Case No: CO/5905/2012
Neutral Citation Number: [2012] EWHC 3469 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
DIVISIONAL COURT

Manchester Civil Justice Centre
1 Bridge Street West
Manchester
M3 3FX

Wednesday 14 November 2012

Before:

MR JUSTICE MADDISON

MR JUSTICE HICKINBOTTOM

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Between:
	
DANIEL BLACOW	
Appellant	
	
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	THE QUEEN	
Respondent	

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(DAR Transcript of 
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Mr Jonathan Lally (instructed by LHD Solicitors) appeared on behalf of the Appellant.

The Respondent did not appear and was not represented
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Judgment
Mr Justice Hickinbottom:

1.	In 2009 the Appellant, Daniel Blacow, was in a relationship with Ms Lyndsey McGregor, who had a young son.  

2.	On 27 November 2009, Ms McGregor collected the Appellant from a public house, following his attendance there at a works function.  Upon arriving home, there was a heated argument between them.  Both apparently accepted that their relationship was at an end.  Ms McGregor asked the Appellant to leave, and he had every opportunity to do so.  In particular, there was evidence that a friend of his lived nearby, and he could have gone there.  However, he did not go.  He stayed at Ms McGregor's property for perhaps half an hour, arguing with her about money which he said she owed him.  Ms McGregor alleged that during that altercation, the Appellant repeatedly assaulted her and also assaulted her son.  He accepted that he had at one stage pushed past her, but he denied he had ever assaulted her or her child.

3.	The Appellant was charged with common assault on both Ms McGregor and her son.  At a trial at Blackpool Magistrates’ Court on 21 April 2010, he was acquitted of the charge in respect of the son, but was found guilty of assaulting Ms McGregor.  Pursuant to section 16 of the Prosecution of Offences Act 1985, to which I shall return shortly, the Appellant was awarded half of his costs, to reflect the fact that one of the two charges against him had been dismissed.  

4.	The Appellant appealed his conviction to Preston Crown Court, where it was heard over one-and-a-half days on 23 and 24 September 2010, before His Honour Judge Newell and two magistrates.  They allowed the appeal.  Their reasons for that were put thus in the case stated to this court (at paragraph 7):

"In summary HHJ Newell stated that they found the complainant credible and did not think she was lying.  He emphasised that it was not a case of preferring one person's evidence over another; the test was not the balance of probabilities.  The two parties were the only people who can say what happened.  He made it clear that they had to be sure that her testimony was honest, accurate and reliable.  As the burden was on the Crown, they were unable to decide, and therefore they could not be sure.  The appeal was allowed."

5.	The Appellant had the benefit of legal aid for his appeal to the Crown Court.  However, having succeeded on his appeal, he applied to the Crown Court for a defendant’s costs order for the half of his costs of the 21 April hearing that he had not recovered by virtue of the magistrates’ order.  That application was refused.  Again, the case stated gives the reasons for that refusal, as follows:

"[Judge Newell] stated, when giving judgment on behalf of himself and the magistrates, that Mr Blacow had contributed to the incident.  He had consumed alcohol, gone home with the complainant, following which a row had developed where both parties "were in each others faces".  His Honour stated that in the tribunal's view Mr Blacow had the opportunity to leave but chose to pursue the argument.  He could have exercised discretion and restraint.  The Judge also referred to Mr Blacow's friend… living nearby, and suggested he could have gone to his house.  As Mr Blacow had stayed to pursue the argument, he was not entitled to his costs."

That succinctly and accurately summarises the reasons given at the time by Judge Newell (see transcript of the proceedings 24 September 2010, page 118B to F).

6.	 The Appellant now appeals that refusal to this court by way of case stated, the question posed for this court being: 
"Was the Crown Court’s decision to refuse a defendant’s costs order to Daniel Blacow a Wednesbury unreasonable exercise of their discretion having heard all the evidence in this case over 1½ days and 113 pages of transcript and having given proper reasons therefor."

7.	The relevant law is, briefly, as follows.  Section 16(1)(c) of the Prosecution of Offences Act 1985 provides, so far as relevant to this appeal, as follows:

"Where… a magistrates’ court deals summarily with an offence dismisses the information; that court... may make an order in favour of the accused for a payment to be made out of central funds in respect of his costs (a ‘defendant's costs order’)."

With regard to the position on an appeal, section 16(3) provides:

"Where a person convicted of an offence by a magistrates’ court appeals to the Crown Court... and, in consequence of the decision on appeal… his conviction is set aside; … the Crown Court may make a defendant's costs order in favour of the accused."

8.	Those statutory provisions provide no guidance as to the exercise of that discretion.  However, guidance is given in Practice Direction (Criminal Proceedings: Costs) [2010] 1 WLR 2351, a practice direction made by the Lord Judge LCJ on 30 July 2010, and effective from that date.  That revoked and superseded two earlier practice directions with the same title ([2004] 1 WLR 2657 and [2008] 1 WLR 152), although the relevant paragraphs have remained substantially the same since 2004.  For the purposes of this judgment, I need therefore only refer to the provisions of the 2010 Practice Direction.  
9.	Part 2 deals with costs out of central funds.  Paragraph 2.1.1 states:

"Where ... a magistrates’ court dealing summarily with an offence dismisses the information; the court may make a defendant’s costs order...  [S]uch an order should normally be made unless there are positive reasons for not doing so.  For example, where the defendant’s own conduct has brought suspicion on himself and has misled the prosecution into thinking that the case against him was stronger than it was, the defendant can be left to pay his own costs.  Where the defendant has been acquitted on some counts but convicted on others the court may make an order that only part of the costs be paid...".

10.	Of course, as I have indicated, the Blackpool Magistrates’ Court in this case made such a partial order.  Paragraph 2.2.3 of the Practice Direction confirms that the Crown Court may make a defendant’s costs order in favour of a successful appellant.  Where the Crown Court is called upon to exercise such a discretion, that discretion must be exercised in the same way as it is exercised by the magistrates, namely in accordance with paragraph 2.1.1.  

11.	Whilst the example given in paragraph 2.1.1 of the Practice Direction of a positive reason for not making a defendant’s costs order is just that, a mere example, as stressed by this court in Dowler v Merseyrail [2009] EWHC 558 (Admin), it requires the defendant's own conduct both to bring suspicion himself and to mislead the prosecution into thinking the case against him was stronger than it was.  In Dowler it was held that a person putting his feet on a stanchion between seats on a train, whilst possibly bringing suspicion on himself in respect of committing the offence of putting his feet on part of the seat, did nothing to mislead the prosecution into thinking that the case against him was stronger than it was.  In those circumstances, the Divisional Court held that the justices in that case had erred in law in refusing the defendant a defendant’s costs order when the prosecution was dropped in favour of the administration of a caution.  I consider that that interpretation of the Practice Direction was, on its face, clearly correct; but, in any event, the 2010 Practice Direction was made by the Lord Chief Justice in the full knowledge that that was the interpretation of the example which the courts had adopted under the earlier Practice Direction and there must, therefore, be a presumption that that interpretation must accord with the intention of the new, 2010 Practice Direction.

12.	In the case now before this court, Mr Jonathan Lally for the Appellant submitted that the Appellant's conduct in remaining at Ms McGregor's house, in circumstances in which he could have retreated to avoid trouble, did not constitute conduct that brought these proceedings for assault upon himself; and, in any event, the Appellant did not at any point mislead the prosecution into believing that the case against him was stronger than it was.  This case did not consequently fall within the example given in the Practice Direction, as a case in which there would be a good reason for denying an appellant any of his costs before the magistrates once his appeal was successful.  Nor, it was submitted, was there any other good reason for denying him those costs.  Furthermore, Mr Lally submitted that the decision of the Crown Court to deny him those costs is incompatible with the magistrates’ court's decision to grant the Appellant a defendant’s costs order in respect of his acquittal of the other offence.

13.	I find those submissions compelling.  Of course, we are here concerned with the exercise of a discretion by the Crown Court, with which this court will only interfere if satisfied that it was unreasonable in the Wednesbury sense (i.e. that no court properly directing itself could have come to that conclusion) or satisfied that it was otherwise wrong in law.  However, contrary to the conclusion of the Crown Court, I respectfully do not consider that the Appellant did do anything to bring these proceedings on himself by staying at his former partner's house to argue about their financial circumstances.  It may well have been that, if the house was Ms McGregor’s, in those circumstances she could quite properly have asked him to leave; and, indeed, possibly used reasonable force to compel him to do so.  It may also well have been that, in staying, the Appellant enabled the altercation to continue, and to become more heated.  He may have been wiser to have left, when he had the opportunity to do so.  However, by staying, what he did not do is to invite his own arrest and prosecution for assault of which the courts have acquitted him.

14.	In any event, even if, contrary to my firm view, the Appellant's conduct did bring any suspicion on himself, or could have done so, he never did anything to mislead the prosecution as to the merits of the case against him.

15.	Consequently, I do not agree with the reasons given by Judge Newell for denying the Appellant his costs before the magistrates’ court.  Nor do I consider that there is any other reason for denying him those costs.  The Crown Court's decision on costs is incompatible with the magistrates’ court's decision, because in my view the magistrates properly applied section 16 of the 1985 Act and the relevant guidance, and the Crown Court did not.  The Crown Court's approach to the application of a defendant’s costs order was unfortunately, in my judgment, wrong in law.

16.	For those reasons, I would answer the question posed for this court in the affirmative: the Crown Court's decision to refuse the Appellant a defendant’s costs order in respect of the balance of his costs before the Magistrates’ Court was an unlawful exercise of its discretion.  

17.	This appeal is well out of time.  The reasons for the delay are set out in an undated letter from Preston Crown Court received by those instructing Mr Lally in April of this year.  Those reasons concern administrative problems at the court, including the temporary loss of the file by HM Courts Service which resulted in a very extensive delay in getting the case stated settled.  That letter makes clear, and I certainly accept, that the delay is not in any part due to the Appellant or his legal representatives. They have, it seems to me, done the best they reasonably could to have progressed this appeal.  

18.	In those circumstances, I would extend time appropriately for the appeal to be in time, and I would allow the appeal.  In doing so, I would make an order under section 28A of the Senior Courts Act that one half of the costs before the magistrates on 21 April 2010 be the subject of a defendant’s costs order.

Mr Justice Maddison:

19.	I agree.  For the reasons clearly explained by my Lord, Mr Justice Hickinbottom, assuming for present purposes that Mr Blacow in general terms contributed to the incident concerned, the most he did was to contribute to an incident during which ultimately no criminal offence was committed.  

20.	In the circumstances there will be the necessary extension of time.  I, too, would answer the question posed in paragraph 14 of the case stated in the affirmative.

21.	Accordingly, the appeal will be allowed.  The decision of the Preston Crown Court of 24 September 2010, insofar as it relates to a defendant’s costs order, will be quashed; and there will be an order, ultimately pursuant to section 16 of the Prosecution of Offences Act 1985, in respect of one half of the cost incurred in the proceedings before the Magistrates Court.  Those costs have already been the subject of an assessment by the Central Taxation Team, so that those costs can now be quantified in the sum of £2,435.16.

22.	Finally, I would like to thank Mr Lally for his clear and concise submissions.