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1. LORD JUSTICE BROOKE: There is before the Court an application made on behalf of Sharmarke Haid for judicial review of an order of Mr Stephen Day, sitting as a Stipendiary Magistrate at the Feltham Magistrates' Court on 24th March 1998.

2. The Applicant pleaded guilty to a charge of stealing a bottle of Bacardi rum valued at £10.99. The Magistrate fined him £50, fixed a period of five hours within which the fine should be paid and directed that if he had not paid the fine within that time he should be detained for seven days in a young offenders' institution. Before making this Order the Magistrate was told by Mr Haid's solicitor that he was of no fixed address. The Magistrate signed a warrant of commitment for seven days to Feltham Young Offender Institution on the same day on a form called: "WARRANT OF COMMITMENT ON OCCASION OF CONVICTION".

3. There is a copy of the warrant in the papers before the Court. The warrant sets out the details of the offence. Against the word "address" appears the initials "NFA", presumably meaning "no fixed address". He was ordered to pay a £50 fine and £50 costs and the period of detention in default of payment was seven days. There followed directions to the constables of the Metropolitan Police Force, or the authorised prison custody officers, to convey the accused to Feltham Young Offender Institution, and a direction to the Governor to receive him into his custody, and keep him for a period of 7 days unless the amount remaining due be sooner paid.

4. According to an affidavit sworn by Mr Haid's adviser, Mr Richard Wise, Mr Haid was at the material time a 20 year old man lodging with a friend in West London. He had been living with his parents and he left his parent's home about three weeks previously. He delayed making a claim for benefits since he felt he should make every effort to find work first. He had made strenuous efforts to find a new job since he had become unemployed. He was arrested and charged with stealing a bottle of rum from a shop on 23rd March and held in police custody overnight.

5. The duty solicitor represented him in Court and Mr Haid maintained that he told the Magistrates ( sic) that he had been staying with friends for about three weeks but that he regularly went back to his parents' house in Heston. He was originally fined £100, but his solicitor prevailed on the Magistrate to reduce the fine to £50, bearing in mind his circumstances. He was unable to find anyone to pay off the fine on his behalf during the five hours allowed to him. He was taken to Feltham Young Offender Instiution on the afternoon of 24th March.

6. Mr Wise deposed that Mr Haid had told him that the Magistrates did not mention the alternatives to prison which they had considered inappropriate, in particular, they did not mention a money payment Supervision Order.

7. In her short affidavit, filed on behalf of the Justices, Mrs Verghis, who was the Court Clerk on duty in that Court that day, made no reference to the contention that the Magistrate did not mention the alternatives to prison which he had considered. She simply did not respond to it. The charge sheet had indicated that Mr Haid was of no fixed abode and Mr Haid had accepted in Court that this was indeed the case. Mrs Verghis says that she can recall Mr Day, the Magistrate, confirming to Mr Barker, the duty solicitor, that the Defendant was of no fixed abode before announcing the period of detention.

8. Mrs Verghis does not refer to Mr Richard Wise's affidavit, which she was presumably purporting to answer, and she does not deal, in any way, with the statement that Mr Haid had made to Mr Wise, which is incorporated in his affidavit, that Mr Haid had advised the Magistrate that, he had been staying with friends for about three weeks but that he regularly went back to his parents' house in Heston. It would be of great assistance to this Court, on occasions like this, if the person who is responding on behalf of the justices would make it clear in his or her affidavit in response that he or she had read the affidavit filed on behalf of the Applicant, and if there are matters set out in that affidavit, to which exception is taken on the basis that they are not correct, that this is made clear.

9. Mrs Verghis' affidavit is extremely short and the Court is left with the difficulty that it does not know whether the Magistrate accepts that he was told that the Applicant had been staying with friends for about three weeks but that he regularly went back to his parents' house in Heston.

10. In a letter, dated 9th July 1998, the Clerk to the Justices sent back to the Applicant's solicitors a proposed Consent Order making it clear that he was unwilling to consent and said this, among other things:

11. The copy of the register, which was sent to the Applicant's solicitors and is now before the Court, sets out the offence and says:

12. Mr Wise, on behalf of the Applicant, now seeks an Order quashing the decision to issue a Warrant of Commitment. He submits that the Magistrate failed to comply with the relevant statutory requirements and he has taken us through them. First he says that there was a failure to comply with section 82(6) of the Magistrates' Courts Act 1980. This reads:

13. In the present case the relevant section is section 82(1)(b) which reads:

14. Accordingly if the Magistrate's reason was that set out in section 82(1)(b), Mr Wise's submission to this Court is that the warrant should have said so. Mr Wise has also drawn our attention to section 1(5A) of the Criminal Justice Act 1982. This section appears in Part 1 of that Act concerned with the "TREATMENT OF YOUNG OFFENDERS" and section 1 creates a general restriction on custodial sentences for young offenders. It refers to the power created by section 9 of that Act committing a young offender, between the age of 18 and 21, to a Young Offender Institution for default on payment of a fine, and reads:

15. Mr Wise submits that there is no evidence that the Magistrate in terms said in open Court what his reason was for concluding that no other method of dealing with this fine default, other than sending the Applicant to prison for 7 days, was appropriate, or caused that reason to be specified in the warrant of commitment.

16. In so far as it might be argued that a reason was entered in the register (the reason being that the Defendant was of no fixed abode (the language used by section 82(1)(b) of the Magistrates' Court Act 1980) Mr Wise has conceded that there could be an exceptional case where the Magistrate was of the view that the requirements of section 82(1)(b) entitled him to make an Order for immediate commitment and that might be a situation in which that would be an adequate reason, but he submits that this is not this case.

17. Mr Wise relies heavily on the judgment of this Court in R v Oldham Justices ex parte Cawley [1997] QB 1. That case was largely concerned with the question whether the appropriate remedy for a defect in procedures of the type with which we are concerned in this case was habeas corpus, or judicial review, but the judgment of Simon Brown LJ contains a number of passages which are of great relevance in the present context. I will read a number of them into this judgment because it appears that the message that this Court gave in that judgment, which was reinforced by a circular issued by the head of the Criminal Policy Division of the Lord Chancellor's Department to all Justices, Chief Executives and Justices' Clerks on 2nd July 1996, which contains an expert from the judgment in Cawley, does not seem to have been fully taken on board, at least in this Magistrates' Court.

18. At page 5 Simon Brown LJ set out the background. He said:

19. Then he refers to the question whether habeas corpus is the appropriate remedy and he continues at B:

20. He then set out the statutory provisions which were relevant to the three cases he had to decide and at the top of page 8 he said:

21. A little bit later on at B he said:

22. On page 13 Simon Brown LJ considered the words of Rule 97(3) of the Magistrates' Courts Rules which read:

23. At page 13D he says this:

24. After reaching his central conclusion that habeas corpus had no useful role to play in reviewing the decisions of the nature which were before the Court, Simon Brown LJ said at page 19B:

25. At page 19D he says:

26. He then considered the facts of the three cases before the Court and went on at page 20F:

27. At page 21D he said:

28. Simon Brown LJ then quoted from a letter from Mr Pearson, the Director of Operations North in the prison service, in which he referred to a "system now established by the prison staff at Risley for identifying committal defaulters with defective warrants or other possible grounds of challenge, and referring them for legal advice." He said that Mr Pearson wrote:

29. A few lines later:

30. I turn from that judgment to the facts of the present case. Mr Haid was a man of 20. So far as is known to this Court he had no previous convictions. He stole a bottle of rum which cost £10.99. He appeared before a Stipendiary Magistrate the following morning after spending a night in police custody, and the practical effect of the Magistrate's Order was to send him to the Feltham Young Offender Institution for 7 days. It was a case in which, on the facts before the Court, it would be inconceivable that a Court would exercise its powers under section 1 of the Criminal Justice Act 1991 to sentence him to a term of immediate detention. On the facts before this Court it would be equally inconceivable that the Court would consider that a community sentence was appropriate under section 6 of that Act. Mr Wise does not challenge the appropriateness of a fine which was the lowest of the tariff of sentences available to the Magistrate on that occasion.

31. Feltham Young Offender Institution, as anybody who has visited it recently will know vividly, is very greatly overcrowded. The resources, which are available to look after young offenders, are severely stretched. I have no doubt that Mr Pearson, to whom reference was made in the judgment of Simon Brown LJ, would speak even more strongly of the position in Feltham in March 1998 than he spoke of the position in Risley in the autumn of 1995. Yet the order of the Court was, in effect, that young Mr Sharmarke Haid should go to Feltham for seven days for stealing a bottle of rum.

32. How did this come about? As I have said, we do not know (because the Magistrate has not sworn an affidavit and Mrs Verghis' affidavit is undetailed in the extreme) whether it is accepted that, as is deposed by hearsay evidence, that Mr Haid told the Magistrate that he had been staying with friends for about three weeks but he regularly went back to his parent's house in Heston. On the basis that he may not have got that message through one asks oneself: can it be right for a Magistrate to impose on a young offender the extreme sanction of issuing a warrant of commitment for default in paying a sum within five hours of his conviction on the occasion of convicting him, as this Magistrate did on this occasion, without making some further inquiry other than simply being told that the offender is of no fixed abode?

33. There was a duty solicitor who was acting for Mr Haid on that occasion. He appears to have accepted that his client was of no fixed abode. However, no doubt if the possibility of a sentence in default being imposed there and then had been made clear, he would have ensured that if up to that stage his young client had been reluctant to tell him that he had parents who certainly had a fixed abode living very locally, he would have told him then. No doubt even if there was not a Probation Officer in Court, if a duty solicitor's time did not allow him to make the further inquiries, the matter could have been stood down with the Defendant being placed in custody at the Court, while inquiries were being made, until his true status had been established.

34. If one looks at the structure of section 82 one sees that the occasions on which it is permissible, on the occasion of convicting an offender, to issue a warrant of commitment there and then for default in paying any sum adjudged to be paid on conviction, are fairly exceptional. The main structure of that section is to provide that in due course on default a means inquiry should be conducted and that the Court should go through the process required by section 82(4) of the Act, not only to be satisfied that the default is due to the offender's wilful refusal or culpable neglect, but also to have opportunity of considering or tried all other methods of enforcing payment of the sum, and it must appear to the Court that they are and inappropriate or unsuccessful.

35. Mr Wise has pointed out to us upon the facts of this case, as known to this Court, that there is no reason why a money payment Supervision Order or an Attendance Centre Order, which were two of the suggestions made in section 82(4)(a), might not have been eminently appropriate for Mr Haid for stealing this bottle of rum. Instead the Magistrate used his powers under section 82(1). I have already read section 82(1)(b). Section 82(1)(a) and (c) provide the other two opportunities for the Magistrate to use this exceptional power. Section 82(1)(a) refers to the case of an offender, "punishable with imprisonment, [where] he appears to the court to have sufficient means to pay the sum forthwith". Section 82(1)(c) is the situation in which, on the occasion of that conviction the court sentences him to immediate imprisonment, youth custody or detention in a detention centre for that or another offence, and so his liberty is going to be taken away in any event.

36. In my judgment it would only be in a most exceptional case, after very careful inquiry, that a Magistrates' Court should properly consider it appropriate to exercise its power under section 82(1)(b). If after strenuous inquiry the Magistrate is satisfied that it appears to him that the Defendant is unlikely to remain long enough at a place of abode in the United Kingdom to enable payment of the sum to be enforced by other methods, and if he is satisfied under section 1(5A) of the 1982 Act that no other method of dealing with him for stealing a bottle of rum, being unlikely to pay a fine of £50 and costs of £50, is appropriate other than to ensure that he is detained in custody on a warrant of commitment for seven days, then Parliament has required, in two separate Acts, that clear reasons should be given.

37. Under section 1(5A)A of the 1982 Act Parliament it is required that the Magistrate must:

38. Then under section 82 of the 1980 Act where a Magistrates' Court issues a warrant of commitment on the ground that a condition in subsection (1) is satisfied, it must state that fact specifying the ground in the warrant.

39. It is a matter of regret that following the decision in Cawley, and the publicity given to that decision by the Criminal Policy Branch of the Lord Chancellor's Department at the Feltham Magistrates' Court, appropriate care was not been exercised in drawing up the warrant. As I have said, there is not a word on it of the reason why the Magistrate thought that this exceptional penalty of the warrant itself should be imposed in relation to the theft of a bottle of rum. The only possible clue that one might get of the Magistrate's thinking is the address with the letters "NFA" and in the much latter letter of 9th July 1998. Despite what was said in Cawley, the Clerk to the Justices expresses surprise that a point is taken on the warrant used for committal, referring to a conversation with the Clerk in question, Mrs Verghis, when it was being conceded that any alleged defect on the warrant could be amended. This was against a background where without sight of the register, without any indication being given on the warrant, those advising Mr Haid, who were successful in getting him released on bail by Hooper J very quickly, had no idea that this was being treated as a section 82(1)(b) case and thought, as is clear on the Form 86A, that this was a section 82(4) case. This illustrates how crucial it is for those responsible for drawing up warrants to comply with the law.

40. In my judgment, even if it were correct (which I will assume in favour of the Stipendiary Magistrate it was) that he was not told what Mr Haid says that he told the Magistrates, that he regularly went back to his parent's house in Heston and had been staying with friends for about three weeks, it was incumbent upon him to make further inquiries, standing the case back, if need be, to make further inquiries before exercising his exceptional power under section 82(1). The reason I say this is because Parliament has underlined, in Part I of the Criminal Justice Act 1982, and in the later subsections of section 82 of the 1980 Act, how important it is that Magistrates should fall over backwards to avoid sending fine defaulters to prison if there is any other means of providing for payment of the fine, or for an appropriate penalty in lieu other than sentencing them to custody.

41. The social harm created by sending people to a young offender institution for the first time if it can be avoided, and the inconvenience caused to the prison service by making them invoke scarce resources to accommodate people for very short periods of time, are very well-known. Those considerations only go to underlie the importance of Magistrates and their clerks complying with the statutory requirements, to which I have referred in this case.

42. In my judgment, no Magistrate, after making proper inquiry, could have reasonably come to the conclusion that this was an appropriate case to exercise his power under section 82(1)(b). The warrant is also defective because it failed to set out what Parliament has described it should set out. For those reasons, I would direct that the warrant should be quashed. This, of course, will leave the fine outstanding.

43. MR JUSTICE ROUGIER: I agree. It is clear that the statutory requirements in relation to the issue of the warrant were not complied with in that the reasons for committal were not stated. In such a situation the case of R v Oldham Justices , referred to by my Lord, makes it clear that a heavy burden is placed upon the Justices to satisfy the Court that they adopted a lawful approach and addressed themselves properly to all the relevant issues, for the simple reason that the imprisonment of young offenders for non-payment of fines is very much a last resort and consequently any presumption of regularity is effectively reversed. Nevertheless, the Respondent does not appear to have allowed the weight of that burden to oppress him unduly in the present case, since neither in the affidavit of the Court Clerk nor in the explanatory letter that followed (which is at page 31 of the bundle) is there any indication that any other non-custodial methods of enforcing payment were considered, or, if they were, the reasons for their objection are likewise unrecorded.

44. MR WISE: I am much obliged for your Lordships' judgments. With respects to costs your Lordships will see that an application for the Applicant's costs is made against the Stipendiary Magistrate. Your Lordships should have a brief submission as to costs before you. Before I go into the detail of that, to pick up a point made by my Lord, Brooke LJ, earlier in argument about where costs lie, they are, indeed, dealt with in the 1997 Justice of the Peace Act which re-enacts the 1949 Act. It may be appropriate, at the outset of my submissions, to take your Lordship to it. It is Volume 1 of Stones Justices' Manual, section 54 on page 495. If your Lordships have that towards the bottom of the page:"Indemnification of Justices and Justices' Clerks." May I invite your Lordship to read section 54(1)(ii). Your Lordships see that indemnification applies save for those cases -- I would anticipate there will be very few -- where it shows that the Justices acted in bad faith. This is not such a case. There is no allegation of bad faith made in this case, so if your Lordships were minded to make a Costs Order then the Stipendiary Magistrate would be indemnified by local funds. Your Lordships see that if an Order against the Costs Order against the Magistrates was made, that is the procedure.

45. LORD JUSTICE BROOKE: What are you asking us to do?

46. MR WISE: I am seeking an Order of the Applicant's costs of this application, and alternatively the costs of the hearing of today. I do not know whether your Lordship has my brief submission as to costs?

47. LORD JUSTICE BROOKE: We have had a letter of request from the Justices saying of 13th July:

48. That would be a request to which we would normally comply if we are disposed actively to consider costs.

49. MR WISE: My Lord, that is not the usual procedure in these cases and one questions what the Court would be adjourning for.

50. LORD JUSTICE BROOKE: The Court would be adjourning because you have got in past first base in the same way in a legal aid case in the Court of Appeal. If the Legal Aid Board is given an opportunity to make submissions, but does not have to turn up at the main hearing, and if it is a rare case in which this Court will be disposed to make an Order for costs against the Justices----

51. MR WISE: The issue of costs against Justices was dealt with again in a test case, that of R v Newcastle-under-Lyme Justices, ex parte Massey .

52. LORD JUSTICE BROOKE: I know. That caused a great deal of angst in the Justices' world, which no doubt is why we now have section 54.

53. MR WISE: Section 54 re-enacts - I think it is 1949----

54. LORD JUSTICE BROOKE: As far as I can remember there was an attempt by them to obtain a provision and the Court could not order them to pay costs, but they do not seek to persuade Parliament that was appropriate.

55. MR WISE: Indeed so. It points very much in my application's favour that Parliament, having considered those representations, nevertheless enacted section 54 as it did, so Parliament clearly anticipates----

56. MR JUSTICE ROUGIER: For the first time the Justices will be aware that you were intending to make this application at the earliest, depending on when your instructing solicitors get the post, last Thursday.

57. MR WISE: No, my Lord, it is on the Notice of Motion.

58. MR JUSTICE ROUGIER: It is your letter of 8th July. You invite the agreement and then threaten to make an application for costs if it is not agreed. Assuming you did not send it via fast motor bicycle, it reached there on the 9th.

59. MR WISE: It was sent by fax, my Lord. Nevertheless the issue of costs is raised on the Notice of Motion. What I seek to avoid is to adjourn the case so that further expense is entailed by coming back, if at all possible.

60. LORD JUSTICE BROOKE: I have not consulted my Lord, but in the light of this history we are not going to make an Order for costs today.

61. MR WISE: The way that Rose J approaches the costs in the Massey case -- it may be appropriate to take your Lordship to it. It is page 39 of the authority's bundle or page 1693 of the report. This is, after having considered all the relevant principles, more in terms of procedure. It is between F and G:

62. So your Lordship sees that the type of situation was indeed anticipated by Rose LJ. The way in which this Court has dealt with the similar types of cases since the judgment in Massey would be to deal with the costs application, but if a costs Order were made against the Justices, to extend time under Order 35.

63. LORD JUSTICE BROOKE: The list that Rose LJ provides between D and E says:

64. When did you send off the Consent Order?

65. MR WISE: Bear with me one moment, from memory it was last Thursday. There was a response last Friday.

66. MR JUSTICE ROUGIER: It is towards the end of the bundle.

67. LORD JUSTICE BROOKE: That does not give us much time.

68. MR WISE: It does not, my Lord, save for the response shows quite clearly that they are going to agree to consent and that they do not consider themselves to be liable for costs, in any event. Your Lordship has the letter of 8th July last Wednesday. I think, my Lord, that would have been faxed.

69. MR JUSTICE ROUGIER: Page 4 is a somewhat formal document, is it not?

70. MR WISE: The draft consented----

71. MR JUSTICE ROUGIER: One puts in damages and costs and so forth, but half the time no applications in relation thereto are made for instance----

72. MR WISE: I accept that, my Lord.

73. MR JUSTICE ROUGIER: It is not surely until the 9th July, at the earliest, that the Clerk to the Feltham Justices realises that an application may be made. That is last Thursday.

74. MR WISE: It was faxed through to them at 11 o'clock in the morning last Wednesday. One does not nitpick about the date, but nevertheless by Thursday one has the response which says categorically that they are not going to agree to the consent of this case, despite Cawley having been brought to their attention. As your Lordship noted in the judgment, Cawley deals with very different types of situations to the present. It plainly was a case that should have been settled by consent. There is no doubt, in my submission, at all that this matter should not have been allowed to come to Court and should have been resolved by agreement.

75. LORD JUSTICE BROOKE: What we have here is a decision of this Court under section 82(1)(b) which has not, so far as I am aware, even in the vast number of cases which must cover most of the jurisprudence to this Court under this provision----

76. MR WISE: Your Lordship is correct.

77. LORD JUSTICE BROOKE: Also at C, whatever the facts are a belief that the wording of the warrant was not going to be central was a legality of what the Magistrate did.

78. MR WISE: Your Lordship has commented in judgment about how that comment has arisen. That derives from a proper reading of Cawley.

79. LORD JUSTICE BROOKE: Is there anything else you want to add?

80. You have your duty.

81. MR WISE: Of course I do have a duty to the Legal Aid Board. However, when one looks at the principles that should be applied in these types of cases there are two situations, there is the one situation referred to in ex parte Farleigh (?) which is approved by Rose LJ, that is a case where costs will be appropriate for the whole of the proceedings where the behaviour of the decision was considered to be so extreme. I do not know if your Lordship has my submission on costs in front of you, but the relevant passage is set out there.

82. MR JUSTICE ROUGIER: Are you going to address us on something outside your written submissions?

83. MR WISE: My Lord, no, save to point out that this is clearly a case where at the very least the costs of this hearing should be borne by the Justices.

84. LORD JUSTICE BROOKE: In this case Mr Wise, having had a favourable decision in his client's favour, seeks an Order that the Justices pay the costs of the hearing today. He has drawn our attention to correspondence last week between his solicitors and the Justices' Clerk. On 8th July, which was only five days before the hearing, the solicitors wrote:

85. Before moving to the Justices' answer I would observe that it would be very much more helpful if that letter had been written about a fortnight earlier. It is very unsatisfactory to have these questions of consent Orders being dealt with at the very last minute. What tends to happen is either the kind of problem is confronting this Court today when the Justices refused the client to consent but do not appear, or as this week a number of Consent Orders have been made at the very last moment and it is not possible to substitute those cases with other cases no doubt waiting for hearing which cannot be brought on in short notice.

86. However that may be, the Justices' Clerk wrote back on 9th July, in the letter to which I have already referred in my judgment, making the points which I have mentioned in the judgment. He also says:

87. On the same day the Clerk to the Justices wrote to the Court with a copy of the Applicant's solicitors saying that he understood this matter was to be heard on 13th July 1998: ^^Quote unchecked

88. Mr Wise has drawn our attention to the way Rose LJ set out the relevant principles applicable to costs against Justices in R v Newcastle-under-Lyme Justices, ex parte Massey [1994] 1 WLR page 1684. In that case at page 1693 Rose LJ, in considering whether to make an Order for the Justices to pay the costs of the hearing as opposed to the full proceedings, said:

89. Rose LJ went on to suggest that a costs Order nisi should be made if this Court was minded to make costs against Justices, thus enabling them to apply to have it set aside once they had a transcript of the judgment.

90. Mr Wise submits that the factors, which suggest that costs in the proceedings should be borne by the Justices, are that:

91. There is one matter, to which I should refer, before coming on to the facts of the particular case: the position of the Justices has been recently changed by the Justice of the Peace Act 1997. Relevant sections are section 11 which provides that the Queen may appoint a qualified person:

92. Accordingly these proceedings brought against the Feltham Justices were appropriately brought, subject to any technical detail as to whether the appropriate area was named, even though Mr Day was the Stipendiary Magistrate.

93. More importantly, section 54 of that Act provides that a Justice of the Peace, or Justices' Clerk, may be indemnified out of local funds in respect of costs ordered to be paid by him in proceedings against him in respect of anything done or omitted in the exercise, or purported exercise, of his duty as a Justice of the Peace, in so far as alleged criminal matters, unless it is proved in respect of the matters giving rise to the proceedings or claim that he acted in bad faith. Local funds in relation to a Justice or Justices' Clerk meets funds out of which the expenses of a Magistrates' Court committed for the area, to which he acted at the material time, are payable.

94. I mention those matters in the light of the contention advanced by the Clerk to the Justices. It may be that they are matters of technical detail that the Court is not aware of at the moment, which might suggest that the local funds in this case did refer to some other local funds, but the Court does not have sufficient information to determine whether that is correct.

95. Going back to the main submission that Mr Wise made, it used to be a wholly exceptional case in which this Court would order costs against Justices and the principles were always set out and applied. The principles set out in

96. In my judgment this is not an appropriate case to make an Order against Mr Day for these reasons: it has eventually turned out that the relevant provision was section 82(1)(b) of the 1980 Act. That provision has not, so far as I know, been authoritatively considered by this Court before, and it is quite clear that his refusal to agree to the making of a Consent Order was that he maintained that he did have the power under section 82(1)(b) to make the Order.

97. If and in so far as the complaint is in relation to the inadequacy of the warrant, his eye was taken off the ball by the conversation between the Applicant's solicitor and Mrs Verghis, as long ago as 27th March, that the Applicant's solicitor was not bothered about the warrant and had conceded that any alleged defect on it could be amended, this was, as I suggested, the main judgment because the Applicant's solicitor, at that stage, thought that this was a section 82(4) case rather than a section 82(1)(b) case. It appears to me that this is a trap for accidents and the reason why the Order was not consented to was that the Magistrate was concentrating on a different aspect of the proceedings and had been lulled into a sense of false security by the casual reference to the Applicant's solicitors not being bothered about the warrant.

98. In those circumstances it appears to me to be inappropriate to make an Order for costs against the Magistrate on this occasion. I would like to make it crystal clear, however, that the degree of casualness exhibited towards the requirements of the law at the Feltham Magistrates' Court, bearing in mind the way that this warrant was drawn up, needs to be brought to an end fairly abruptly. I imagine that any lay member of the public listening to these proceedings would be horrified to hear that a boy of 20 was sent to Feltham Young Offender Institution, in effect, there and then for stealing a bottle of rum valued at less than £11.

99. It is, in my judgment, of the greatest importance that not only should the Magistrate say clearly in open Court why he considers that this Order is appropriate, bearing in mind the requirements both of the 1980 Act and of the 1982 Act, but also that the statutory requirements are carried out both in relation to what appears on the warrant and in relation to what appears on the Court register.

100. Since it appears that the message of ex parte Cawley has not yet been fully understood, at any rate, at the Feltham Magistrates' Court, I would direct that a copy of the Court's two judgments in this case be sent to the Criminal Policy Division of the Lord Chancellor's Department to enable them to consider whether it is necessary to send out further advice to Justices, Chief Executives and Justices' Clerks to ensure that the law is complied with satisfactorily in future.

101. I would also direct that a copy of these judgements be sent to the Judicial Studies Board so that they can consider the best steps to ensure that in the training of Justices the necessity for complying with the law, in these regards, is clearly drawn to their attention. Having said that, I would not make an Order for costs so it is an ordinary Order for legal aid taxation.

102. MR JUSTICE ROUGIER: I agree for the reasons stated.

103. MR WISE: I am much obliged to your Lordships.