Najib And Sons Ltd v Crown Prosecution Service [2018] EWCA Crim 1554; 2018] 4 W.L.R. 144, CA.
Summary
Najib And Sons Ltd v Crown Prosecution Service [2018] EWCA Crim 1554 is a decision of the Court of Appeal (Criminal Division), Lord Justice Leggatt and Mrs Justice McGowan, concerning an application for costs following a successful appeal against conviction.
The appellant company had been convicted and sentenced for an offence under regulation 17(1) of the Transmissible Spongiform Encephalopathies (England) Regulations 2010 of failing to give an inspector assistance required to take samples. The Court of Appeal quashed the conviction and sentence in a judgment handed down on 26 April 2018 on the ground that under the Regulations an inspector had no power to require the appellant to provide samples and the appellant’s failure to do so therefore did not constitute an offence in law.
Following the successful appeal, the appellant applied for its costs both in the Court of Appeal and below to be paid by the Crown Prosecution Service. The application was made under regulation 3 of the Costs in Criminal Cases (General) Regulations 1986, which provides that a court may order one party to pay the costs incurred by another party as a result of an unnecessary or improper act or omission. The application was determined on written submissions without an oral hearing.
The court set out the established principles governing such applications, derived from R v Cornish [2016] EWHC 779 (QB). Those principles include that the mere failure of a prosecution does not satisfy the threshold criteria; that improper conduct means an act or omission that would not have occurred if the case had been conducted properly; that the test is one of impropriety, not unreasonableness, with the conduct being starkly improper; that even where a case fails as a matter of law, that does not necessarily mean the decision to charge was improper because legal points are often properly arguable; and that such applications will be very rare and restricted to exceptional cases involving clear and stark error.
The court rejected the argument that costs should be awarded in respect of the entire proceedings. Although the prosecution had failed as a matter of law because the offence charged did not exist, the Crown Court judge had given a detailed written judgment after four days of legal argument rejecting the appellant’s submissions. Permission to appeal had initially been refused by the single judge on the papers. In those circumstances the court held it was impossible to say that the prosecution was improperly brought or that the case was improperly advanced in the Crown Court. In particular, it could not be said that it was or should have been plain that the prosecution case was without legal merit.
The position changed, however, after the oral hearing in the Court of Appeal on 9 March 2018 at which permission to appeal was granted without calling on the appellant. On that occasion the court observed that it was not apparent where in the Regulations there was to be found any provision enabling or requiring inspectors to arrange a programme for sampling and monitoring or requiring companies to provide assistance in that regard. The court could not see how there was any basis for the criminal charge unless such a provision could be identified, and indicated that this matter should be addressed in the respondent’s skeleton argument.
The court held that the effect of those observations should have put the respondent on notice that unless it could identify a provision of the Regulations providing a proper basis for the charge, it would be at risk of an order for costs if it resisted the appeal. Neither in their skeleton argument nor in oral submissions were the respondent’s counsel able to identify any such provision. The court considered that in these circumstances the test under regulation 3 was satisfied and the appellant was in principle entitled to an award of costs in respect of the proceedings in the Court of Appeal after 9 March 2018.
The appellant had claimed total costs of £52,046.44, representing all costs incurred after the Crown Court judgment. The court declined to award all costs incurred after 9 March 2018, noting that the fees charged were higher than those appropriate to order another party to pay and that a significant discount should be made to reflect the fact that the appellant had pursued two other grounds of appeal which failed.
In short, the court awarded the appellant its costs in the sum of £10,000, limited to a proportion of the costs incurred after the permission hearing at which the Court of Appeal indicated that no proper legal basis for the charge was apparent.
The appellant company had been convicted and sentenced for an offence under regulation 17(1) of the Transmissible Spongiform Encephalopathies (England) Regulations 2010 of failing to give an inspector assistance required to take samples. The Court of Appeal quashed the conviction and sentence in a judgment handed down on 26 April 2018 on the ground that under the Regulations an inspector had no power to require the appellant to provide samples and the appellant’s failure to do so therefore did not constitute an offence in law.
Following the successful appeal, the appellant applied for its costs both in the Court of Appeal and below to be paid by the Crown Prosecution Service. The application was made under regulation 3 of the Costs in Criminal Cases (General) Regulations 1986, which provides that a court may order one party to pay the costs incurred by another party as a result of an unnecessary or improper act or omission. The application was determined on written submissions without an oral hearing.
The court set out the established principles governing such applications, derived from R v Cornish [2016] EWHC 779 (QB). Those principles include that the mere failure of a prosecution does not satisfy the threshold criteria; that improper conduct means an act or omission that would not have occurred if the case had been conducted properly; that the test is one of impropriety, not unreasonableness, with the conduct being starkly improper; that even where a case fails as a matter of law, that does not necessarily mean the decision to charge was improper because legal points are often properly arguable; and that such applications will be very rare and restricted to exceptional cases involving clear and stark error.
The court rejected the argument that costs should be awarded in respect of the entire proceedings. Although the prosecution had failed as a matter of law because the offence charged did not exist, the Crown Court judge had given a detailed written judgment after four days of legal argument rejecting the appellant’s submissions. Permission to appeal had initially been refused by the single judge on the papers. In those circumstances the court held it was impossible to say that the prosecution was improperly brought or that the case was improperly advanced in the Crown Court. In particular, it could not be said that it was or should have been plain that the prosecution case was without legal merit.
The position changed, however, after the oral hearing in the Court of Appeal on 9 March 2018 at which permission to appeal was granted without calling on the appellant. On that occasion the court observed that it was not apparent where in the Regulations there was to be found any provision enabling or requiring inspectors to arrange a programme for sampling and monitoring or requiring companies to provide assistance in that regard. The court could not see how there was any basis for the criminal charge unless such a provision could be identified, and indicated that this matter should be addressed in the respondent’s skeleton argument.
The court held that the effect of those observations should have put the respondent on notice that unless it could identify a provision of the Regulations providing a proper basis for the charge, it would be at risk of an order for costs if it resisted the appeal. Neither in their skeleton argument nor in oral submissions were the respondent’s counsel able to identify any such provision. The court considered that in these circumstances the test under regulation 3 was satisfied and the appellant was in principle entitled to an award of costs in respect of the proceedings in the Court of Appeal after 9 March 2018.
The appellant had claimed total costs of £52,046.44, representing all costs incurred after the Crown Court judgment. The court declined to award all costs incurred after 9 March 2018, noting that the fees charged were higher than those appropriate to order another party to pay and that a significant discount should be made to reflect the fact that the appellant had pursued two other grounds of appeal which failed.
In short, the court awarded the appellant its costs in the sum of £10,000, limited to a proportion of the costs incurred after the permission hearing at which the Court of Appeal indicated that no proper legal basis for the charge was apparent.