BAILII Citation Number: [2000] EWHC 651 (Admin)
Case No. TCO/4302/97
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN  OFFICE  LIST
DIVISIONAL  COURT

Royal Courts of Justice
The Strand
London

Date: Tuesday  18  April  2000

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Bingham of Cornhill)

and

MR  JUSTICE  ASTILL

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THE  QUEEN

SOUTH WEST SURREY MAGISTRATES' COURT

Ex parte WAYNE  JAMES

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Computer Aided Transcription by
Smith Bernal, 180 Fleet Street, London EC4
Telephone No: 071-421 4040
(Official Shorthand Writers to the Court)
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MR S HOLT (instructed by Messrs Fulchers, Farnborough, GU14 OEH)
appeared on behalf of THE APPLICANT
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J U D G M E N T

1.	THE LORD CHIEF JUSTICE:  Mr James applies for an order of judicial review to quash a decision of Surrey Justices sitting in Guildford who on 18 September 1997 refused him a defendant’s costs order. The question for decision is whether the justices were properly entitled to refuse such an order. Leave to move was granted by the single judge on 30 January 1998, but the application has been subject to some delay caused by an error in the Crown Office for which the applicant is not personally responsible (although he does not appear to have been a very active litigant). 
2.	The applicant is a man now aged 33. On 31 May 1997 he was interviewed at Guildford Police Station and charged with common assault on his estranged wife. On 25 June 1997 his solicitor sought a copy of the interview tape, but the Crown Prosecution Service indicated that no advance information would be forthcoming. The hearing of the case was adjourned on 30 June. On 3 July the applicant’s solicitor made a further request for the interview tape which was not fruitful.
3.	The applicant appeared in court on 15 July 1997 and pleaded not guilty. At that stage the Crown Prosecution Service sought an adjournment in order to review the case. The case was further adjourned on 29 July 1997 at the request of the Crown Prosecution Service who wanted to review the papers following a further statement made by the alleged victim withdrawing her allegations against the applicant.
4.	On 4 August 1997 the Crown Prosecution Service told the applicant of their intention to discontinue the proceedings and serve a notice of discontinuance on the ground that there was insufficient evidence to provide a realistic prospect of conviction.
5.	On 7 August 1997 the proceedings were formally discontinued, although it seems that the Bench at that stage saw a summary of the interview between the police and the applicant, which the applicant and his advisers had themselves never seen.
6.	On 18 September 1997 the applicant applied to the justices by his solicitor for a defendant’s costs order. That application was refused. In opposing the application for such an order the Crown Prosecution Service representative read a summary of the interview with the applicant which contained what on its face was a series of admissions.
7.	The justices’ conclusion, expressed in an affidavit sworn by the chairman presiding on 18 September, was that the justices felt that the applicant had undoubtedly brought the case upon himself by his own behaviour and that the undisputed contents of the short descriptive note of the tape‑recorded interview was in the justices’ judgment a positive reason for not ordering costs from central funds in the case.
8.	The refusal of the order was and is the subject of strong objection on behalf of the applicant. He and his advisers had never seen the note of the interview; nor had they received a copy of the tape, despite more than one request. The first they had ever heard of the note of the interview was when the Crown Prosecution Service representative read it to the Bench on 18 September. It was not in fact the case, as the chairman deposed, that the contents of that summary were undisputed. The defence do dispute the accuracy of that summary. It is moreover plain when one compares the note of the interview with the facts summarised in the chairman’s affidavit that even the summary did not contain the material which the chairman extracted from it.
9.	It is section 16 of the Prosecution of Offences Act 1985 which contains the power to make an order for the defendant’s costs. It is unnecessary for present purposes to recite the terms of that well‑known section. The application of the section was the subject of a Practice Direction which is entitled Practice Direction (Crime: Costs) [1991] 1 WLR 498. The relevant paragraphs of that Practice Direction, at page 499, to which I draw attention are these:
“In a magistrates’ court 
2.1 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 section 16 may also be made in relation to breach of bind over proceedings in a magistrates’ court or the Crown Court: regulation 14(4). As is the case with the Crown Court such an order should normally be made unless there are positive reasons for not doing so and in the case of a partial acquittal the court may make a part order: see paragraphs 2.2 and 2.3 below. 
In the Crown Court 
2.2 Where a person is not tried for an offence for which he has been indicted or committed for trial or has been acquitted on any count in the indictment, the court may make a defendant’s costs order in his favour. Such an order should normally be made whether or not an order for costs inter partes is made, unless there are positive reasons for not doing so. Examples of such reasons are:  
(a) the defendant’s own conduct has brought suspicion on himself and has misled the prosecution into thinking that the case against him is stronger than it is; 
(b) there is ample evidence to support a conviction but the defendant is acquitted on a technicality which has no merit.”  
10.	Paragraph 2.2 of that Practice Direction has been amended by Practice Direction (Crime: Defence Costs) [1999] 1 WLR 1832, in effect by deleting paragraph 2.2(b) which I have read. That amendment was not in force when the justices made their decision and the deleted sub‑paragraph is not the provision on which the justices relied. I draw attention to the amendment, however, in order to make plain that this is sensitive territory. The deletion was made in order that courts should not decline to make costs orders in situations where a denial of such an order would undermine the presumption of innocence and so infringe the requirements of the European Convention on Human Rights. 
11.	The question which therefore faces this court is whether the justices on the facts of this case could properly deny the applicant a defendant’s costs order because his own conduct had brought suspicion on himself and misled the prosecution into thinking that the case against him was stronger than it was.
12.	It is important to remind oneself of the general rule, which is that a defendant is entitled to a defendant’s costs order prima facie if proceedings against him have been discontinued. The exception to that rule is narrowly drawn in order to respect the presumption of innocence which is both a fundamental principle of the common law and a right guaranteed by the Convention. The exception reflects the common sense view that if a defendant misleads the state into initiating proceedings against him as, for example, by making a spurious confession or advancing a demonstrably fraudulent alibi, he should not then be entitled to reimbursement by the state when in due course the proceedings against him collapse.
13.	The justices, however, had no grounds at all for regarding this as such a case. The proceedings were initiated on a complaint by Sarah James. The applicant was interviewed. He may have made some partial admissions but it is not in evidence before this court what in fact he did say. Whatever it was, he never retracted it. There is nothing to suggest that any admissions he may have made were false or in any way misleading. The case against him collapsed, not because of anything which he did or said, nor because of any misleading by him, but because Sarah James withdrew her complaint. That is something she was entitled to do, but the discontinuance of the proceedings was a direct result. The circumstances were such that in my judgment the applicant was plainly entitled to a defendant’s costs order. I would accordingly respond to this application for judicial review by quashing the justices’ order refusing a defendant’s costs order to the applicant. The consequence is that the applicant may renew his application to the magistrates’ court with every expectation that it will be granted.
14.	MR JUSTICE ASTILL:  I agree. 
15.	MR HOLT:  I am very grateful. My Lord, my application is for a costs order under section 16 out of central funds for this applicant. Your Lordships have the power to ‑‑ 
16.	THE LORD CHIEF JUSTICE:  Are you legally aided?  
17.	MR HOLT:  My Lord, no. 
18.	THE LORD CHIEF JUSTICE:  You are not?  
19.	MR HOLT:  No. Neither was he in the magistrates’ court. 
20.	THE LORD CHIEF JUSTICE:  I think the logic of the judgment that has just been delivered is that you should have such an order. 
21.	MR HOLT:  I am grateful.