CO/10188/2011 
Neutral Citation Number: [2012] EWHC 3879 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Wednesday, 7 November 2012
 
B e f o r e:

LORD JUSTICE MOSES 

MR JUSTICE SIMON
- - - - - - - - - - - - - - -
Between: 
THE QUEEN ON THE APPLICATION OF REES 
Appellant

v 

SNARESBROOK CROWN COURT 
Respondent 
- - - - - - - - - - - - - - -
Computer‑Aided Transcript of the Stenograph Notes of  
WordWave International Limited
A Merrill Communications Company 
165 Fleet Street  London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - -
MS S HOWE (instructed by Clive Rees & Associates) appeared on behalf of the Appellant
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED
- - - - - - - - - - - - - - -
J U D G M E N T
1.	LORD JUSTICE MOSES:  I shall ask Simon J to give the first judgment. 
2.	MR JUSTICE SIMON:  This application for judicial review raises a short point on the issue of costs.  Strictly speaking, this should have been an application to challenge a refusal to state a case.  However, if we conclude that the decision was wrong in law, then it seems sensible to deal with the merits of the costs issue, rather than remit the case to the Crown Court to state a case, which would then have to be considered by this court on some future occasion.  The fact that it raises a point of law is not a reason for not proceeding in the conventional manner.  
3.	The claimant is a sheep farmer who was charged with a single offence of cruelty, contrary to Section 4 of the Animal Welfare Act 2006.  Following his conviction before Havering Magistrates on 21 January 2011, an appeal was heard before HHJ Hughes QC and two magistrates at Snaresbrook Crown Court over a period of two days, on 29 June and 7 July 2011.  The facts as they appear from the papers are that, on 23 and 24 March 2010, the claimant had purchased a consignment of 229 cull sheep for slaughter.  When they arrived at the slaughter‑house after a five hour journey, one of the sheep was found by the duty vet to be very unwell, so unwell that it had to be immediately destroyed.  It was the prosecution case that it had chronic mastitis, that it must clearly have been unwell when it was loaded and, therefore, it must have suffered unnecessarily during the transport.  
4.	It was the defendant's case that the sheep was not exhibiting any signs of sickness when loaded, and that chronic mastitis is a common condition among cull sheep and was unlikely to be related to the temperature at which it was carried.  In order to determine whether the condition of the sheep was related to the mastitis, it would be necessary to analyse, among other things, the sheep's udders and blood samples, as well as the internal temperature of the truck in which the sheep were loaded.  This point was supported by a veterinary expert who gave evidence on behalf of the defence to this effect, as indeed he had before the Magistrates.  It was clear that the prosecution had not taken blood and other samples and had not measured the temperature of the truck.  
5.	On this basis, on the final day of the appeal, the defence, by Ms Howe, submitted that the prosecution was an abuse of process since, without the samples, it was impossible to test whether the illness of the sheep was connected to the temperature carried.  She referred to the case of Leatherland and Pritchard v Powys County Council [2007] EWHC 148.  We are told that the case had also been cited in front of the magistrates.  With some reluctance, the court agreed with the submission:
"We sympathise greatly with the prosecution in this case as we had doubts about the veracity of the defendant and his witness but we do feel that, as he or his expert have not had the opportunity to take or receive samples from the dead sheep, with some reluctance we find this case is exceptional and that an abuse of process did occur."
6.	On the application that the costs in the Magistrates' Court and the Crown Court should be paid out of central funds under Section 16(3) of the Prosecution of Offences Act 1985, the court added this:
"We have, as I have said, great sympathy with the prosecution.  We are not certain that your client told the truth but we have found in his favour because he has not had the opportunity to take samples.  We do not feel that a costs order should follow in the circumstances of case."
7.	Ms Howe submits that the refusal to allow the claimant his costs was unlawful and that, in addition, the judge's comments were a violation of the presumption of innocence, as provided by Article 6 of the European Convention on Human Rights, see the decision of the European Court of Human Rights in Hussain v United Kingdom [2006] 43 EHRR 22.  
8.	Paragraph II of the Practice Direction (Costs: Criminal Proceedings) [2004] 1 WLR 2657 provides that, where a person has been acquitted, the court may make a costs order in the defendant's favour.  Paragraph II(1)(1) relates to proceedings in a Magistrates' Court and paragraph II(2)(1) relates to proceedings in the Crown Court.  They are in similar terms so that such an order should normally made, whether or not an order for costs is made between the parties, unless there are positive reasons for not doing so.  Thus, 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 reasons that should be identified."
9.	There are two aspects of the decision not to order costs which need to be considered: first, whether the case came within the class of cases where the defendant should be deprived of his costs, despite his acquittal; and, secondly, whether the court infringed the principle that there should be no suggestion that the defendant was guilty of the criminal conduct which was charged.  So far as the first point is concerned, it is important to bear in mind that the relevant question is whether there are positive reasons for depriving a defendant of his costs.  One example is given in the practice direction, indeed it is the only example, and, in relation to this example, there are a number of cases which make it clear that the two conditions of disentitlement to costs are to be read conjunctively.  The defendant's own conduct must have brought suspicion on himself.  He must have misled the prosecution into thinking that the case was stronger than it was, see R (Spiteri) v Basildon Crown Court [2009] 5 Costs LR 772 at paragraph 9 and Dowler v Merseyrail [2009] EWHC 558 at paragraph 10.  However, I do not regard this example as being exhaustive of circumstances in which costs might be refused.  Subject to a matter that I will come to, a court might, for example, decline to order costs in a case in which the court was sure that a defendant had perjured himself or where the prosecution has been ambushed by the nature of a defence.  
10.	In the present the case, the reasons for depriving the defendant of his costs were not clearly articulated and, insofar as they were, did not meet the test set out in paragraph II(2)(1).  The positive reason is not set out and the matter is not made any clearer by the reference to the court not being "certain that the defendant told the truth".  If credibility was a reason for depriving a party of costs, one would expect the court to be sure of the matter, although without expressing a view which might be taken as suggesting that the defendant was guilty of the offence.  
11.	In these circumstances, I would quash the order and substitute an order that the claimant is to be paid out of central funds, both in the Crown Court and the Magistrates' Court, where the issues arose in similar terms.  These costs to be taxed in the usual way.
12.	LORD JUSTICE MOSES:  I agree.
13.	MS HOWE:  I am most grateful.  Might I also have an order for costs of today's hearing, please, under paragraph ‑‑ 
14.	LORD JUSTICE MOSES:  Yes, is the answer.
15.	MS HOWE:  Paragraph 2.3.1 of the practice direction.
16.	LORD JUSTICE MOSES:  Yes.  Do you agree? 
17.	MR JUSTICE SIMON:  Yes.
18.	LORD JUSTICE MOSES:  Yes.
19.	MS HOWE:  I am grateful.
20.	LORD JUSTICE MOSES:  Thank you.