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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Stoddard & Ors, R (on the application of) v Oxford Magistrates Court [2005] EWHC 2733 (Admin) (11 October 2005) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2005/2733.html Cite as: [2005] EWHC 2733 (Admin)

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IN THE COURT OF JUSTICE
DIVISIONAL COURT
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London, WC2A 2LL
		11 October 2005

1. LORD JUSTICE SCOTT BAKER: Mr Justice Owen will give the first judgment.
2. MR JUSTICE OWEN: This is an application for judicial review of the refusal by District Judge Loosley sitting in the Oxfordshire Magistrates' Court to state a case in respect of his decision of 19 November 2004 to refuse the claimant's application for a defendant's costs order under section 16 of the Prosecution of Offences Act 1985. However the substance of the application is a challenge to the decision of 19 November. The claimants contend that the refusal to state a case was perverse as the decision to refuse to make a defendant's costs order was flawed in law.
3. The central issue is, therefore, whether the learned district judge erred in law in refusing to grant a defendant's costs order. Neither the defendant nor the interested party (the prosecuting authority, the Oxfordshire County Council) have participated in these proceedings.
4. The application arises in the following circumstances. The claimants were at all material times the licensees of a branch of Budgens, the well known chain of food stores at Abingdon, in Oxfordshire. Following a series of test purchases carried out by the Oxfordshire County Council's Trading Standards department the claimants were prosecuted for an offence of selling intoxicating liquor to a person under the age of 18, contrary to section 169 of the Licensing Act 1964, as amended by the Licensing of Young Persons Act 2001.
5. The alleged offence was committed on 23 October 2003 when a 15-year old female volunteer was sent into the store by trading standards officers to purchase a bottle of Smirnoff Ice. She was sold the bottle by a sales assistant, herself only 16 years of age.
6. Informations were laid against the claimants on 7 January 2004. On 23 February 2004 solicitors acting for the claimants wrote to the Prosecution seeking disclosure of the nature and scope of the test purchase operation. It is not necessary for present purposes to set out the request in detail. Suffice it to say that it was met in part. However the response did not satisfy the claimants' solicitors who pursued the request for the outstanding disclosure by letters of 15 March, 17 March and 27 May 2004.
7. In their letter of 27 May 2004 the claimants' solicitors also proposed a meeting between officers of the Trading Standards Department and the claimants "to discuss resolution of the case", a proposal that was repeated on a number of occasions, but on each such occasion rejected.
8. On 3 June 2004 the claimants entered pleas of not guilty, and a pre-trial hearing was fixed for 29 July. Prior to the pre-trial hearing the claimants' solicitors served a defence statement stating that the claimants would rely upon the due diligence defence afforded by section 169A(3) of the Licensing Act 1964, which provides:

"It is a defence for a person charged with an offence (under Subsection 1) of this Section, where he is charged by reason of the act or default of some other person to prove that he exercised all due diligence to avoid the commission of an offence under that Section."

9. The defence statement set out the factual basis upon which the defence was to be advanced in considerable detail. It was in essence a repetition of information that had been provided by the claimants' solicitors in their letter of 27 May 2004.
10. In the course of the pre-trial hearing the prosecution said that it was not prepared to make the further disclosure that had been requested by the claimants' solicitors, but indicated for the first time that it was prepared to conclude the proceedings by way of formal caution. There was then a further hearing before District Judge Loosely on 11 October 2004 at which the claimants' solicitors sought an order for the outstanding disclosure. That application was refused. Following that refusal, the claimants indicated on 13 October that they were prepared to accept a formal caution for the offence. In consequence and at a further hearing on 19 November 2004, the informations were dismissed, the prosecution offering no evidence.
11. On the same occasion the claimants applied for a defendant's costs order. That decision was refused. On 9 December the solicitors applied to the Oxfordshire Magistrates' Court to stay the case under section 111 of the Magistrates' Court Act 1980, an application that was refused on 15 December. It is those decisions that are the subject of this challenge.

The legal framework

12. By section 16(1) of the Prosecution of Offences Act 1985:

"Where -

(a) an information laid before a justice of the peace for any area, charging any person with an offence, is not proceeded with;

...

that court or, in a case falling within paragraph (a) above, a magistrates' court for that area, 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')."

The section therefore confers a discretion upon the Magistrates' Court as to whether to make a defendant's costs order.

13. Guidance as to the exercise of that discretion was given by Lord Woolf CJ in Practice Direction (Costs: Criminal Proceedings) [2004] 2 All ER 1070 issued on 18 May 2004. Part II.1.1 provides:

"Where an information laid before a justice of the peace charging a person with an offence is not proceeded with, a magistrates' court inquiring into an indictable offence as examining justices determines not to commit the accused for trial, or a magistrates' court dealing summarily with an offence dismisses the information, the court may make a defendant's costs order. An order under s 16 of the Act may also be made in relation to breach of bind-over proceedings in a magistrates' courts or the Crown Court... As is the case with the Crown Court (see below) such 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. In the case of a partial acquittal the court may make a part order...."

Then II.1.2:

"Whether to make such an award is a matter in the discretion of the court in the light of the circumstances of each particular case."

14. It is necessary to add a section from the following paragraph, which relates to the Crown Court but, as indicated above, also applies to applications made in the magistrates' court. The relevant sentence of II.2.1 is in the following terms:

"The court when declining to make a costs order should explain, in open court, that the reason for not making an order does not involve any suggestion that the defendant is guilty of any criminal conduct but the order is refused because of the positive reason that should be identified."

15. In refusing the application to make a defendant's costs order, the district judge reminded himself of the contents of the Practice Direction. Having referred to the examples given in the Practice Direction, he continued:

"One example is then given of a reason for not doing so which is where the Defendants' conduct has brought suspicion on himself and he has misled the prosecution into thinking the case was stronger. It must be stressed that this is just one example of a positive reason for not making an Order because a number of advocates seem to submit that unless this particular exception applies they are automatically entitled to costs which is not, of course, the correct position. In my view the test which the Court actually has to apply in deciding whether or not there is a positive reason for not making an Order is set out in paragraph 1.2. That paragraph makes it clear that in consideration the matter the Court has a discretion in the light of the circumstances of each particular case."

16. The district judge's subsequent refusal to make a defendant's costs order was set out in the following terms:

"Having set out the appropriate legal criteria I turn now to apply it to this case. I raised a number of issues with Mr H who is applying for the Order and he made a considerable number of submissions very eloquently to deal with the points that I put to him. However, after very careful consideration of all of these points and the cases to which he took me I have decided that I am not going to make a [defendant's costs order] in this case. My reasons for so doing so are two-fold.

(i) In the normal course of events if a [defendant] is paying his solicitor and either pleads guilty or is found guilty he will not be entitled to receive any costs. I cannot see that the position is any different for a Deft who accepts a caution during the course of proceedings. In order to be eligible for a caution a Deft has to make a clear and unequivocal admission of the wrongdoing alleged against him by the Prosecutor. If a Deft as in this case makes such an admission I cannot see why he should be in any better position than a Deft who pleads guilty to a charge. Mr H sought to argue that a person who is cautioned is substantially better off than one who is convicted and he set out reasons for this proposition in his skeleton argument. I do not accept that a cautioned Deft is substantially better off because as already indicated the caution is a clear admission of an offence and the caution can be cited in subsequent proceedings. My overall conclusion is that a cautioned Deft is in the same position as a convicted Deft and I can see no reason on the facts of this case why the Defendants should have their costs.

(ii) Substantial costs have been incurred in this case and in my view they could have been avoided because the issue of a caution could have been dealt with at a much earlier stage. The facts in this case are crystal clear and could never realistically been disputed that this under age girl made a purchase. In addition the law is equally clear and provides that the offence is one of strict liability subject only to a defence of due diligence. The facts and the law being very clear the Defendants could have been advised at a very early stage that they were in difficulties with this case and that they ought to seek a caution. Had that have been done in this case substantial costs would not have been incurred. In arguing the matter in front of me, Mr H maintained that he needed to carry out detailed enquiries to put himself on a equal footing with the prosecution before he could have advised his clients to accept a caution. I do not accept that argument because as already indicated the facts were clear and could [be] summarised in about 5 lines and the law was capable of an equally succinct summary. In my view the caution should have been considered much earlier and as it was not, substantial costs were incurred. I see no reason whatsoever why those costs should come out of the Public Purse."

17. The district judge's subsequent refusal to state a case was in the following terms:

"Having been asked to state a case in the above matter I refuse to do so as I am of the opinion that the application is frivolous.

REASONS

As to Question 1, for reasons I gave on 11th October 2004 the material sought was clearly irrelevant to the issues in dispute.

As to Question 2, the issue of costs was entirely within my discretion in the exercise of a discretion is not a matter of law."

18. There are, in essence, two strands to the challenge to the refusal by the district judge to make a defendant's costs order. First, it is submitted that he erred in equating the position of a defendant who pleads guilty or is found guilty to that of a defendant who agrees to accept a formal caution. Secondly, it is submitted that the judge erred in his conclusion that the substantial costs incurred by the claimant could have been avoided because the issue of a caution could and should have been "dealt with at a much earlier stage". It is submitted that he erred in putting the onus on the claimants to seek a caution when a decision to proceed by way of further caution was for the prosecution and not for the defence.
19. As to the first ground of challenge, it is clear from the district judge's decision, that he saw no distinction between a formal caution and a conviction in this context. Mr Philpot submits that there is a clear distinction between a formal caution and a conviction, and that the judge misdirected himself in treating the caution as a conviction for the purpose of the application for a defendant's costs order.
20. The practice of issuing formal cautions is not based on statute, save in the case of juvenile offenders. Mr Philpot helpfully refers to the following passage from the Royal Commission on Criminal Procedure. Paragraph 151 reads:

"Although the practice of cautioning has been given recognition in two statutes (the Street Offences Act 1959 and the Children and Young Persons Act 1969), it has never been specifically authorised by statute and no precise date can be assigned to its origin. In addition, it seems to have aroused little judicial comment."

He also helpfully directed our attention to the most recent Home Office Circular, 18 of 1994, on the cautioning of offenders. The Circular includes national standards for caution, which contains the following paragraph:

"Decision to caution

2. A formal caution is a serious matter. It is recorded by the police; it should influence them in their decision whether or not to institute proceedings if the person should offend again; and it may be cited in any subsequent court proceedings. In order to safeguard the offender's interests, the following conditions must be met before a caution can be administered -

- there must be evidence of the offender's guilt sufficient to give a realistic prospect of conviction."

The remaining provisions in that paragraph refer to juvenile offenders save for Note 2D, which is in the following terms:

"In practice consent to the caution should not be sought until it has been decided that cautioning is the correct course. The significance of the caution must be explained: that is, that a record will be kept of the caution, that the fact of a previous caution may influence the decision whether or not to prosecute if the person should offend again, and that it my be cited if the person should subsequently be found guilty of an offence by a court."

The Circular is directed to the police, but Mr Philpot informs us in his skeleton argument that the use of such cautions is widespread amongst other prosecuting authorities.

21. We turn, then, to consider the district judge's approach to the application for the defendant's costs order. Was he right to equate a caution with a conviction for the purposes of the application? In my judgment he was not. By accepting a formal caution the claimants acknowledged that the offence had been committed. Furthermore, and as is clear from the guidelines to which I have just made reference, the existence of such a caution may influence a prosecuting authority in a decision as to whether or not to institute proceedings should they appeal again, and could be drawn to the attention of the court should there be a further offence within a period of three years. But that position is plainly to be distinguished from the consequences of a conviction. The claimants have been acquitted. They do not have a criminal record, a matter of considerable importance to them as licensees. They have not been subjected to any penalty. They have not been exposed to the risk of adverse publicity that could follow a conviction. In my judgment, the district judge was plainly wrong to equate a caution with a conviction in this context.
22. The second criticism advanced on behalf of the claimants is that the district judge erred in approaching the issue of costs on the basis that it was for the claimants to have sought a caution at an early stage in the proceedings, thereby avoiding incurring substantial costs. As to that, there are two points to be made. First, it was for the persecuting authority to decide whether or not a caution was acceptable. Whilst it was open to the claimants to have made such an approach, they were not under any obligation to do so; and prior to the pre-trial hearing on 29 July 2004 there was no indication that such a course would be acceptable to the prosecuting authority. On the contrary. The repeated requests by the claimants' solicitors for a meeting with the Trading Standards officers to discuss the case and its possible resolution were rejected. In my judgment, it was wholly unreasonable for the district judge to approach the issue of costs on the basis that the claimants were responsible for the proceedings not being resolved by way of a caution until October 2004.
23. The second and related point is that the district judge appears to have been of the view that there was no real prospect of a successful defence. In fact, and until the point at which the prosecution indicated that it was prepared to accept a formal caution, the claimants intended to contest the charges by seeking to establish the statutory due diligence defence - the defence, as I have already indicated, having been fully particularised in the defence statement. On any view the facts outlined in the defence statement gave rise to an arguable defence. But when the prosecution indicated that they were prepared to dispose of the matter by way of a formal caution it was obviously necessary for the claimants carefully to consider whether to accept that offer, bearing in mind that the onus would have been upon them to establish the statutory defence and the advantages of being cautioned, rather than running the risk of having convictions recorded against them.
24. The view apparently taken by the district judge that the charges could not realistically have been defended was, in my judgment, unsustainable on the material clearly set out in the correspondence.
25. It follows that, in my judgment, the decision to refuse to make a defendant's costs order was flawed. The district judge misdirected himself in the proper exercise of his discretion in equating a caution with a conviction, in approaching the costs issue on the basis that there was an onus on the claimant to seek resolution of proceedings by way of caution, and that the charges could never realistically have been defended. It follows that the district judge also erred in refusing to state a case.
26. I therefore consider that the appropriate course is to quash the refusal to make the defendant's costs order and to remit the matter to the Oxfordshire Magistrates' Court for rehearing.
27. LORD JUSTICE SCOTT BAKER: I agree.
28. The judge should have stated the case, but the matter has proceeded as a claim for judicial review. The district judge's decision refusing to make a defendant's costs order will be quashed and the case remitted to the Oxford Magistrates' Court for the issue whether the claimants should have a defendants's costs order and, if so, the extent of it to be considered afresh without the errors identified by my Lord. The identity of the judge to hear the issue is a matter for the Oxfordshire Magistrates' Court, but there is no reason why it should not be District Judge Loosely.
29. MR PHILPOT: I am grateful, my Lord. Would your Lordships grant a defendant's costs order for today's application, the application having been granted and the order being made under section 16(5) of the Prosecution of Offences Act.
30. LORD JUSTICE SCOTT BAKER: Yes. Is it the Oxford Magistrates' Court or the Oxfordshire Magistrates' Court?
31. MR PHILPOT: It is now Oxfordshire Magistrates' Court. It is a recent change.
32. LORD JUSTICE SCOTT BAKER: In which case the order will be drawn accordingly.
33. MR PHILPOT: I am grateful, my Lord.