2001/71
5 pages
ROYAL COURT
(Samedi Division)
26th
March, 2001
Before: Sir Philip Bailhache, Bailiff and
Jurats de Veulle and Bullen.
Ronald
George Romeril
-v-
The
Attorney General
Magistrate's Court Appeal
Appeal by case
stated under Article 18 of the Police Court (Miscellaneous Provisions)
(Jersey) Law, 1949 from refusal to award the appellant his costs, following
dismissal of 1 charge of assault and 1 charge of impersonating a police
officer.
Appeal allowed.
Advocate S.E. Fitz for the
Appellant
Advocate C. Yates on
behalf of the Attorney General.
JUDGMENT
THE BAILIFF:
- This is an appeal by Ronald George Romeril against the refusal
of the Relief Magistrate to award him costs following his acquittal on
charges of assault and impersonating a police officer contrary to Article
15(1) of the Police Force (Jersey) Law, 1974.
- The history of the matter can be shortly stated. The Appellant was driving
along Queens Road in a line of traffic when he was overtaken by a young
man on a motor cycle who was travelling, according to the Appellant, at a very high speed.
- The Appellant thought that the youth was driving dangerously
and was sufficiently irritated to follow him into a private road, where
the motor cyclist stopped.
There was a confrontation, marked - according to an independent
witness - by the use of bad
language on both sides.
- The motor cyclist alleged that the Appellant had said that he
was a police officer, and that he was going to 'book'
him. He also alleged
that the Appellant punched him causing a cut lip. It is worth stating that
the Appellant is a man of 67, whereas the motor cyclist was significantly
younger.
- The Appellant was interviewed by the Police and co-operated
fully in answering all the questions put to him by the investigating
officer. He denied the
allegations made against him, and at trial put his character in
issue. He is a man who has
given extensive honorary service to his Parish and has an unblemished
record apart from three convictions for speeding which took place 35, 21,
and 10 years ago, respectively.
- Some evidence was heard by the Relief Magistrate on 3rd
September, 1999, following which he adjourned the trial to 9th
December, 1999. On that day
the Appellant gave evidence.
The Magistrate said at the conclusion of that hearing that he
wished to reserve judgment, but indicated that he would deliver it before
Christmas. In the event
the trial did not resume until 16th March, 2000, when the Appellant was
acquitted. He
applied for his costs, but the Magistrate refused. On 23rd March,
2000, the Appellant applied to the Magistrate to state a case for the
opinion of this Court alleging that the refusal to award him costs was
wrong in law. It
was not until 16th January, 2001, that the Relief Magistrate
delivered a statement of case in which he gave his reason for refusing
costs as being that the Appellant had pursued the motor cyclist with a
view to confronting him and that to that extent the Appellant had brought
the charges upon himself.
- Miss Fitz, who appeared for the Appellant, submitted that the
Relief Magistrate was wrong to refuse to award costs. The power of the Royal Court to
order that the costs of an acquitted or discharged person be paid out of
public funds arises from Article 2 of the Costs in Criminal Cases
(Jersey) Law 1961. The relevant parts of
that Article are as follows:
"Subject to the
provisions of this Article, where any person is prosecuted or tried before a
Court to which this Article applies, the Court may (c) if the accused is
discharged from the prosecution, or acquitted, order the payment out of public
funds of the costs of the defence".
- In Attorney General -v- Bouchard (1989) JLR 350, the
Court considered the circumstances in which the Court should refuse to
make an order for costs, and adopted a practice direction issued under
equivalent English legalisation.
The relevant part of that practice direction provides:
It should be accepted as
normal practice that an order should normally be made for the payment of the
costs of an acquitted person out of central funds under section 3 of the 1973
Act, unless there are positive reasons for making a different order. Examples of such reasons are:
(a) where the prosecution
has acted spitefully or has instituted or continued proceeding without
reasonable cause, the Defendants costs should be paid by the Prosecutor under section
4 of the 1973 Act.
(b) where the Defendant's own conduct
has brought suspicion upon himself and has misled the Prosecution into thinking
that the case against him is stronger than it is, the Defendant can be left to
pay his own costs.
(c) where there is ample
evidence to support a conviction but the Defendant is acquitted on a
technicality which has no merit.
Here again the Defendant can be left to pay his own costs.
- It is worth noting in passing that the enactment of the Human
Rights Act 1998 has led to the deletion of paragraph [c], which we have
just cited, from the practice direction in England.
- In Bouchard the Court held that in example (b) above,
the phrases were to be read conjunctively so that the Defendant's
conduct should be such, not only as to have brought suspicion upon
himself, but also to have misled the Prosecution into thinking that the
case against him was stronger than in fact it was.
- Miss Fitz relied upon the Bouchard case and submitted
that the Appellant had been entirely co-operative with the police, and
could not be said to have misled the Prosecution in any way. She also contended that the mere
fact of following the motor cyclist into the private road could not be
said in itself to have brought suspicion upon the Appellant. We agree.
- Mr Yates for the Attorney General was not able to furnish any
other reason for refusing the Appellant his costs. It follows that the Magistrate did
not, in our judgment, apply the correct test in determining whether to
award costs, and that this appeal must therefore be allowed.
- We add a few words only by way of general guidance to the
Magistrates following the enactment of the Human Rights (Jersey) Law
2000 , which will, when it comes into force, incorporate into domestic
law provisions of the European Convention on Human Rights. In England, as we have said,
equivalent legislation has caused the amendment of the practice direction
which was considered and adopted in Bouchard. The same approach should be
adopted here.
- It sometimes happens that a Magistrate who has reached the
conclusion that an accused person should be acquitted nevertheless feels that the
accused's conduct is worthy of criticism in some way. It is tempting in such
circumstances to seek to penalise him by refusing to award him costs. This is not an appropriate
reaction. If an accused person
has been acquitted he has been found to be not guilty of the offence with
which he has been charged.
Other than in exceptional circumstances, and the practice direction
sets out an example of such circumstances, he should receive an award of
costs.
- Finally, counsel submitted that there was excessive delay not
only in bringing this case to a conclusion in the Court below but also in
providing the statement of case for appeal. The Magistrates Court
is a Court of summary jurisdiction.
Once a case has begun and evidence has been heard, any adjournment
should be measured in days rather than weeks, and never in months. Once the evidence has been heard to
a conclusion it is perfectly reasonable for the Magistrate to take a
little time to consider his decision, but a delay of 4 months is quite
unreasonable and unfair to an accused person. A delay of 10 months to
produce a statement of case for appeal is also far too long. These delays would, of themselves,
have justified the setting aside of the Magistrate's decision. We therefore allow the appeal and
order that the costs of the Appellant both here and below be paid out of
public funds
Authorities
Forrest -v- A.G. (10th October,
1994) Jersey Unreported.
Lagadec Doléance 20th
February, 1996) Jersey Unreported.
A.G -v- Bouchard (1989) JLR.350
Gilbraith -v- A.G (1992) JLR.190.
In South West Surrey Magistrate's
Court ex p. James (2000) Cr.L.R.692
