Case No: CO/4447/2010
Neutral Citation Number: [2011] EWHC 767 (Admin)
IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 01/04/2011

Before:

The Right Honourable Lord Justice Pill
and
The Honourable Mr Justice Mackay 
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Between:

	R (on the application of Erkin Guney)	Applicant	
	- v -		
	The Central Criminal Court
and
Legal Services Commission	Defendant

Interested Party	

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Miss I. Forshall QC and Mr R. Thomas (instructed by Guney, Clark & Ryan) for the Applicant
Ms L. Weston (instructed by Legal Services Commission) for the Interested Party

Hearing dates: 4 March 2011
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Judgment
Mr Justice Mackay: 
1.	This is a rolled up application by Erkin Guney for judicial review of an order of the Recorder of London made on 8th January 2010.  The applicant had stood trial at the Central Criminal Court between 21st April and 22nd May 2009 charged with soliciting murder.  He was acquitted by the unanimous verdict of the jury.  The Recorder who had presided over the trial indicated that he wanted to consider a Recovery of Defence Costs Order and asked the Interested Party to carry out an examination of the applicant’s means.  The costs of his legal defence were assessed at a minimum of £89,947 and the examination revealed that he appeared to have means sufficient to meet such an order.  Having heard full argument The Recorder ordered him to pay the full costs within 12 months.
The Regulations
2.	The relevant regulations under which the order was made were the Criminal Defence Service (Recovery of Defence Costs Orders) Regulations 2001, 2001 No. 856.  So far as relevant these read as follows:
“3(1)	Where an individual receives representation in respect of criminal proceedings which is funded by the … Criminal Defence Service, the court before which the proceedings are heard … shall make an order requiring him to pay some or all of the cost of any representation so funded for him in the circumstance set out in these regulations …
4(1)	The Judge hearing the case shall make an RDCO against a funded defendant except as provided in paragraph (2).
(2)	An RDCO shall not be made against a funded defendant who: …
(d)	Has been acquitted, other than in exceptional circumstances.
11.	At the conclusion of the relevant proceedings, the Judge shall:
(a)	Subject to regulation 4(2) make an RDCO;
(b)	Where an RDCO may be made under regulation 4(2) (d), consider whether it is reasonable in all the circumstances of the case to make such an order.”
The Jurisdiction of this Court
3.	It is common ground that this court has power to review the making of an RDCO and that Re Sampson [1987] 1 WLR 194 to which the Single Judge referred does not preclude judicial review of such orders.
4.	The regulations cited above are made pursuant to section 17 of the Access to Justice Act 1999.  
5.	By the Senior Courts Act 1981 section 29(3) the jurisdiction of this court to make mandatory prohibiting and quashing orders in relation to the jurisdiction of the Crown Court is expressed to be subject to the exception “ …other than its jurisdiction in matters relating to trial on indictment”.
However section 29(6) reads 
“In sub-section (3) the reference to the Crown Court’s jurisdiction in matters relating to trial on indictment does not include its jurisdiction relating to orders under section 17 of the Access to Justice Act 1999”.
6.	An RDCO by section 50(3) of the Criminal Appeal Act 1968 is not a sentence for the purpose of appeals under that Act.  As the Court of Appeal in R v Patel (unreported) 2004 500686/D2 held when reviewing such an order it was necessary for it to reconstitute itself as a Divisional Court of the Queens Bench Division, when it could then consider the matter as an application for judicial review.
7.	It is therefore not disputed that we have jurisdiction to entertain this application.
The 2004 Practice Direction
8.	This is found at [2004] 1 WLR 2657 and at Part II deals with orders for Defence Costs from Central Funds in the Crown Court.  It reads as follows (paragraph 2.1) 
“Where a person … has been acquitted on any count in the indictment the court may make a defendant’s costs order in his favour.  Such an order should normally be made whether or not an order for costs between the parties is made, unless there are positive reasons for not doing so.  For example, where the defendant’s own conduct has brought suspicion on himself and has misled the prosecution into thinking that the case against him was stronger than it was, the defendant can be left to pay his own costs”.
9.	So far as RDCOs are concerned these are dealt with at Part XI (II) of the Practice Direction and in effect paraphrase or reproduce the terms of the order.
10.	There is no case directly in point regarding the issue we have to decide.  The applicant points to the general guidance in R (Wayne James) v SW Surrey Magistrates Court [2000] CrimLR 690 where Lord Bingham CJ talked about the “sensitive territory” into which the court had to venture when declining to make costs orders in favour of an acquitted defendant.
He stated at paragraph 12:- 
“It is important to remind oneself of the general rule, which is that a defendant is entitled to a defendant’s costs order prima facie if proceedings against him have been discontinued.  The exception to that rule is narrowly drawn in order to respect the presumption of innocence which is both a fundamental principle of a common law and a right guaranteed by the Convention.  The exception reflects the common sense view that if a defendant misleads the state into initiating proceedings against him as, for example, by making a spurious confession or advancing a demonstrably fraudulent alibi, he should not then be entitled to reimbursement by the State when in due course the proceedings against him collapse”.
In R (Elliott Spiteri) v Basildon Crown Court [2009] EWHC 665 Admin this court considered a case where a defendant had successfully appealed against his conviction for driving with excess alcohol on the ground that the police administering his breath test had failed to ask a particular question which was a mandatory requirement of the procedure.  The court had refused to award him his costs from Central Funds as a defendant’s costs order on the ground that he had brought the prosecution entirely upon himself by his own conduct.  The court considered that he had won on an “unmeritorious technicality” but the court was “satisfied that he had been driving whilst substantially over the legal limit” therefore he had “amply brought the prosecution upon himself”.  
11.	Richards LJ giving the judgment of this court said it was wrong in principle and contrary to the presumption of innocence to approach the issue of costs on the basis that the defendant was in truth guilty of the offence, and he continued at paragraph 9 in these terms :-
“It seems to me that there was ample material upon which the court could conclude that he had brought the original prosecution upon himself by his own conduct.  However that was not a sufficient basis for the refusal of costs.  The Practice Direction gives as an example of positive reasons for not making a defendant’s costs order “where the defendant’s own conduct has brought suspicion on himself and has misled the prosecution into thinking that the case against him was stronger than it was” (emphasis added).  There is no suggestion whatsoever in this case that the applicant’s conduct misled the prosecution into thinking that the case against him was stronger than it was.  Thus the specific example for positive reasons for not making an order which is given in the Practice Direction is plainly inapplicable here; and merely to have brought suspicion upon oneself or to have brought the prosecution upon oneself is plainly insufficient to amount to positive reasons for not awarding costs”.
12.	It is plain to us that those remarks were tailored to the facts of the case which the court was then considering, which are very different from the facts of the present case, to which I now turn.
The Background
13.	The applicant was arrested on suspicion of soliciting the murder of a Ms H, the partner of the applicant’s late father.  The applicant was said to have recruited an employee working in his business called Shahmuradi to carry out the deed.  Shahmuradi was arrested for an unconnected matter before he could take things any further and in due course told the police of the approach that he claimed the applicant had made to him.  The police tried to confirm his allegation and arranged for him to make telephone contact with the applicant from prison. An undercover police officer named “Zaf” was introduced into the scheme as the potential murderer.
14.	The applicant’s case was that he knew from the word go that Zaf was a police officer.  But the evidence was that nevertheless he continued over a significant period of time to do his best to recruit him for the murder.  
15.	It was said that on 22nd May 2008 he had instructed Zaf to run Ms H over.  On 18th June he took him on a tour of the proposed victim’s home, showed him a photograph of her and told him he wanted “that cunt to stop breathing”.  He offered to pay £10,000 for this service.  
16.	On the due date for the murder Zaf telephoned the applicant and gave him the coded message which the applicant had told him to use, purporting to confirm that the murder had been carried out.  The applicant failed to attend an arranged meeting to hand the money over and was arrested.
17.	When he was interviewed the applicant said he knew all along that Zaf was a police officer and that he had even on one occasion voiced that suspicion to him.  He had never intended that Ms H should be killed.  He had previously himself been the victim of a police “set-up” some years before and had served several years in prison before his conviction was eventually quashed.  The circumstances in which it was quashed were never fully publicised but strongly suggested police malpractice directed against him, full disclosure of which he could not be given for legal reasons.  The episode left him with a feeling of persecution by the police. He had received compensation for this miscarriage of justice.
18.	He agreed that there had been serious differences between H and himself.  The applicant’s deceased father was a man of substance and had left a significant estate.  The applicant said that H had made criminally fraudulent attempts to extort money from him and his family and that the officer in the case was in league with her to frustrate the counter allegations that the applicant and his relatives had made against H.  His plan was to arrange that he should once again become the victim of a miscarriage of justice.  He was therefore role playing with Zaf to expose the corruption in the Surrey Police Force by going along with the pretence that he wanted H killed in the hope that he would then be left alone or if arrested could identify the corrupt officer behind the set up.
19.	In his evidence to the jury he gave the same account he had given the police in interview.  He also said that the miscarriage of justice he had suffered in the past had damaged his health in psychiatric terms, rendered him paranoid and fearful of being targeted by police again.  He called in support a psychiatrist who expressed the opinion that he had a persecution complex, suffered from PTSD and paranoia and was therefore capable of thought processes which might objectively appear irrational but which were honestly held by him.
The Ruling
20.	The Recorder started his consideration of the matter by accepting that two things had to be established before he could exercise his discretion to make the order in question namely that the applicant had brought the prosecution on himself and secondly that the prosecution was misled into thinking that the case was stronger than it was.  He held that if found those two factors could amount to exceptional circumstances.  He reminded himself of the fact of the acquittal and the reflection that cast on at least some of the prosecution witnesses and reminded himself of the medical evidence for the defence.  Having heard the trial he gave as his opinion that the applicant was intelligent, resourceful, manipulative and exceptionally devious.
21.	Notwithstanding that, he found that it could not reasonably be concluded that the applicant had brought suspicion on himself in terms of the initiation of the investigation, referring to the initial approach by Shahmuradi by telephone.
22.	However he also found that once the applicant’s suspicions had been raised by the calls from Mr Shahmuradi from prison and the investigation progressed he was satisfied that the defendant brought the inevitable prosecution upon himself.  He cited words to that very effect by the applicant’s own leading counsel at the start of his closing speech to the jury.  On his own admission the applicant had played an active role in leading on the undercover police officer.
23.	The Recorder also found as a fact on the evidence that the applicant could instantly have brought the Surrey Police investigation to an end.  Because of the dispute he had with H a retired police officer was working with him at his place of work and he also had frequent contact on a virtual daily basis with Surrey Constabulary, including contact with a senior officer with whom he was in continual contact because of the disputes that were being investigated band who was an officer about whose probity he had no reason to entertain any doubt.  Nevertheless he found as a fact the applicant had played the investigators along “for over a month”.
24.	The conversations that the applicant had had with Zaf were the main evidence against him at the trial.  He was satisfied that the applicant was not suffering from paranoia such as would have driven him to conclude that he could not contact the police or otherwise bring the investigation to an end.  He found that though he should have done that he had “made a deliberate decision not to do so”, thereby building up the strength of the case against him.
25.	The fact that he had outlined what was to become his successful defence after his arrest in some considerable detail in his interview was something which in the Recorder’s view did not alter the fact that he had both brought suspicion on himself and misled the prosecution as to his intentions by creating and building on the case against him.
26.	For the applicant it was argued before us that there is a two stage test which has to be met before the discretion to exercise this power can be addressed, the exceptional circumstances assessed and the decision made as to whether it is reasonable to make the order.  It is argued that two separate forms of behaviour must be shown and the second limb, misleading the prosecution as to the strength of the case, is a discrete issue and relates to the behaviour of a defendant once he has been arrested, for example failing to disclose an alibi or to notify the prosecution of relevant expert evidence, that is to say material necessary for the prosecution then to consider the strength of its case.
27.	Therefore it is argued although suspicion was cast on him by the employee and, it is then conceded, he then chose to amplify that suspicion, thus leading to his arrest, it would be wrong to say that he ever misled the prosecution as to the strength of its case.  Rather to the contrary, he gave them every opportunity to review the case, his own explanation, his expert evidence in support and the effect of the previous miscarriage of justice on his psychology and thinking processes.
28.	The Interested Party argues that in the circumstances where the applicant knew from the outset that Zaf was a police officer everything that he did thereafter was intended to add weight to and fortify the suspicion in which he had initially been held and did lead them positively to think that the case was stronger than merely the allegation by Mr Shahmuradi.  By the time he was arrested the damage was done, the prosecution was entitled to be sceptical of the account given in interview and the decision to prosecute and put the matter before the court was a reasonable one in the circumstances.  The evidence was there, and no submission of no case to answer was made at any stage.  The Recorder’s positive finding that the applicant himself could have brought the investigation to an end at any stage was a finding of fact not capable of challenge in this court.  
29.	The Interested Party argues that there is nothing in Spiteri which requires there to be separate actions or conduct on the part of the acquitted defendant which give rise to suspicion being brought on the defendant on the one hand and the prosecution being misled as to the strength of their case on the other.  We agree that Spiteri was not saying that, but was a decision based on its own facts.  Plainly the erratic driving of the defendant was conduct which had brought suspicion on him.  But he had done nothing to mislead the prosecution into thinking they had a stronger case than they did have.  The weakness of the prosecution case, which turned out to be fatal, was an omission by a prosecution witness to carry out a particular procedure in the manner prescribed.  The defendant had done or said nothing to contribute to that state of affairs.
30.	We agree with the Interested Party’s argument and with the approach of The Recorder.  Not only did he bring suspicion on himself by his conversations with Zaf, he underlined and reinforced those suspicions at every contact he made in that period of about a month when he was doing his utmost to convince him to carry out the deed.  He was playing the investigator along, as the Recorder said, and using language “calculated to encourage the officer to believe that Mr Guney truly wished to secure the murder”.  The result was that the continuing conversations he had led the investigation and the prosecution that followed to the inevitable conclusion that the case against him was not only valid but continued over a sustained period,   a period in which he had demonstrated complicity in a thought out plan to encompass the death of a woman whom the evidence further indicated he loathed.
31.	The Recorder was plainly aware of and balanced against that the fact that he had given a very full account in interview.  But the conclusion he reached was one which in my judgment was open to him and involved no error of law, neither was it a mistaken exercise of discretion such that this court should intervene.
Reasonableness
32.	It is right to say that nowhere in his ruling does the Recorder expressly say that he has considered this requirement as a separate matter.  He refers in three places to the task that he had to carry out as the exercise of a discretion (3C, 3F and 7B).  He found in terms that exceptional circumstances did apply to this case, which was by anyone’s standards an unusual one.  We do not consider the failure positively to enunciate the proposition that the order he made had to be reasonable justifies a review of his decision.  This was a full and careful ruling which took into account all the points that were there to be taken by the applicant.
The Amount of the Order
33.	The Recorder tempered the order only to the extent that he gave the applicant 12 months to pay with liberty to apply if he could demonstrate that he would not have the means sufficient to meet it at that time.  But once he had made the findings he did make we cannot categorise as irrational or otherwise reviewable the decision to order the full amount.  Either the case for recovery was made out or it was not and his judgment was that it was.
Conclusion
34.	In all the circumstances I have outlined in my judgment this application for permission to apply for judicial review should be dismissed as having no real prospect of success. 
Lord Justice Pill: 
35.	I agree.  Exceptional circumstances need to be established if an RDCO is to be made against a funded defendant who has been acquitted.  
36.	I wish to add only, first, that exceptional circumstances are not confined to the example given in the 2004 Practice Direction, cited by Mackay J at paragraph 8, though that example is likely to be the most common in the present context.  Secondly, I express specific agreement with Mackay J’s conclusion, at paragraph 12 that, applying the test stated by way of example in the Practice Direction, this case is plainly distinguishable from Spiteri.  
37.	Driving with excess alcohol provided the basis for the prosecution in that case but the statute creating the offence requires a procedure to be followed if there is to be a conviction.  The prosecution failed to follow that procedure in Spiteri and, by virtue of the statutory provisions creating the offence, the appellant was acquitted.  That is a very different context from the conduct of the appellant in the present case, described by Mackay J in his judgment, which led to the appellant being charged and tried for soliciting murder.
38.	I agree with Mackay J that the Recorder of London was justified in making the order he did.