Update: crime

Hearsay evidence

The Divisional Court has recently revisited the familiar scenario of the defence advocate alleging that a prosecution application to remand a client in custody for breach of bail conditions is based on hearsay witness statements. In Thomas v Greenwich Magistrates Court [2009] EWHC 1180 (Admin) the claimant applied for judicial review of a decision of the defendant magistrates' court finding that he had breached his bail conditions and remanding him in custody.

The Crown's evidence before the magistrates' court consisted of a written statement from a police officer stating that he had seen an individual whom he recognised to be Thomas breaching his bail. He was remanded in custody and contended that the magistrates' court had erred in allowing the Crown to prove its case by relying on a written hearsay statement as its form prevented him from properly testing the evidence. The court held that bail proceedings were not the equivalent of criminal charges and that strict evidential rules did not apply. Accordingly, the magistrates' court had been entitled to allow the Crown to rely on the hearsay evidence of the police officer; it had properly assessed what weight to attach to that evidence, and it could not be said that its decision was irrational.

The right to retain property

An important decision reinforcing private rights was made in S and others v FACT [2009] EWHC 958 (QB). The police (P) seized a lot of property allegedly used in connection with copyright offences. That property was later released by the police into the possession of FACT (F) for the purposes of the police investigation. The CPS subsequently decided not to bring a prosecution and S requested the return of the seized property. F did not release the seized property because it was considering whether to bring a private prosecution. S issued proceedings against P and F, claiming delivery up of the seized property and damages for conversion.

F then began a private prosecution for copyright offences, which was still proceeding. In S's action, the preliminary issue concerned whether P was entitled to retain the seized property under s.22, PACE 1984, once the CPS had decided not to prosecute, for the purpose of assisting a private prosecution by F.

The court held that the power of the police under the Act to seize, use and retain property was conferred on them for the better performance of their public functions and for law enforcement purposes. Public law enforcement purposes did not include the seizure, use or retention by the police of private property to assist private interests. It was not within the contemplation of the legislature that private property, once seized by the police, could be used by a private body for its own purposes (including considering whether it should bring a private prosecution or bringing a private prosecution). While the right of private bodies or individuals to bring a private prosecution was well established, it did not carry with it the automatic right to override private property rights in the absence of an order of the court, nor did it carry with it the powers conferred by Parliament by the police. Accordingly, the police had no power to retain property lawfully seized under the Act against the wishes of the person otherwise entitled to possession of it once a decision not to prosecute had been taken so that a private body could consider whether to bring a prosecution, or while that private prosecution was being brought.

Re-claiming professional fees as 'out-of-pocket' expenses

In 2001 the SFO began an investigation into Mr. Brewer's affairs in the UK and US. Mr Brewer entered into an agreement with an American attorney to act on his behalf throughout the investigation. Mr Brewer was charged with money laundering offences and a representation order was granted for his UK solicitors. He was acquitted at the resulting trial. The trial judge made a defendant's costs order to be taxed and a similar order in relation to Mr Brewer's 'out-of-pocket' expenses.

The matter before Holroyde J in the QBD (Brewer v Secretary of State for Justice [2009] EWHC 987, Solicitors Journal 153/19, 19 May 2009) was Mr Brewster's appeal against a costs judge's decision that he could not recover from central funds the fees paid to the American attorney after the date of the representation order, and only his expenses on travel and subsistence were recoverable.

The court held that the expense of paying fees in respect of professional services was in principle capable of being an out-of-pocket expense. However, a claim for expenses incurred by a defendant during the currency of a representation order in respect of legal professional services was likely to fail. Holroyde J said that solicitors acting under a representation order would be expected to engage and pay a person (including a lawyer) who, for reasons particular to the case, was in a position to provide particular assistance to the defendant's case. Alternatively, the solicitors could instruct the other person to provide legal services and claim payment for those services as a disbursement.

A broad interpretation of 'out-of-pocket' expenses is to be welcomed, but care must be taken between solicitor and client when deciding who pays for what during the currency of a representation order. In similar cases, consideration should be given to the guidance issued by Holroyde J at para.49 of this judgment.

Defendant's costs order after acquittal on a technicality

Mr Spiteri was convicted in the magistrates' court of driving with excess alcohol, but that conviction was quashed on appeal to the Crown Court because, when being dealt with at the police station following his arrest, Mr Spiteri had not been asked a required question (namely, question A14 of Form MG/DD/A of the pro forma procedure document). However, the Crown Court refused to make a defendant's costs order because Mr Spiteri's acquittal arose from an important but unmeritorious point '“ the Crown Court was satisfied that Mr Spiteri had driven well over the limit and he had brought the prosecution on himself.

Mr Spiteri brought judicial review proceedings (R (Spiteri) v. Basildon Crown Court [2009] EWHC 665). The court held that a procedural requirement, the failure to comply with which meant that a conviction could not stand, was fundamental and not an 'unmeritorious technicality'. Moreover, it was contrary to the presumption of innocence to approach the issue of costs on the basis that Mr Spiteri was guilty of the offence. Finally, it is not appropriate to refuse a defendant's costs order on the basis that he brought the prosecution upon himself; more was required, such as a defendant having misled the prosecution.

Mr Spiteri's position here is not unfamiliar, but no matter how begrudgingly a court acquits a defendant on a technicality, whatever its opinion of the other evidence in the case, an application for a defendant's costs order raises legal, not moral, questions. Such an application cannot be refused simply as a mark of dissatisfaction with the defendant's alleged conduct.

Defendant's costs order after acceptance of a caution

A train passenger had been caught sat with his feet up on the stanchion between two seats. He was subsequently charged with 'behaving in a disorderly, indecent or offensive manner by putting his feet on a seat while on a train', contrary to local byelaws. Following representations by the defendant's solicitors to the prosecuting authority, a formal caution was offered and accepted and the charges were withdrawn. The solicitors applied for a defendant's costs order but the magistrates' court refused on the basis that, by the defendant's admitted conduct, he had brought the proceedings upon himself.

The Divisional Court in Dowler v Merseyrail [2009] EWHC 558 made the same point as in Spiteri, that more was needed than a defendant 'bringing the prosecution upon himself' to justify a refusal to make a defendant's costs order. The court went on to discuss the relevance of the defendant accepting a caution with reference to R (Stoddard) v Oxford Magistrates' Court [2005] EWHC 2733. A caution is not necessarily to be equated with a conviction for the purpose of an application for a defendant's costs order. It is for the prosecuting authority to decide whether or not a caution would be appropriate. If a summons is issued and then the prosecuting authority decides a caution is appropriate, the withdrawal of the court proceedings still provides a basis for a defendant's costs order application. In Dowler, the court was critical of the magistrates' failure to consider whether in the case of this minor offence it would not have been more appropriate for the respondents to have offered a caution from the outset, rather than to serve a summons.

This is another scenario not unfamiliar in magistrates' courts and an application for a defendant's costs order should not be forgotten when proceedings are withdrawn after a caution is accepted. A refusal to make a defendant's costs order in a case such as this must be justified with clear reasons above and beyond the fact of the caution.

Prosecution costs orders for expenses not incurred by the CPS

Mr Balshaw received cash payments from his co-accused in the course of a wider conspiracy. He was convicted and ordered to pay to the CPS the cost of an accountancy report commissioned by the police in the course of an investigation that led to his conviction. Mr Balshaw appealed that order on the basis that s.18 of the Prosecution of Offences Act 1985 required that costs paid to the prosecutor were just and reasonable, and that the CPS had incurred no liability to pay for the report.

The Court of Appeal in Balshaw v CPS [2009] EWCA Crim 470 agreed that an order to pay costs to a prosecutor for which the prosecutor was not liable was neither just nor reasonable under s.18 of the Act, but said that there was no principle that the CPS might only recover those costs directly incurred. The Act did not prevent the recovery by a prosecutor of fees incurred. However, the court would have to be satisfied that it would have been just and reasonable for the CPS itself to incur those fees.