Stoddard & Ors, R (on the application of) v Oxford Magistrates Court

A defendant who accepts a formal caution is not in the same position as a defendant who is convicted when the court exercises its discretion to make a defendant’s costs order. The defendant has been acquitted, has no criminal record, has received no penalty and may avoid adverse publicity. The prosecution, not the defendant, decides whether a caution is acceptable. A costs decision is flawed where the court assumes that the defendant was obliged to seek an early caution or that the charge could not realistically have been defended. The discretion under section 16 of the Prosecution of Offences Act 1985 must be exercised in accordance with the circumstances of the particular case and without those misdirections.

The claimants, licensees of a food store, were prosecuted under section 169 of the Licensing Act 1964 after an under-age test purchase. They pleaded not guilty and relied on the statutory due diligence defence under section 169A(3). After the prosecution indicated that it would accept formal cautions, the claimants accepted them and the informations were dismissed when no evidence was offered.

The magistrates’ court refused a defendant’s costs order under section 16 of the Prosecution of Offences Act 1985 and refused to state a case. The central issue was whether those decisions involved errors of law in the exercise of the costs discretion.

1. The refusal to make a defendant’s costs order was quashed, and the issue was remitted to the Oxfordshire Magistrates’ Court for rehearing. The refusal to state a case was also erroneous, although the matter proceeded as a claim for judicial review.

2. Section 16 of the Prosecution of Offences Act 1985 confers a discretion. The Practice Direction indicated that an order should normally be made unless there was a positive reason for refusing it, and that the court should identify that reason.

3. The district judge was plainly wrong to equate a formal caution with a conviction. A caution acknowledges that the offence was committed and may affect later prosecutorial decisions or be referred to in later proceedings. It does not create a criminal record, impose a penalty or carry the same consequences as conviction. The claimants had been acquitted.

4. The district judge also erred by treating the claimants as responsible for failing to resolve the proceedings by caution at an earlier stage. Whether a caution was acceptable was a matter for the prosecuting authority. The claimants were entitled to consider the caution only when it was offered, particularly because they had an arguable due diligence defence and had to weigh that defence against the consequences of contesting the charges.

5. The view that the charges could never realistically have been defended was unsustainable on the correspondence and defence statement. The rehearing was to take place without the identified errors. A defendant’s costs order was granted for the judicial review application under section 16(5).

• Oxfordshire Magistrates’ Court: refused a defendant’s costs order on 19 November 2004 and refused to state a case on 15 December 2004.
• High Court (Administrative Court): quashed the refusal of the costs order and remitted the issue for rehearing.