CO/9074/2007 
Neutral Citation Number: [2008] EWHC 2585 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Date: Wednesday, 2 July 2008
 
B e f o r e:

LORD JUSTICE MOSES 

MR JUSTICE BLAKE 
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Between: 
RE WILLIAMS & SONS (WHOLESALE) LIMITED 
Claimant

v 

HEREFORD MAGISTRATES' COURT 
Defendant 
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Computer‑Aided Transcript of the Stenograph Notes of  
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Mr James Dawson (instructed by DWF Solicitors) appeared on behalf of the Claimant 
The Defendant did not appear and was not represented 
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J U D G M E N T 

1.	LORD JUSTICE MOSES:  This is an application to move for judicial review of a decision by Deputy District Judge Cartwright made on 18 July 2007 at the Hereford Magistrates' Court refusing a defendant's costs order in favour of the claimant, RE Williams & Sons (Wholesale) Limited.  It is contended that the judge had no basis for refusing Williams' costs following a ruling that the continuation of criminal proceedings amounted to an abuse of process.  
2.	In essence, Williams & Sons, who occupy and operate a slaughterhouse, had failed to remove spinal cord from a carcass in December 2005.  For that offence, they were charged in two ways: both under the TSE (England) Regulations 2002 (as amended by the TSE (England) (Amendment) (No 2) Regulations 2005); and a breach of the Fresh Meat (Hygiene and Inspection) Regulations 1995.  Both those Regulations, in circumstances that it is unnecessary to detail, required removal from the carcass of the spinal cord.  It was a failure to do so, of which it was said Williams were guilty, that had led to the prosecution.  
3.	An official of the Food Standards Agency had attended the premises of Williams and had observed a spinal channel in which there was still material.  It was the procedure of Williams to require its operatives to remove all material from the spinal channel, but at the date of the inspection, it was apparent that that had not been done.  
4.	The abuse of process argument, which originally had been dismissed in April 2007 by a colleague of Deputy District Judge Cartwright, was heard again on 17 July 2007.  The basis of the application was that the only way to determine whether an offence had been committed was to examine the material within the spinal channel at a laboratory.  Within the spinal channel is not only tissue from the spinal cord, but also fat or meningeal tissue.  The latter two items do not give rise to any offence if they are not removed; it is only a failure to remove the spinal cord (or any part of it) which gives rise to an offence under the Regulations to which I have already referred.
5.	At the hearing on the application to stay the proceedings as being an abuse of process on 17 July, the Deputy District Judge, in a clear ruling for which he is to be congratulated, heard expert evidence called both by the Food Standards Agency and on behalf of Williams, and concluded that the only way in which it could be determined whether the material left behind was spinal cord, or a tissue which did not pose a risk, was by sending the material to a laboratory.  The Deputy District Judge accepted as a fact that it was not possible to determine with accuracy whether the material left behind was offensive spinal cord or not, and thus whether there was a breach of the Regulations, by observation alone.  In those circumstances, he considered the effect of the failure in this case of the veterinary official to retain the substance seen within the spinal channel and the failure to send it to the laboratory.  In the instant case, the officials had failed to do either of those things.  Thus there had never been any inspection of the material at a laboratory, still less any opportunity for an expert on behalf of Williams to examine the material himself.  It was in those circumstances that the Deputy District Judge ruled that it would be an abuse of process to rely merely on the visual observation of the witnesses called on behalf of the Food Standards Agency, and he dismissed the case on that basis.  He did so, in part, on reliance upon the decision of this court in Leatherland and Pritchard v Powys County Council [2002] EWHC 148 Admin.  But that case, which also concerned the failure to retain material said to be in breach of trading standards, did no more than apply well‑known authorities in relation to the retention of exhibits, the subject matter of criminal proceedings.  
6.	The next question for the Deputy District Judge was whether Williams, in the light of that ruling, should have a defendant's costs order made in its favour.  The principles which the Deputy District Judge was required to apply are well‑known.  The power to make a defendant's costs order is contained within section 16 of the Prosecution of Offences Act 1985.  That power must be exercised in accordance with the principles stated within the Practice Direction on costs: [2004] 1 WLR 2657.  Normally such an order should be made unless there are positive reasons for not doing so, such as the defendant's own conduct in bringing suspicion on himself and by misleading the prosecution into thinking that the case against him was stronger than it was.  Those principles were emphasised by Lord Bingham CJ in R v South West Surrey Magistrates' Court ex p Wayne James [2000] Crim LR 690, in which he stressed the general rule that costs should be awarded, and emphasised that the exception to the rule is narrowly drawn so as to preserve the fundamental principle of the common law and the European Convention on Human Rights, namely that a man is to be presumed innocent unless it is proved that he is guilty.  
7.	Notwithstanding those principles, the District Judge identified a number of the features of this case which he said demonstrated that Williams had brought the case upon itself.  Firstly, he relied upon the fact that there was an internal procedure within Williams which required the operative to remove all the contents of the spinal channel, lest any material which remained should prove to be contrary to the criminal Regulations and contain tissue from the spinal cord.  In the instant case, it was apparent that the operative had failed to follow that procedure, and thus there was material within the spinal cord, although, for reasons I have already identified, it was impossible to tell whether that material came from the spinal cord or not.  
8.	Next, the District Judge relied upon the fact that the director's (Mr Williams') behaviour at the time gave the impression that he believed the material was from the spinal cord, and indeed, according to the District Judge, had in part aroused the suspicion of the inspectors by what appears to have been either truculent or aggressive behaviour.  As the Deputy District Judge described it, he did everything possible to give the impression that he believed that what had been found was spinal cord and the offences had been committed.  The judge formed the view, which he described as firm, that the defendant himself believed that what was found was spinal cord.  
9.	Next, the District Judge relied upon what the director (Mr Williams) had said in interview, where he had apparently given an account of the events on site, which were different from the oral evidence he had given before the judge.  
10.	Finally, so it is alleged, there pervaded the whole of the ruling in which costs were declined an impression given by the District Judge that, for all anyone knew, the defendant was guilty.  During the course of his ruling, he said this: 
"I have stayed these proceedings on the basis that expert analysis of the material [is] not possible and that the defendant company has been denied the result of a conclusive scientific analysis.  A trial will not take place and there will be no verdict either way."  
11.	In my judgment, the grounds upon which the District Judge declined to make a defendant's costs order in favour of Williams are not capable of providing a basis upon which such costs could be refused.  So far as the belief which he found Mr Williams to have held: namely that the channel did contain the spinal cord tissue; his behaviour at the time; the breach of internal procedure; and the lies or inaccuracies found at interview are concerned, in my judgment none of those factors, either severally or in combination, could justify a refusal to award costs, in the particular circumstances of this case.  
12.	The vital ruling found as a fact by the District Judge was that it was not possible to identify the contents of the spinal channel without laboratory analysis.  The prosecution failed, and was bound to fail, once the sample was not retained and sent for such analysis.  It follows that the behaviour of Mr Williams and the breach of internal procedure had nothing to do with the success or failure of the prosecution or whether it was right to proceed.  Absent the retention of the material and it being sent to a laboratory for examination, the prosecution could not succeed and should not have been pursued.  Thus the behaviour of Mr Williams, and the breach of a very sensible internal procedure, was neither here nor there.  It was irrelevant to the important question as to whether a prosecution should be started and whether it should be continued.  That question turned entirely upon the retention of the material and its submission to laboratory analysis on the findings of the District Judge himself.  
13.	But that is not the end of the matter.  It is plain that, during the course of the ruling, the District Judge took the view that there was some different category of acquittal, by virtue of the proceedings being stayed as an abuse of process, from a verdict of not guilty.  That is demonstrated in the passage I have already cited, where he pointed out that there would be no trial and no verdict.  That cannot possibly amount to a factor or feature by virtue of which a judge was entitled to be influenced as to whether to award costs or not.  It was incumbent upon the District Judge to consider the question of costs solely on the basis that this defendant, Williams & Sons, was not guilty.  Any other basis would breach its Convention right to be considered innocent until proved guilty.  The District Judge, in my view, fell into error in his reference to the fact that there was no verdict either way.  
14.	Finally, in my view he was wrong to rely upon what he described as the disingenuousness of the defendant's director in the answers he gave.  Of course lies will from time to time add to the view taken by the prosecution authority that the case is stronger than it was, but in the instant case, as I have said, what was fatal to the pursuit of this prosecution was the failure to retain the material and send it to the laboratory.  
15.	Mr Williams, in interview, had made it plain that he did dispute the question whether the material contained tissue from the spinal cord, and said as much in interview.  The District Judge made no reference to that.  In those circumstances, in my view there was no basis at all upon which defendant's costs could be refused.  The District Judge was not entitled to make the order he did, and I would accordingly allow the appeal, discharge the order and make an order of defendant's costs in favour of RE Williams & Sons.  
16.	MR JUSTICE BLAKE:  I agree and have nothing to add.
17.	MR DAWSON:  I am much obliged to your Lordships.  Could I ask also, therefore, for an order for defendant's costs in relation to these proceedings before your Lordships?
18.	LORD JUSTICE MOSES:  Yes, you can ask and both the orders will be taxed.
19.	MR DAWSON:  I am very grateful to your Lordships.