Dowler v Merseyrail

A defendant’s costs order should normally be made where criminal proceedings are not proceeded with, unless there is a positive reason to refuse it. A defendant’s conduct is insufficient by itself. The relevant example requires both that the conduct brought suspicion on the defendant and that it misled the prosecution into thinking the case was stronger than it was. A caution must not be treated as equivalent to a conviction. Magistrates refusing an order must identify and explain the positive reason in open court, sufficiently to enable the defendant and any appellate court to understand the decision.

The claimant appealed by way of case stated from the refusal of Wirral Magistrates’ Court to make a defendant’s costs order under section 16(1) of the Prosecution of Offences Act 1985. Proceedings alleging disorderly behaviour on a train had been withdrawn after the claimant accepted a formal caution. The magistrates considered that he had brought the proceedings on himself by putting his feet on a stanchion and later stated that they had not regarded the examples in the Practice Direction as exhaustive. The appeal concerned whether that exercise of discretion was lawful and whether reasons had to be given at the hearing.

1. The appeal was allowed. The magistrates’ refusal of a defendant’s costs order was quashed, and the claimant was awarded his costs from central funds.
2. The discretion under section 16(1) of the Prosecution of Offences Act 1985 had to be exercised in accordance with the Practice Direction (Costs: Criminal Proceedings). An order should normally be made unless there were positive reasons for refusing it.
3. The magistrates’ reason was Wednesbury unreasonable. They relied only on the claimant’s conduct in placing his feet on the stanchion. The relevant example in paragraph II.1.1 required the defendant’s conduct both to bring suspicion on him and to mislead the prosecution into thinking that its case was stronger than it was. The claimant had not misled the prosecution.
4. The magistrates had also failed to consider whether, given the minor nature of the offence, a caution should have been offered at the outset rather than proceedings being commenced. The court emphasised the practical distinction between a caution and a conviction identified in R (Stoddard) v Oxford Magistrates’ Court (2005) EWHC 2733 (Admin).
5. Under paragraph II.2.1 of the Practice Direction, a court refusing a costs order must identify the positive reason in open court. This duty applies in the Magistrates’ Court. Reasons must be sufficiently clear to inform the defendant whether to pursue an appeal and to enable an appellate court to assess the court’s contemporaneous reasoning.

• High Court (Administrative Court): allowed the appeal by way of case stated from the decision of Wirral Magistrates’ Court, quashed the refusal and made a defendant’s costs order from central funds.
• Wirral Magistrates’ Court: refused to make a defendant’s costs order after the prosecution withdrew the proceedings.