The Chief Constable of Hampshire Constabulary, R (on the application of) v Oldring

1. MR JUSTICE MAURICE KAY: This is an appeal by case stated in which the appellant is the Chief Constable of the Hampshire Constabulary. He seeks to appeal an order for costs that was made against him on Mr Oldring's successful appeal to the Crown Court, sitting at Winchester. That appeal was against the revocation of his shotgun and firearms certificates.

2. The brief history is as follows. Mr Oldring is a middle-aged man who, as I understand it, is the proprietor of a shooting school. He was the holder of both a firearms and a shotgun certificate. On 22nd January 2002, Mr Oldring shot a neighbour's cat. It did not die immediately. Clearly, it was caused grave injury and, three days later, a local veterinary surgeon destroyed it. This led to Mr Oldring being charged with offences of criminal damage to the cat and causing unnecessary suffering to it. When that background was made known to the Chief Constable, he revoked the two licences on the ground that if Mr Oldring were to retain them, that would amount to his being a danger to public safety and to the peace. The revocation was on 19th August 2002. At that stage, Mr Oldring had yet to be tried in the Magistrates' Court.

3. The trial in the Magistrates' Court occurred between 19th and 23rd December 2002. The outcome was that Mr Oldring was acquitted on both charges. It seems that he was acquitted on the criminal damage charge on the basis that he had acted lawfully in defence of his own property, namely his own cat with which the neighbour's cat had been fighting. So far as the unnecessary suffering was concerned, the wording of the charge against Mr Oldring related to cruelty arising out of the shooting itself. That was not made out, and it was not possible in the circumstances for the magistrates to convict on the basis of the subsequent suffering between the shooting and the death of the cat.

4. On 2nd January 2003, Mr Oldring's appeal to the Crown Court was heard. His appeal was successful, and the Crown Court ordered the Chief Constable to pay Mr Oldring's costs. It is that order for costs which is the subject of this appeal by case stated, the single question posed for this court being:

"Were we right to order the respondent to pay the appellant's costs?"

The power of the Crown Court to award costs in such proceedings is to be found in rule 12(2) of the Crown Court Rules 1982, which provides that the Crown Court "may make such order for costs as it thinks just." That simple provision has led to a good deal of litigation.

5. The reasons are easy to understand, particularly in a case such as this. The Chief Constable is performing a statutory licensing function when he revokes firearm certificates. It is important when he does so that he should not have to look over his shoulder at the possible risk of costs in the Crown Court if it should transpire that the Crown Court allows an appeal against his revocation. Particularly in the present climate, it is well understood that, as Collins J put it in are R v Chichester Crown Court ex parte Chief Constable of Sussex (Unreported 5th February 2003):

"... the Chief Constable's responsibility is an onerous one. He has, of course, to act in good faith and he has to act reasonably and he must not misconceive the relevant provisions. But provided he acts in that way, it would be quite wrong for him to have to consider whether, if he did act in what he regarded as a proper fashion, costs might be awarded against him. That would be to inhibit his actions, which are there in the public interest."

6. What the authorities establish is that there are clearly identifiable bases upon which an award for costs under rule 12(2) in a case such as this might be made. In Chief Constable of Derbyshire v Goodman and Newton [2001] LLR 127 May LJ stated that:

"... generally speaking, a cost order adverse to such an authority would not be made unless there was some good reason for doing so, which was more than the fact that the other party to the contest had succeeded."

He then referred to previously identified grounds for an award, such as a lack of good faith, or the running of a case which is without foundation or born of malice or of some improper motive.

7. It was never suggested in the present case, nor could it have been, that the Chief Constable had failed to act in good faith, or had run a case without foundation, or that his case had been born of malice or of some improper motive. Indeed, the judge in the Crown Court in the present case expressly accepted that the decision had been made in good faith.

8. Absent such things as bad faith, malice, and improper motive, the only other justification for an award of costs in such circumstances would be if the decision of the Chief Constable was an irrational one. In some of the authorities, it appears to have been pitched a little higher than that. For example, in R v Merthyr Tydfil Crown Court ex parte Chief Constable of Dyfed Powys Police [2001] LLR 133, Lightman J, at page 136, referred to the Crown Court only making an order:

"... if it can be shown that the police's position has been totally unreasonable or prompted by some improper motive."

And on the following page:

" ... that the police have acted otherwise than in good faith or have acted utterly unreasonably before they are exposed to an order for costs."

9. In my judgment, the addition of words such as "totally" and "utterly" in relation to unreasonableness serve only to blur the issue. If an award is based on unreasonableness on the part of the police, in the Wednesbury sense, it does not seem to me to be necessary to progress to a higher level of unreasonableness in order to justify an award. Indeed, it seems to me that the judgment of Collins J in the Chichester Crown Court case, to which I have referred, puts it in the way which I am suggesting is appropriate, where he refers to "in good faith and ... reasonably," with nothing more.

10. The issue in the present case then became whether the Chief Constable had acted unreasonably in revoking the licence. In my judgment, he clearly had not. Indeed, I observe that in the course of the judgment in the Crown Court, the learned judge said:

"We can understand why the ... Chief Constable might have taken the view he did."

It was incumbent upon the Crown Court to consider the decision of the Chief Constable, essentially as at the time he had made it, and upon the material upon which he had made it. It seems from the judgment in the Crown Court that the judge and his magistrate colleagues attached considerable significance to the fact that Mr Oldring had been acquitted of the criminal charges. As they said:

"However, looking at the material before us, and indeed particularly bearing in mind what we now know happened in the Magistrates' Court when the appellant was in fact acquitted of both the allegations against him ..."

That seems to me to embrace an erroneous approach. The fact of acquittal in the Magistrates' Court could not have been conclusive as to the unreasonableness of the Chief Constable's act in revoking the certificates. As Mr Savill submits, considerations of public protection underlying the Chief Constable's statutory licensing function require him to act promptly and, if necessary, robustly. Moreover, he is applying a very different test from that applied in the criminal court. He is concerned with whether a holder of a certificate is a danger to public safety or to the peace. He is considering that matter, not on the basis of the criminal standard of proof, which applied in the Magistrates' Court when the criminal charges were being tried, but on the balance of probabilities. Even if the decision in the Magistrates' Court had preceded the decision to revoke, the Chief Constable would not have been bound by the fact of acquittal alone to decide against revocation.

11. In all these circumstances, I am satisfied that, as a result of what the judge said in the Crown Court, and as a result of what he did not say -- for he made no reference to the authorities to which I have referred, but which had been produced before him -- the decision to award costs against the Chief Constable was an unreasonable one, in the Wednesbury sense.

12. For that reason, the decision to award costs will be quashed and this appeal allowed.

13. I should add that, prior to today's hearing, there had been communication between the Chief Constable's representatives and Mr Oldring's representatives. An agreement was reached at the end of last week that Mr Oldring would not take any part in these proceedings, on the understanding that whatever their outcome, no application for costs would be made against him in relation to this appeal. It follows that having quashed the costs order in the Crown Court, costs in the Crown Court now lie on the basis of each party bearing their own, and in this court, in view of the agreement to which I have just referred, there will be no order for costs.

14. Mr Savill, thank you very much.