutions and appeals in criminal cases should be and will be subject to the criminal costs regime.”
[28]That rule was cited with approval and applied in Darroch (see [16]-[22], [37] and the Court’s reasoning applying Murphy at [38]-42]). Although both Murphy and Darroch are decisions of the Divisional Court, and therefore not strictly binding on this Court, it is not suggested that either was wrongly decided and I see no reason to depart from the approach in those cases.

Exceptional Case?

[29]The present appeal arose from the Appellant’s conviction under s 172 of the Road Traffic Act 1988. That is self-evidently a criminal matter. Thus, applying the rule in Murphy, the criminal costs regime must apply unless this is an exceptional case.[30]Murphy is an example of an exceptional case. Mrs Murphy was a publican who used a satellite dish, a decoder box and a viewing card to access programmes, namely Premier League football matches, broadcast by a Greek company. She was prosecuted by Media Protection Services Ltd, a private company, and convicted of dishonestly receiving a programme broadcast from a place in the United Kingdom with intent to avoid payment of the charges applicable to the reception of that programme under s.297(1) of the Copyright, Designs and Patents Act 1988. Mrs Murphy appealed by way of case stated to the High Court and questions were referred to the Court of Justice. Following a preliminary ruling by that Court, it was held on appeal that she had not acted dishonestly because she had paid for her card and had not avoided any charge applicable to its use. Her convictions were quashed.[31]She sought her costs from Media Protection Services Ltd. The Divisional Court described the prosecution in this way at [15]:
“The prosecution was brought by the respondent in order to protect a very substantial profit stream for the Football Association Premier League Ltd (“the FAPL”). It was treated by both parties as a test case, involving substantial legal resources, including two silks for the appellant and two silks and three junior counsel for the respondent for the hearing on 29 and 30 November 2007, and two silks and a junior for the appellant and two silks and two junior counsel for the respondent on 25 and 26 June 2008. Both hearings were conducted in a manner indistinguishable from a hearing in the Chancery Division or before the Civil Division of the Court of Appeal in which substantial sums are in issue. This was very far from being a typical appeal against a conviction for a summary offence, which is what s 297(1) creates.”
[32]The Court held that the civil costs regime should apply and awarded Mrs Murphy her costs: see [19].[33]Darroch stands in contrast to Murphy. That case also involved a successful appeal against conviction under s 297 of the 1988 Act. In that case too, the prosecution was brought by Media Protection Services Ltd. However, before the proceedings were concluded, Media Protection Services Ltd went into liquidation. The Applicants (father and son) sought a third-party costs order against the Football Association Premier League (“FAPL”) which had engaged Media Protection Services Ltd to investigate and prosecute offending publicans. Although the application was for a third-party costs order, and in that sense was different from Murphy, the Court nonetheless approached the application on the basis that Murphy provided the relevant legal framework (see [37]). It held that there was nothing exceptional such as to justify a third-party[34]In this case, neither party argues that this is an exceptional case. I see nothing to suggest that it could be so characterised. It is an ordinary appeal from an ordinary prosecution for a driving offence. Although there were interlocutory skirmishes along the way to an appeal (noting that the Appellant had to seek an order of this Court to require amendment to the original case stated in the face of opposition from the Respondent), that feature does not make it exceptional.[35]In my judgment this is not an exceptional case. The criminal costs regime applies.

Appellant’s recovery of costs

[36]The only question remaining, once established that this case falls under the criminal costs regime, is whether there is any basis on which to award costs within that regime.[37]The parties agree that none of the conditions in s 16A applies.[38]Further, there is no improper conduct here. None of ss 19, 19A or 19B apply.[39]I conclude that there is no basis for awarding the Appellant his costs under the criminal costs regime.

Conclusion

[40]I would dismiss this application for costs.[41]The outcome will doubtless disappoint the Appellant. But LASPOA substantially limited the circumstances in which legal costs could be claimed from central funds. That was one of its legislative purposes, as the extracts from the Explanatory Notes set out above demonstrate. The Appellant would not be the first to complain of a sense of unfairness in not being able to recover legal costs incurred in successfully defending himself in the course of criminal proceedings. But the legislation is clear. There is no basis upon which such costs could be awarded under the criminal costs regime in this case.

Lord Justice Simon:

[42]I agree.

order

see [40] and that the criminal costs regime applied in the usual way. The application for a third-party costs order was refused.

Cited in 11 later judgments

and 2 more of the most senior