Neutral Citation Number: [1998] EWHC 636 (Admin)
Case No. CO/858/98
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)

 
Royal Courts of Justice
Strand
London WC2

Date: Friday, 12th June 1998

B e f o r e:

LORD JUSTICE SIMON BROWN
‑and‑
MR JUSTICE HOOPER

Between:
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MICHAEL ALAN COLES

‑v‑

THE EAST PENWITH JUSTICES

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MR D BOULD (instructed by Hywel Davies, Gwynedd LL23 7BH) appeared on behalf of the Appellant.

THE RESPONDENT did not appear and was unrepresented.

J U D G M E N T
MR JUSTICE HOOPER: This is an appeal by way of Case Stated in respect of an adjudication by the East Penwith Justices. On 25th November 1997 a Magistrates' Court composed of three Justices set aside a decision made by a Magistrates' Court consisting of two of those three Justices on 9th November 1997.  On that day the court had made a defendant's costs Order in favour of the Appellant pursuant to section 16 of the Prosecution of Offences Act 1985.  On 25th November the court revoked that Order, relying upon the provisions of section 142(1) of the Magistrates' Courts Act 1980.
 
The facts are as follows.  On 22nd April, the day following his arrest, the Appellant's brother pleaded guilty to numerous offences arising out of his driving of a lorry.  He was fined and disqualified from driving for six months.  At the time of his arrest he had given his name as Michael Alan Coles, date of birth as 10th May 1968 and of no fixed abode.  In court he identified himself again as Michael Alan Coles with the same date of birth and gave his address as C/O Flat 9A Sydneham Burs, Cheltenham.  Those details were not his details but those of his brother, the Appellant in this case.
 
On 8th May 1997 solicitors for the Appellant informed the court that the Appellant was not responsible for any of the  offences and asked that the case be relisted to have the conviction and disqualification set aside.
 
Following a police investigation, the case was listed for 14th August 1997.  On that day the court set aside the conviction, exercising their powers (according to the stated case) under section 142(2) of the Magistrates' Courts Act 1980.  Section 142(1) and (2) provide:
 
     "(1)     ...  a magistrates' court may vary or rescind a sentence or other order imposed or made by it when dealing with an offender and it appears to the court to be in the interests of justice to do so ...
 
     (2) Where a person is convicted by a magistrates' court and it subsequently appears to the court that it would be in the interests of justice that the case should be heard again by different justices, the court may so direct." 
 
According to the stated case at paragraph 6:
 
"... The matters were then adjourned to the 11th September for pleas to be entered." 
 
This court has been provided with a notice sent to the Appellant.  Although it does not form part of the stated case, it is of interest.  The notice informed the Appellant:
 
"THE JUSTICES RE‑OPENED YOUR CASE UNDER SECTION 142 OF THE MAGISTRATES' COURTS ACT 1980 AND SET ASIDE THE CONVICTIONS ON 22.04.97.
 
"THE CASE HAS NOW BEEN ADJOURNED UNTIL 11.09.97 AT 10.30 AM IN ORDER FOR YOU TO SUBMIT YOUR PLEA." 
 
Following a further adjournment, the matter was relisted on 9th October 1997 to permit the Appellant to enter a plea of not guilty to the charges.  On that day the Crown Prosecution Service "withdrew the charges":  see paragraph 8 of the stated case.  It is obvious that the word "charges" can only be understood as meaning charges against the Appellant.  The Crown Prosecution Service took this course because it was, by then, accepted that the defendant who had appeared at the time of the conviction was, in fact, the Appellant's brother.
 
Following the withdrawal of the charges against the Appellant, an application was then made on his behalf for a defendant's costs Order pursuant to section 16 of the Prosecution of Offences 1985.  That provides:
 
     "(1) Where‑
 
    (a)  an information laid before a justice of the peace for any area, charging any person with an offence, is not proceeded with;
 
    (b) ...
 
    (c) ...
 
that court ... may make an order in favour of the accused for a payment to be made out of central funds in respect of his costs (a 'defendant's costs Order')." 
 
The court was advised by the Clerk to the Justices that the Appellant was not an accused in the proceedings.  Not  without sympathy for the Appellant, the Justices decided that it was equitable for the Appellant to be reimbursed for his costs and made a defendant's costs Order.  Following representations by the Clerk to the Justices, the court agreed that the matter should be reconsidered.  That reconsideration took place, as I have said, on 25th November 1997 with two of the three same Justices.  Following that reconsideration, the defendant's costs Order was quashed.
 
Unfortunately, the stated case does not formulate the questions in a proper manner.  Furthermore, two questions are asked, both about the validity of the Order on 25th November as well as the validity of the Order on 9th October.  There is, however, no appeal from that latter Order.  On the other hand, it is sensible to look at the two questions together, and so I reformulate the questions in the following manner:
 
     1.  On 25th November did the court have the power under section 142(1) of the Magistrates' Courts Act 1980 to rescind the defendant's costs Order made on 9th October 1997?
 
     2.  On 9th October 1997 did the court have the power pursuant to section 16 of the Prosecution of Offences Act 1985 to make a defendant's costs Order in favour of the Appellant?
  
I turn to the first question.  The answer to that question is a clear "no".
 
Mr Bould, who appears for the Appellant today, has drawn our  attention to the decision of this court in R v Gravesend Justices, ex parte Dexter [1977] Crim. LR 298.  That case concerned section 41 of the Criminal Justice Act 1972 which is in very similar terms to section 142(1) of the Magistrates' Court Act 1980.  The court held that the word "offender" in section 41, as in section 142, clearly indicated that the Justices only had power to reopen the case for the purpose of rectifying their own escape where the defendant was found guilty.  The court held they had no such power where, as in that case, he had been acquitted.  Likewise, they have no such power where, as in this case, the prosecution has withdrawn the charges.
 
Given that the appeal is only from the decision of 25th November 1997, if the answer to the first question is "no", then it would not be necessary to go on to consider the second question.  However, I shall seek to answer it.
 
In my judgment, the answer to the question is "yes". Mr Bould sets out in his skeleton argument the reasons why the question should be answered in this way.  He submits, rightly, in my judgment, that when the Magistrates' Court on 9th October exercised its powers under section 142(2), it was treating the Appellant as the accused person in the proceedings.  Even if that were not right, when they adjourned the matter for the pleas to be entered, it is quite clear that they were treating him as the accused  person.
 
The use of the word "information" in section 16 of the Prosecution of Offences Act 1985 caused me some initial difficulty.  It seems clear, however, that the Magistrates' Court was either treating the original information upon which the lorry driver's brother was convicted as now being an information against the Appellant, or, alternatively, having exercised their powers under section 142(2), there was then an information in evidence against the Appellant.
 
In those circumstances, I would allow the appeal.
 
I would hope that some thought could be given as to how cases like this should properly be dealt with.  Mr Bould tells us that it is not infrequent that persons find themselves in the position of this Appellant.  I, for my part, would think that there was an easier solution than that which was adopted in this case.
 
The Order I would propose is that the appeal be allowed and a defendant's costs Order now be made in favour of the Appellant, which would cover both the costs in this court and his costs in the Magistrates' Court.
 
LORD JUSTICE SIMON BROWN: I agree.
  
That covers all points, does it not, Mr Bould?
 
MR BOULD: My Lord, it does.
 
LORD JUSTICE SIMON BROWN: We are most grateful to you for your help.
 
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