Harrington, R (on the application of) v Bromley Magistrates Court

MR JUSTICE MITTING: On the evening of Saturday, 5 May 2007 Martin McLoughlin was working as a taxi driver at Orpington railway station. The claimant, a 30 year old man of previous good character, had missed his stop through falling asleep when drunk on the train. He approached Mr McLoughlin's taxi, asked how much the fair would be to take him to Hartley, was told that it was £40, to which he replied "You're taking the fucking piss." He then became abusive, he kicked and punched the taxi. Mr McLoughlin got out of his taxi and urged the claimant to walk down. He walked around the vehicle towards him with his arms held out in a calming gesture. The claimant grabbed him by his lapels, attempted to headbut him, and overpowered him and pulled him to the ground. As he did so Mr McLoughlin's tibia snapped near the knee. The injury was not the result of a direct below, but appears to have been as a result of the awkwardness with which Mr McLoughlin fell to the ground. He described the claimant as full of rage. Two off duty police officers were in the area and saw the incident. The claimant immediately admitted his guilty, saying that he admitted everything and that he had been very silly and that he was not a violent person. When interviewed he repeated his submission and said that his conduct was due to drunkenness. He immediately accepted responsibility for his actions.

The impact on Mr McLoughlin was very severe. He needed an operation on his knee and on the tibia, which required plating. He was bedridden for five weeks, requiring around the clock physical care from his wife. He was prescribed anti-depressants, lost a stone and half and it caused a very great strain. An annual holiday had to be cancelled. He was unable to work for an extended period. This caused him great financial hardship. He lost at least £11,500 in earnings and had to draw down on his savings to support himself and his family.

On any view for him this was a grievious offence.

The claimant was charged with causing grievious bodily harm, contrary to section 20 of the Offences Against the Person Act 1861. He was brought before the magistrates and a lay bench on 26 June 2007, having heard the facts outlined and, having heard mitigation from the claimant's representative, gave the following indication. The indication was noted in the court files and it is not the subject of challenge as to facts:

In reaching that decision, which on the facts of the case might appear surprising, the court no doubt took into account two well written letters sent by the claimant to his victim and to the court in which he explained the circumstances in which he came to commit this deplorable, but out of character, offence. He had recently lost his father due to cancer and was worried least he was about to lose his mother due to a similar cause. He sought solace in drink and in drink behaved in the way that I have described. There is no doubt that the remorse which he expressed both to the court and to Mr McLoughlin was genuine, as was the offer to make monetary recompense.

The pre-sentence report indicated that the risk of further offending and of danger to the public was low. It was consistent with the background of this man, which I have already summarised.

In short the court was faced with a difficult sentencing task. The offence was very serious, but the claimant had by dint of his good character, up until the age of 30, and the explanation he proffered for the offence and the remorse which he displayed immediately and his willingness to accept responsibility for it, put himself into as good a light as possible for someone who had committed such an offence.

On 18 July 2007, when he came up for sentence before the district judge, the district judge reached the conclusion that he could not have gained a legitimate expectation that he would be dealt with within the powers of the Magistrates' Court because of the nature of the offence and the sentence likely to be imposed for it. He resolved to commit the claimant for sentence to the crown court under section 3(2) of the powers of criminal courts sentencing act 2000. The defendant challenges that decision by these judicial review proceedings.

Subject to one possible matter, the law is not in doubt. Miss Kelly, who appears for the interested party, the Crown Prosecution Service, concedes that the claimant was given a legitimate expectation by the decision and observations of the magistrates when they first heard the matter. She, however, submits that the decision of the district judge, the subject of this challenge, was not itself unreasonable or challengeable on Wednesbury grounds.

The starting point are the observations of Lord Bingham Chief Justice in R v Nottingham Magistrates' Court [2001] Cr App R (S) 167 at page 169:

If this had been a challenge to the decision of the magistrates on 26 June 2007 by the Crown Prosecution Service the law again would not have been in doubt. It is clearly set out in R v Warley Magistrates' Court ex-parte the Director of Public Prosecutions and Others [1998] 2 Cr App R 307 in which it was clearly stated that the court would not likely interfere with a decision of the Magistrates' Court to commit or not to commit for sentence, save where the decision was irrational or unlawful or in the words chosen to illustrate the point: "truly astonishing."

Miss Kelly submits that when the challenge, as here, is not to the original decision, but to the decision of the district judge to commit, notwithstanding the indication given by the magistrates, that what the court is reviewing is the reasonableness of the district judge's decision, not that of the original bench. That is strictly correct. However, I, for my part, cannot conceive of circumstances in which a properly given indication could be gone back on by a subsequent decision without that decision itself being held to be irrational or unlawful. In other words, it seems to me that whenever the challenge arises whether it is to the original or subsequent decision, it is the rationality and lawfulness of the first decision which ultimately determines the issue. I do not understand Stanley Burnton J to have decided otherwise on the R v (on the application of) Sean Ian Howard Sumner v Wirrel Borough Magistrates' Court [2005] EWHC 3166 (Admin), in which in paragraph 15 of his judgment he observed that the district judge came to "if not the right decision, certainly a lawful decision." He made that observation in the context of a finding earlier made that: "in my judgment the magistrates were clearly wrong to obtain jurisdiction in this case." If the magistrates were clearly wrong to obtain jurisdiction then the district judge was clearly right to decide, as he did, to commit for sentence. Accordingly I focus upon the original decision of the magistrates and its lawfulness, rationality or otherwise.

This case seems to me to be very close to the boarderline of irrationality. Miss Kelly submits on the basis of a line of the Court of Appeal authorities, that the custodial sentence above the - rely on - six months that might be imposed by the magistrates would ordinarily be appropriate for an offence of this kind. However, the compelling mitigation available here to the claimant, coupled with the fact that prisons are full and that for a man of 30, without any previous experience of the prison system, the current condition of prisons may make more harsh a prison sentence than would have been the case when prisons were less overcrowded, together are capable of justifying the decision of the original bench to retain jurisdiction subject, as they made clear, to the question of dangerousness.

Accordingly, and for that reason, although I acknowledge that this case is close to the borderline of rationality, in my judgment the original bench were entitled to come to the decision that they did. Therefore having given unequivocal, if conditional, indication of the intention of the court to obtain jurisdiction over sentence, effect should be given to the expectation thereby aroused.

Accordingly I allow this claim for judicial review and quash the district judge's decision to commit the claimant for sentence to the the crown court.

Are there any other applications?

THE APPLICANT: If I might raise the issue of costs? The claimant is paying privately for this judicial review and hence the question of legal aid funding does not arise. Might I invite your Lordship to make an order for costs out of Central Funds in this case?

MR JUSTICE MITTING: If I can do I will do. Can I be assisted on the powers. I am always hesitant in this field.

THE APPLICANT: The power comes from the Prosecution of Offences Act 1985. The particular section is section 16: defence costs.

MR JUSTICE MITTING: There is an Archbold here. Presumably it will be in that. I will look it up.

THE APPLICANT: I am looking at section 16(5).

MR JUSTICE MITTING: It says "may make a defendant's costs order in favour of the accused if the defendant's costs order is for an order of costs payable out of Central Funds."

THE APPLICANT: That is right. I do not know if the court has the schedule of costs which I know was provided by fax?

MR JUSTICE MITTING: I have but I do not know if I can make an assessment myself, can I?

THE APPLICANT: It was my understanding that summary assessment would be appropriate at the conclusion of judicial review.

MR JUSTICE MITTING: Certainly as between the parties, that is routine now. Can I do it in relation to a defence costs order?

THE APPLICANT: That was certainly my understanding.

MR JUSTICE MITTING: Have you got an authority for it?

THE APPLICANT: The authority, if your Lordship will give me a moment.

MR JUSTICE MITTING: I am sympathetic to the application and would like to agree to it, if I can. I do need to be convinced that I can. I think you will find that subsection (9) may help. The amount to be paid out of Central Funds shall be specified in the order in any case where the court considers it appropriate. Not only do I have the power but I should exercise it. Miss Kelly, do you have any observations on this?

MISS KELLY: Not at all.

THE APPLICANT: I am anxious to ensure you have the correct schedule. Two different versions were sent by fax. I am hoping your Lordship has the schedule to which the grand total comes to £5,226.06.

MR JUSTICE MITTING: Yes, I do.

THE APPLICANT: That is the correct schedule.

MR JUSTICE MITTING: You are going to have to justify a claim in this sum. It seems to me to exceed that which the taxpayer ought reasonably to pay.

THE APPLICANT: What I can say is that this is a matter that has required quite a great deal of correspondence not only between solicitors and counsel, but also between solicitors and the claimant. Various correspondence was necessary, for example, correspondence between the solicitors and the claimant to obtain his authority to the waiving of privilege to allow the solicitors' attendance notes to be included in the bundle, set out the facts properly.

MR JUSTICE MITTING: It is not that which troubles me. That comes to £1053, all those miscellaneous bits and pieces. It is the larger elements in the bill which seems to me, on the face of it, difficult to justify.

THE APPLICANT: In terms of the claim for counsel's fee, which comes to £2,095 for various advice, conference and documents.

MR JUSTICE MITTING: I add that to the claim for the work done on documents by the solicitors of £671. It is not far short of £3000 for doing the paperwork.

THE APPLICANT: Indeed, this was a case, if I can say, that had quite a lot of paperwork involved. The work done on documents does reflect obtaining and preparing bundles. It also reflects the obtaining of witness statements and affidavits by the solicitors to exhibit their attendance notes. It also includes various correspondence with the defendant Bromley Magistrates Court which is not included in the final bundle, in which they sought to persuade us that they had not complied with the judicial review protocol. It does cover quite a large amount of correspondence: drafting matters and so forth.

MR JUSTICE MITTING: That is already included in the letters items. You do not get costs of drafting letters and an item per letter. The item per letter covers both elements.

THE APPLICANT: Indeed. The work done on documents claimed as for the solicitors reflects the preparation of those witness statements and affidavits which your Lordship has in the bundle to reflect the factual background. The work done on documents in counsel's fee covers the preparation of various advices in the case and, in particular, research on the case law. If your Lordship is not minded to order the full sum of the defendant's costs, might I draw your Lordship's attention to the powers in subsection (6) and (7) to make on order for what amount the court considers to be just and reasonable.

MR JUSTICE MITTING: Thank you. I assess the costs in the sum of £3,500 plus VAT. I do not arrive at that figure scientifically but simply by taking a broadbrush approach to the preparation of costs, including the preparation of all relevant documents, which seem to me to be more than the tax payer ought reasonably to bear. So for that, the bill as drawn seems to be reasonable, but making appropriate allowance, in my view, as to the preparation costs I arrive at the figure of £3,500 plus VAT. I make that order for costs to be paid out of Central Funds under section 16 of the Prosecution of Offences Act 1985. Thank you both for your assistance.