Jersey Unreported Judgments
You are here: BAILII >> Databases >> Jersey Unreported Judgments >> AG v Reis [2023] JRC 043 (16 March 2023)
URL: http://www.bailii.org/je/cases/UR/2023/2023_043.html
Cite as: [2023] JRC 43, [2023] JRC 043
|
|
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Jersey Unreported Judgments |
||
|
You are here: BAILII >> Databases >> Jersey Unreported Judgments >> AG v Reis [2023] JRC 043 (16 March 2023) URL: http://www.bailii.org/je/cases/UR/2023/2023_043.html Cite as: [2023] JRC 43, [2023] JRC 043 |
||
[New search] [Help]
|
Before : |
R. J. MacRae, Esq., Deputy Bailiff. |
The Attorney General
-v-
Magno Raimundo Gaspar Reis
Ms L. B. Hallam, Crown Advocate.
Advocate A. E. Binnie for the Defendant.
JUDGMENT
THE DEPUTY BAILIFF:
1. On 12 December 2022, I heard argument in relation to the defence costs in relation to this matter and reserved my decision.
2. The power to award costs is contained in Article 2(1) of the Costs in Criminal Cases (Jersey) Law 1961 ("the Law"). Article 2(1) provides, so far is relevant:
3. On the face of it, Article 2 provides that if the defendant is convicted then he may be ordered to pay the whole or part of the prosecution costs, and only if he is discharged from the prosecution or acquitted may the Court order out of public funds the payment of his costs.
4. Nonetheless, this Article has been the subject of consideration by the Royal Court on a number of occasions. One such case is AG v Gouveia [2000] JLR 324, where Birt, Deputy Bailiff (as he then was), considered an application for costs in circumstances where the defendant pleaded not guilty to twelve counts on an indictment and on the last working day before trial offered to plead guilty to one of those counts, but to maintain their not guilty pleas in respect of the other five counts. This was accepted by the prosecution and the defendant subsequently applied for costs in respect of the counts to which they had pleaded not guilty. They argued that they had been discharged or acquitted within the meaning of Article 2(1)(c). The defendant's application for costs was rejected. Birt, Deputy Bailiff, made some helpful observations as to his interpretation of the provisions in Article 2. At page 329, he observed that if a defendant was indicted for two counts and pleaded guilty to one count and not guilty to the other and there was a trial on that second count leading to an acquittal, then it could not be right that the Court did not have a power to award the costs of the trial to the defendant merely because the defendant had pleaded guilty to another 'perhaps unrelated and less serious charge. It would require very clear language to drive the Court to the conclusion that it did not have jurisdiction to award costs in such circumstances'. In relation to the facts of the case before him, Birt DB made the following observations at page 331 which were, in some respects, germane to this case. He said:
5. Towards the end of the judgment, the Deputy Bailiff made some helpful comments, as follows:
6. Finally, the Court observed
7. In AG v Troy [2003] JRC 099, Sir Philip Bailhache, Bailiff, considered a costs application in circumstances where the defendant was found guilty of common assault and not guilty of a substantially more serious charge of indecent assault.
8. The Bailiff referred to previous decisions on costs including Gouveia, in particular the paragraph that I have emphasised above. At paragraphs 12 and 13 of the judgment, the Bailiff said:
9. I was also referred to the case of AG v Lyons [2022] JRC 223. In that case, the defendant was acquitted by the jury of four counts of grave and criminal assault but convicted of a count of common assault left to the jury by the judge in his summing up. In that case, as recorded at paragraph 8 of the judgment of Commissioner Clyde-Smith, the Crown argued that at no stage had the defendant offered a plea of guilty to common assault as an alternative to a count of grave and criminal assault. The Commissioner agreed that the defendant had offered no formal guilty plea of common assault, but his defence case statement contained an admission to that effect (paragraph 20 of the judgment). The judge concluded that it was fair for the defence to contend that the defendant had 'won on every issue in the case' and in those circumstances a defendant's costs order was made. As noted, every case is fact specific and the Court has a wide discretion on cost matters. I am not sure that I would necessarily have reached the same decision as the Commissioner did in the case of Lyons.
10. Be that as it may, having referred to the principal cases to which I was referred, I now turn to the facts of this case. They can be taken shortly. The Defendant was indicted on a single count alleging grave and criminal assault. The alleged offence occurred on 27 September 2021. The Defendant obtained legal aid in February 2022.
11. The Defendant offered to plead guilty to common assault on 5 April 2022. He was tried by the jury and, on 5 October 2022, the jury returned a unanimous verdict of not guilty on the charge of grave and criminal assault and delivered a unanimous verdict of guilty to common assault which was not separately indicted but was an alternative to grave and criminal assault. He was subsequently sentenced on 15 December 2022. An application is made for his costs under Article 2(1)(c).
12. He received legal aid under the old scheme since the guilty plea to common assault was offered (on a basis) on 5 February 2022. The basis of the plea offered was a realistic one and was likely to have been the basis upon which he was convicted by the jury, namely that he delivered a single punch to the victim's face.
13. The Crown objected to an order of costs in the Defendant's favour on the footing that there was no jurisdiction for the Court to make such an order. The Defendant was not discharged nor was he acquitted. He was indicted and convicted. No guilty plea was ever entered and, indeed, owing to the emergence of a possible defence of self-defence by reason of the evidence given at trial, the jury was directed that there were three verdicts open to them:
(i) Guilty of grave and criminal assault;
(ii) Guilty of common assault; and
(iii) Not guilty.
14. The jury rejected the plea of self-defence and found the Defendant guilty of common assault.
15. The Crown went on to say that if, contrary to its submission, the Court did have a power to make a costs order on the facts of this case then the Crown would not resist such an order from the date of the offer to plead guilty to common assault, but that an award of a percentage of the costs would be appropriate, bearing in mind the fact that the plea of self-defence was pursued by the defence at trial and that the Defendant was ultimately convicted of an offence.
16. Defence counsel said that the best the Defendant could do on the facts of this case was to offer a plea of guilty to common assault - he could not enter a guilty plea to common assault because one did not appear on the indictment.
17. The situation that arose in this case, i.e. a defendant indicted for grave and criminal assault but convicted by the jury of common assault, is not unusual. However, in most circumstances it would not, in my judgment, give rise to an application for a defendant's costs order which would have any prospect of success.
18. In two cases heard last year, the defendant was acquitted by the jury of grave and criminal assault and convicted of common assault. The first involved a case of domestic violence where the defendant was indicted on two counts of grave and criminal assault but convicted by the jury of common assault - see AG v Williams [2022] JRC 103. Later in the year, a young offender was convicted by the jury of two counts of common assault as an alternative to allegations of (inter alia) grave and criminal assault.
19. However, in neither of those cases had the defendant offered guilty pleas to common assault as this Defendant had. The Defendant offered such a plea both unequivocally and on the basis upon which he was in all probability convicted by the jury. It would not assist a defendant on a subsequent costs application to rely on an offer to plead guilty to common assault on a basis which was wholly different from that for the basis upon which he was convicted (a ruling under Article 50 of the Criminal Procedure (Jersey) Law 2018 might be required to establish this). However, in this case the Defendant offered to plead guilty at an early stage to common assault on the basis upon which he was, in all likelihood, convicted.
20. What is the correct order to make in these circumstances having regard to the principles referred to above, and the terms of Article 2? The Crown is correct that the Defendant in this case was convicted. However, he was convicted of an offence that he had always offered to plead guilty to on a basis that was realistic. He was only unable to plead guilty to that charge because it was not contained in a separate count on the indictment and in reality in those circumstances (putting to one side the issue of self-defence) the only matter which was contested on the eve of his trial was whether or not the assault which he admitted he committed was a common or a grave and criminal one. On that issue, he was acquitted. The outcome of this case, taken overall, was tantamount to an acquittal. Accordingly, the Court's power to make a costs order under Article 2 is engaged and the question of discretion arises. Both advocates were agreed that in the circumstances of this case it was right for the Court to order that a percentage of the Defendant's costs be recovered and having regard to the Defendant's reliance on the evidence of self-defence, evidence which was explored and relied upon, albeit perhaps not foreseen, by the Defence at trial and the rejection of that defence. In the exercise of my discretion, the appropriate order is that the Defendant receive 75% of his costs incurred since 6 February 2022 from central funds to be taxed if not agreed.
21. I note under Article 2(4) that the costs of a defence payable in these circumstances shall be 'such sums as appear to the Court reasonably sufficient to compensate the accused for the expenses properly incurred by the accused...'.
22. As I said in the course of argument, the starting point for assessing what sum is 'reasonably sufficient' in the circumstances of this case might, in the exercise of the taxing officer's discretion, be the sum which is payable to defence counsel pursuant to the new legal aid guidelines which came into force on 1 April 2022. I note that under Article 2(7) of the Law, that the amount of a costs order 'shall' be determined by the Magistrate or the Royal Court by way of summary assessment. I was not invited to make a summary assessment of the costs in this case and in future the parties should have sufficient details of the costs available to the Court in order for such a summary assessment to be made at the end of the trial, although the Court may wish to delegate the summary assessment to the Judicial Greffier. I note that in relation to assessment of costs, Article 5A says that the amount awarded:
23. This amendment to the Law was made in 2018 by Schedule 4 of the Criminal Procedure (Jersey) Law 2018 and subsequently implemented. These provisions were, it appears, part of the remaining uncommenced provisions of the Criminal Procedure Law which came into force on 1 October 2021. It does not appear that this amendment to the Law has received previous judicial attention. Article 5A goes on to provide at 5A(2):
24. It is clear from the amendments to the Law introduced in 2018, including Article 2(7) and Article 5A that courts are encouraged to make a summary assessment of costs, and that not only do the costs that the court must find as "reasonably sufficient" need to be "actually, reasonably and properly incurred" but such costs are further potentially limited as they must be objectively "reasonable in amount". The clear implication is that the court should exercise its powers to ensure that only a reasonable payment, and no more, is awarded to a Defendant who is acquitted or indeed to the Crown if it seeks its costs, which it is entitled to do when a Defendant is convicted either by their own plea or after a trial.
25. What should the starting point be for assessing what is objectively reasonable? As indicated at paragraph 22 above, in the course of argument I suggested that the starting point for ascertaining what sum might be 'reasonably sufficient' for the purpose of Article 2(4) is the amount payable to defence counsel pursuant to the new legal aid guidelines. That remark was made prior to considering the relevance to the amendments to the Law made in 2018 to which I have referred above. Although I have not heard argument from the Law Society or from the Attorney General in his capacity as partie publique / guardian of the public interest in relation to this issue, it was difficult to identify any other appropriate starting point than the legal aid rates underpinned by the Access to Justice (Jersey) Law 2019, and contained in the Legal Aid Guidelines made under Article 7 which were the subject of extensive consultation. Article 7(2)(G) provides that legal aid guidelines may make provision for determining the rates and amounts of payments for the provision of legal aid, which they do. If such an approach is adopted there will often, if not usually, be a shortfall between the legal fees charged to the defendant who has been acquitted and what may be recovered from central funds which, for these purposes, are the Court and case costs budget of the Judicial Greffe. Such an approach may, in the context of a privately paying client of modest means (as opposed to a wealthy defendant who has chosen to engage a team of expensive lawyers), may be thought to be unjust. However, it does not give rise to any human rights considerations as there is no right under the European Convention on Human Rights, which of course has been incorporated into domestic law by the Human Rights (Jersey) Law 2000, to recover costs in such circumstances. This was established by the European Court of Human Rights in the case of Masson v The Netherlands (1996) 22 EHRR 491 and Ashenden v United Kingdom (2012) 54 EHRR 13 where it was said:
The matter was also considered by the English High Court in R (Henderson) v Secretary of State for Justice [2015] EWHC 130 (admin) which considered the position of a defendant who paid for his own lawyers when successfully defending criminal proceedings having wrongly come to the conclusion that he was not entitled to legal aid. Article 6(3)(c) of the Convention creates a duty on states to provide legal assistance in criminal cases to those who could not afford it:
26. In many jurisdictions, costs in favour of an acquitted defendant are either never awarded or awarded exceptionally rarely. An example of the former is Guernsey where such awards are not made and examples of the latter are Scotland where the acquitted person must prove that the prosecution was vexatious, and Canada where such orders are exceptionally rare and only, it is understood, made when a Court has found a breach of the Canadian Charter of Rights and Freedoms.
27. In England and Wales, privately funded defendants who are acquitted can only recover their legal costs to the extent that they would have received remuneration from public funds had they applied for but been refused legal aid in the Crown Court, the equivalent (for these purposes) of the Royal Court. Persons who obtain an order for payment of their costs under Section 15 of the Prosecution of Offences Act 1985 (as subsequently amended), in relation to Crown Court proceedings, only receive a payment that will not exceed the fee set out in Schedule 1 to the Criminal Defence Service (Funding) Order 2007 or Schedule 1 to the Criminal Legal Aid (Remuneration) Regulations 2013 that applied at the time the proceedings were commenced. 'Reasonable remuneration' is to be interpreted as if the determination were being conducted under the 2007 Order or the 2013 Regulations to which I have just referred. Accordingly, although the matter may need to be revisited on a subsequent occasion at a hearing to which additional parties are convened, my current view is that the appropriate starting point in order to determine objectively the costs which are 'reasonable in amount' pursuant to Article 5A (which must in any event be summarily assessed) is the sum recoverable from time to time by lawyers in receipt of legal aid under the guidelines issued pursuant to the Access to Justice (Jersey) Law 1999.
28. Nothing in this judgment affects the power of the Court to make a wasted costs order against the defence or the prosecution under Article 109 of the 2018 Law. Accordingly in the event of, say, a wholly unreasonable commencement of a prosecution / evidence of bad faith on the part of prosecution or defence, the Court's powers to order costs would not be subject to the requirement that such costs be objectively reasonable in amount. Such orders are subject to the considerations and three stage test set out in AG v Baksa [2021] JRC 328.