Neutral Citation Number: [2009] EWHC 665 (Admin)
Case No: CO/6371/2008 
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Date: Thursday, 19th March 2009
 
B e f o r e:

LORD JUSTICE RICHARDS 

MR JUSTICE TUGENDHAT 
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Between: 
THE QUEEN on the application of
ELLIOTT SPITERI 
Claimant

v 

BASILDON CROWN COURT 
Defendant 
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Ms Renée Calder (instructed by Messrs Geoffrey Miller Solicitors) appeared on behalf of the Claimant 
Mr Richard Potts (instructed by the Crown Prosecution Service) appeared on behalf of the Defendant 
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J U D G M E N T 

1.	LORD JUSTICE RICHARDS:  On 6th March 2008, the claimant, Mr Spiteri, was successful in an appeal to Basildon Crown Court against his conviction by the Magistrates' Court of an offence of driving with excess alcohol.  The conviction was quashed on the ground that the court was not satisfied that the police asked a required question in the course of the breath test procedure, namely question A14 set out in the MG/DD/A procedure booklet, and that failure to ask that question was fatal to the validity of the procedure.  
2.	After the court had so ruled, counsel for the claimant applied for costs; that is to say, as is common ground although it was not expressly stated at the time, an application for an award of costs from central funds, a defendant's costs order.  The court however refused the application, stating that the claimant had brought the prosecution entirely upon himself by his own conduct.
3.	The claimant, wishing to challenge the lawfulness of the refusal of costs, applied to the Crown Court to state a case.  The court refused the application.  A letter from the court set out the following comments of the judge who presided over the appeal: 
"This is a case where the Defendant was acquitted on a technicality.  We were satisfied that although the procedure of Form Mg DD/A (ie taking of a specimen at the police station) was carried out, question D14 [i.e. A14] was not asked.  (This was due to an interruption at the point the question was reached).  The prosecution accepted and referred us to authorities which made it clear that the absence of the question was fatal to the rest of the procedure.
Accordingly, we acquitted the Defendant on an important, but unmeritorious technicality.  We were, however, satisfied that he had been driving whilst substantially over the legal limit, indeed the defence expert witness suggested that the specimen taken at the police station indicated he had been drinking shortly before his arrest.  The whole case hinged on the absence of the one question during the procedure at the police station.  
In the circumstances, we felt that the defendant had amply brought the Prosecution upon himself.  He was well over the limit whilst driving.  Accordingly, we exercised our discretion in those circumstances not to order costs from central funds."
Although there has been no formal certificate of the kind referred to in rule 64.7(6) of the Criminal Procedure Rules, the judge's comments can properly be taken as the reasons for the court's refusal to state a case.
4.	The claimant then brought judicial review proceedings to challenge the refusal to state a case.  Permission to apply was granted by Foskett J on the papers and the matter has come before us technically for a substantive hearing of the challenge to the refusal to state a case.  But if we conclude that the Crown Court's refusal to state a case was wrong in law, we are very sensibly invited by both parties to go on to deal with the merits of the costs issue rather than remitting the case to the Crown Court to state a case, which would then have to be considered by this court on a future occasion.
5.	In my judgment, the Crown Court was wrong in law to refuse the application to state a case on the costs issue.  A court can refuse to state a case if it considers the application to be frivolous.  For reasons that will become apparent, however, the claimant's application was in no way frivolous but was, on the contrary, one of substance.
6.	Taking up the invitation of the parties, I therefore propose to go on to consider the merits of the costs issue, treating the application for this purpose as a direct claim for judicial review of the Crown Court's decision to refuse the claimant a defendant's costs order.  
7.	The award of defence costs from central funds is covered by Practice Direction (Criminal Proceedings: Costs) [2004] 1 WLR 2657.  Paragraph II.1.1 relates to proceedings in the Magistrates' Court and paragraph II.2.1 to proceedings in the Crown Court.  They are in very similar terms.  I shall quote the provision relating to the Crown Court, even though it focuses on trials on indictment rather than on appeals from the Magistrates' Court.  The essential principles are plainly the same:
"Where a person is not tried for an offence for which he has been indicted, or in respect of which proceedings against him have been sent for trial or transferred 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 between the parties is 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. 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."
8.	Considering the matter in the light of that Practice Direction and general principle, there are in my view two problems about the Crown Court's decision in the present case.  First, in its reasons for refusing to state a case, the court described the relevant procedural failure as an important but unmeritorious technicality.  It was and is, however, accepted by the Crown that the relevant procedural requirement was fundamental and that the conviction could not stand if it was not satisfied.  It cannot fairly be described as an unmeritorious technicality.  The Crown Court evidently regarded the point as unmeritorious because it was satisfied that the claimant had in fact been driving while substantially over the legal limit for alcohol.  But the claimant was acquitted of the offence charged and it would be wrong in principle and contrary to the presumption of innocence to approach the issue of costs on the basis that he was in truth guilty of that offence.  This is underlined by the statement I have quoted from the Practice Direction that the court, when declining to make a costs order, should explain that the reason for not making an order does not involve any suggestion that the defendant is guilty of any criminal conduct.
9.	Secondly, as already mentioned, the specific reason given by the court at the time of the decision to refuse costs, and picked up in the reasons for refusing to state a case, was that the claimant had brought the prosecution upon himself by his own conduct.  It seems to me that there was ample material upon which the court could conclude that he had brought the original prosecution upon himself by his own conduct.  However, that was not a sufficient basis for the refusal of costs.  The Practice Direction gives as an example of positive reasons for not making a defendant's costs order "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" (emphasis added).  There is no suggestion whatsoever in this case that the claimant's conduct misled the prosecution into thinking that the case against him was stronger than it was.  Thus the specific example of positive reasons for not making an order which is given in the Practice Direction is plainly inapplicable here; and merely to have brought suspicion upon oneself or to have brought the prosecution upon oneself is plainly insufficient to amount to positive reasons for not awarding costs.
10.	It has been plausibly suggested by counsel that the Crown Court may have had in mind the terms of earlier practice directions which included as a reason for refusing a defendant's costs order the position where there was ample evidence to support a conviction but the defendant was acquitted on a technicality with no merits: see, for example, the practice direction at [1991] 2 All ER 924, paragraph 2.2. But that wording was removed from the practice direction in 1999, prior to the coming into force of the Human Rights Act 1998, and is conspicuously absent from the current version of the practice direction.  That is something to which lower courts should have careful regard when it comes to considering applications for costs orders.  
11.	In any event, I am satisfied that in this case the Crown Court did err in law in giving the reason it did for refusing to award the claimant his costs and that no good reason has been identified for the refusal of such an award.  What I have said also provides the reasons for my conclusion that the Crown Court was wrong to refuse to state a case.
12.	I would therefore allow the application for judicial review in the form I have indicated.  I would quash the Crown Court's decision to refuse a defendant's costs order.  It seems to me that the only reasonable order that could be made by the Crown Court in this case is the making of a defendant's costs order and in those circumstances it is unnecessary to remit the case to the Crown Court.  This court can properly use its own powers to substitute a defendant's costs order in the claimant's favour.  Subject to hearing further from counsel, I think that that would be an order to cover the proceedings in the Crown Court and in the Magistrates' Court.  
13.	MR JUSTICE TUGENDHAT:  I agree.
14.	MS CALDER:  Could I ask for costs out of central funds for today? 
15.	LORD JUSTICE RICHARDS:  First of all, it is right, is it, that the defendant's costs order extends to the Magistrates' Court as well as the Crown Court? 
16.	MS CALDER:  Yes, it is automatic, if it is quashed, yes.  
17.	LORD JUSTICE RICHARDS:  Thank you.
18.	MS CALDER:  Could I ask for the costs of this court out of central funds? 
19.	LORD JUSTICE RICHARDS:  Now, can there be an order, a costs from central funds order, for a judicial review application?  This is where I am going to put the associate on the spot.  I am not sure.
20.	MS CALDER:  Yes. Well, we have always had it before.
21.	LORD JUSTICE RICHARDS:  You have, have you?
22.	MS CALDER:  Yes.
23.	LORD JUSTICE RICHARDS:  It does not follow of course that there is jurisdiction but ‑‑ 
24.	MS CALDER:  I had a similar case in December where the Harrow Crown Court had refused to state a case, so we came for judicial review to get them to state a case and the court went on to deal with the whole matter and we were awarded costs.
25.	LORD JUSTICE RICHARDS:  (pause) Well, we will make such an order on the assumption that we have the jurisdiction to do so.  If it turns out that we have not got that jurisdiction and that the order is ineffective, you will have to come back and see what substitute order could be made.  It is difficult to see that there could be anything by way of a substitute  order beyond no order as to costs because you plainly cannot seek your costs from the Crown, who have not caused the problem and indeed have helped the problem to be sorted out.
26.	MS CALDER:  Yes, thank you.
27.	LORD JUSTICE RICHARDS:  Thank you very much.