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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Karia, R (on the application of) v The Director of Public Prosecutions [2002] EWHC 2175 (Admin) (10 October 2002) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2002/2175.html Cite as: [2002] EWHC 2175 (Admin), 166 JP 753, (2002) 166 JP 753

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		10 October 2002

1. MR JUSTICE STANLEY BURNTON: This is an appeal by way of case stated from the Crown Court at Southampton, which rejected an appeal from justices for the county of Hampshire by Mr Vijay Karia, who had been convicted by the magistrates of a number of motoring offences, namely: that on 14 June 1999 in Southampton he had driven an Audi motor car at a speed exceeding the speed limit; and that on the same occasion, he had failed to produce a certificate of insurance, failed to produce a current MOT certificate and failed to produce his driving licence, when required to do so by a constable.
2. The issue before the magistrates, and the only issue before the Crown Court, was whether the appellant, Mr Karia, was in fact the driver of the Audi motor car in question on the occasion when its excess speed was recorded, it was stopped, and the driver spoken to. It is important, however, to bear in mind the stage of the proceedings at which that dispute came to light.
3. Before the Magistrates' Court there was a dock identification by one of the police officers who had been at the scene on 14 June 1999 when the Audi motor car was stopped, as to the appellant being the driver of the motor car in question on the occasion in question.
4. The case for the appellant before the Crown Court, presumably before the magistrates, and before me, centres on the acceptability of a dock identification in a case such as the present. It is submitted that a dock identification is in general incompatible with Code D of the Codes of Practice issued under the Police and Criminal Evidence Act 1984, and in particular paragraph 2.14; that its lack of genuine, objective, probative value is such as to be inconsistent with the requirements of a fair trial under Article 6 of the European Convention on Human Rights; and that, in any event, given its negligible probative value, such a dock identification cannot be, and was not in the present case, sufficient to justify a conviction.
5. In order to address these submissions, it is necessary to set out the facts of the case as found in the Case Stated. The hearing before the magistrates took place on 11 September 2000, well over a year after the incident in question. On 14 June 1999 late at night two police officers, Police Constable Eade and Police Constable Saunders, had been operating a laser speed detection device at The Avenue in Southampton. The Avenue is in a 40 mph speed limit area. It was the function of PC Eade to hold the laser detection device and the function of PC Saunders to pull in and stop speeding vehicles.
6. A red Audi motor car, registration number M44 YUS, was driven along The Avenue and the detection device showed its speed as being 64 mph. PC Saunders pulled the car in and it stopped. The driver gave his name as "Vijai Kari", but it was not clear before the Crown Court whether the names were spelt to the police constable. He gave his address as 79 Denzel Avenue, Southampton, and his date of birth as 22 January 1973. In the documentation created by PC Saunders the "7" was overwritten above what looked like a "0". The driver was issued with the normal form, requiring him to produce his driving licence, certificate of insurance and a current MOT certificate for the vehicle. No documents were produced and summonses were issued in the name of Vijai Kari, of the address I have referred to, to attend the Magistrates' Court on 29 October 1999.
7. It appears that there was no appearance by anyone in response to that summons on 29 October 1999. The first hearing referred to in the case stated was that of 2 June 2000. On that occasion the appellant pleaded "not guilty" to the summonses. It is not suggested that on that occasion any indication was given of the nature of his defence. The trial was adjourned to 26 June 2000. It was again adjourned then to 7 July 2000, when the appellant did not appear. Eventually, as I have already stated, the effective hearing took place on 11 September 2000.
8. The sole issue, it appears, was the correctness of the identification of the appellant as the driver. The justices convicted. The case stated contains little information as to what happened before the justices. I am told by Mr Compton, on behalf of the appellant, that Mr Karia was not represented and it seems he did not give evidence. He was convicted and appealed to the Crown Court.
9. As I have already stated, the Crown Court found as a fact that the appellant did not indicate to the prosecution before the Magistrate's Court hearing on 11 September 2000 that identification of the driver of the motor car was in issue. One can assume, therefore, that, when evidence was led by the prosecution before the magistrates, it was in ignorance of that issue; and the dock identification was made by PC Saunders similarly in ignorance of the fact that identity was in issue.
10. The appeal to the Crown Court was, of course, by way of re-hearing. The Case Stated records that PC Saunders gave evidence. He said that the driver of the red Audi on 14 June 1999 had been of Asian appearance and of an age consistent with his having been born in 1973, which was, of course, the year of birth given to him by the driver. PC Saunders described the driver. He said that when the car was stopped the driver got out and together they went back to the laser machine and PC Eade. The driver was shown the reading and he and PC Saunders then went back to the motor car for the remainder of the procedure. They were together for about five minutes. PC Saunders said he could not remember if the driver spelt his name but confirmed he wrote it as "Vijai Kari". On the issue of the form HORT/1 requiring the production of documents, PC Saunders asked the driver which was the most convenient police station. The driver replied "Southampton Central".
11. Later PC Saunders carried out a records check and checked the registration number of the car and the check came back with the owner/keeper shown as "Karia". No documents were produced and summonses were issued and sent to 79 Denzel Avenue.
12. The officer then said that he had seen the same car again in daytime in Southampton on an occasion between 14 June 1999 and 11 September 2000. The date of that sighting was not further specified. The officer said that the car was quite distinctive. The car he saw on the second occasion had the same tinted or dark windows. The same man was driving. The car had been either stationary or moving slowly and the driver's window was wound down.
13. At the Magistrate's Court on 11 September 2000 PC Saunders said he had been approached by the appellant, who said that he was representing himself. He asked to see the officer's notebook entry and was shown it. PC Saunders said in evidence to the Crown Court that he had immediately recognised the appellant as the driver of the motor car on 14 June 1999 and on the subsequent occasion. There was no doubt in his mind at all. In court he gave evidence to that effect, including a dock identification of the appellant as the driver. He similarly identified the appellant as the driver at the appeal hearing.
14. The appellant gave evidence before the Crown Court. He said he did not believe he was the driver of the vehicle on 14 June. At that time he was living in Bassett Avenue in Southampton. He said the red Audi was owned by his father, Ramnik Karia, who lived at 79 Denzel Avenue. It was insured for him and other members of the family to drive. He himself lived at 79 Denzel Avenue on and off and might have been living there in June 1999. None of his brothers was living there then. His date of birth was 22 January 1973; that is to say the same date as had been given to PC Saunders. He said his father was about 55 years of age, had grey hair and could not have been mistaken for someone born in 1973.
15. He said he had not received any of the summonses. The first he knew of the allegation was when he at Southampton Magistrate's Court on another matter. The Crown Prosecution Service had handed him the summonses. He read them and told her he knew nothing about the offences. He pointed out the incorrect spelling of the names "Vijay" and "Karia" and the overwriting of the date of birth.
16. He then spoke to his brother Maryus Karia (a law student), who drafted a letter to the CPS which he signed. Before the Crown Court the appellant produced what he said was an unsigned copy of the letter produced by his brother's computer and dated 4 June 2000; that is to say two days after he had pleaded "not guilty" to the summonses on 2 June. The appellant said he had received no response to that letter and there were no follow-up letters. Regrettably, the case stated does not include a summary of the content of that letter and it has not been appended to the Case Stated, but I infer from inclusion of reference to it in the Case Stated, that the copy letter produced indicated a dispute as to the identity of the driver of the red Audi on 14 June 1999, since otherwise it is difficult to see the relevance of that reference. The appellant said that he had received no response to the letter and there were no follow-up letters.
17. His brother, Maryus, gave evidence to the effect that he had lived at 79 Denzel Avenue for ten years. He confirmed that his brother, the appellant, had lived there from time to time and said that, when his brother was not living there, he used the address occasionally as a postbox. His brother denied having been in the car on 14 June 1999, whether as driver or passenger, and he did not resemble his brother in looks. He stated that he had drafted the letter to the CPS for his brother who signed it and that he, Maryus, had sent it to the CPS by first class post.
18. The Crown Court made eight findings of fact. Firstly, that the red Audi motor car had been travelling at 64 mph on the occasion in question. Secondly, that PC Saunders had a good clear view of the driver of the motor car over a significant period. Thirdly, that PC Saunders saw and correctly recognised the appellant as the driver of the motor car on an occasion between 14 June 1999 and 11 September 2000. Fourthly, that PC Saunders on 11 September 2000, that is to say at the effective hearing before the magistrates, correctly recognised the appellant as the driver of the car on 14 June 1999 and that the appellant was the driver of the red Audi motor car on that occasion. Fifthly, that the appellant was required by PC Saunders to produce his driving licence, certificate of insurance and a current MOT certificate for the vehicle and had failed to do so. Sixthly, and importantly, that no letter dated 4 June 2000 was sent by or on behalf of the appellant to the CPS. Seventhly, and again importantly, that the appellant did not indicate to the prosecution prior to the Magistrates' Court hearing on 11 September 2000 that identification of the driver of the motor car was an issue; and, lastly, that the appellant had in fact received, but had ignored, the summonses.
19. The contentions on appeal to the Crown Court were that the justices should not have permitted PC Saunders to make a dock identification of the appellant on 11 September 2000; and that, in the absence of such identification, the prosecution could not prove that the appellant was the driver. It was contended on his behalf that there had been prior notification by the appellant that identification was an issue, and that an identification parade should, therefore, have been held, and it was sought to distinguish the present case from the decision in Barnes v The Chief Constable of Durham [1997] 2 CrAppR 505 on the basis that there had been such prior notification. Both advocates accepted before the Crown Court that the decision in Barnes was good law, and that the relevant issue in the case was whether prior notification of identification being in issue had been given and whether or not the evidence of identification was admissible.
20. The submissions made, as recorded in the case stated, on behalf of the appellant include also the submission that the decision in Barnes is contrary to Article 6 of the European Convention on Human Rights, in that it imposes a duty upon an accused person to inform the prosecution that he or she takes issue with the prosecution case on the ground of identity; that dock identifications are prejudicial, unreliable and unfair; that the infringement of Article 6 is more significant because, in summary trials, there is no obligation on the prosecution to disclose its case; that, in the absence of statute, there is no authority for the court to impose such a duty on an accused and, in doing so, the court is acting outside its powers; and that there is no provision for warning an accused of the consequences of failure to carry out this duty.
21. The case of Barnes, according to the Case Stated, was sought to be distinguished on the ground that there the defendant was arrested and interviewed, whereas in the present case he was summonsed and so therefore did not have an opportunity to volunteer the information that he was not the driver. Lastly, the draft case stated raised the point on behalf of the appellant that the letter of 4 June 2000 had been sent to the CPS. As I have already stated, the court actually found that no such letter had been sent and it rejected the evidence of both the appellant and his brother on that matter.
22. The Case Stated raised the following questions for the opinion of this court:

(a) Whether, and in what circumstances, it is permissible in driving cases to permit the prosecution in the Magistrate's Court to seek and rely upon a dock identification of the accused?

(b) whether it is a breach of the Human Rights Act 1998 and/or Article 6 of the European Convention to require an accused to indicate prior to trial that identification as the driver is in issue; and.

(c) whether, in the absence of such prior indication, it is fair to permit the prosecution to seek and rely upon a dock identification of the accused as the driver.

23. Barnes v The Chief Constable of Durham was, like the present case, a motoring offence case in which no identification parade was held. The identity of the driver was in issue and a dock identification was held and the question arose as to its admissibility. The judgment of the Divisional Court was given by Popplewell J. He said at page 512 E:

"There is no logic in making a distinction in regard to dock identifications between the Crown Court and the magistrates' court. However it has to be recognised that every day in a magistrates' court those charged for instance with careless driving, who have made no statement to the police, are entitled to sit back and in the absence of identification to submit that it has not been proven that they were the driver. Such an example is to be found in Jones v Carter [1956] Crim.L.R 275 where an acquittal was directed in a careless driving case where the prosecutor had not proved that the defendant was driving although there had been no cross-examination by the defence as to identity and the case had been conducted on the basis that the defendant who did not testify was driving.

"To deal with that it has been customary ever since I can remember for a police officer or other witnesses to be asked, 'Do you see the driver in court,' and for him to identify the defendant. Absent such an identification an acquittal may well follow. If in every case where the defendant does not distinctly admit driving there has to be an identification parade, the whole process of justice in a magistrates' court would be severely impaired. There are of course other ways in which a driver of a car can be identified but what I have just described is the norm. And in Middleton v Rowlett [1954] W.L.R.331 the magistrates refused to allow the prosecution to re-open their case where they had failed to give evidence as to identity and the Divisional Court refused to interfere with this exercise and the magistrates' discretion. For my part I make no observation on the correctness of the passage that appears in Archbold but in this case I have to look at the facts as they appeared to the magistrates and decide whether on the facts of this case it was plainly unfair to allow a dock identification. I do not so find."

24. It is unnecessary for the purposes of this judgment to go into the facts of Barnes. In that case too, as has been indicated from that quotation, the making of the dock identification was upheld. The decision in Barnes is, of course, binding on me, unless the circumstances of the case and my view of its correctness were quite exceptional. I refer to the judgment of the Divisional Court in R v Manchester Coroner ex parte Tal [1985] QB 67. For reasons which will become apparent, in my judgement, this is not a case in which there is any reason to depart from the decision in Barnes, so far as domestic law is concerned.
25. The legal position in a case such as the present has changed since the decision in Barnes, in that the Human Rights Act 1998 is in force and Article 6 requires that there be a fair trial of any criminal charge. However, the trial in this matter before the magistrates took place on 11 September 2000, before the Human Rights Act came into force. In the event, Mr Compton, on behalf of the appellant, has not relied on Article 6 and the Convention in support of his appeal.
26. I have to say, however, that, in my judgement, the result of this appeal would have been the same had the proceedings before the Magistrates' Court taken place after the Human Rights Act came into force and it became mandatory to comply with the provisions of Article 6. It is quite clear to me that for the procedure of the court on the trial of a criminal offence to depend on the issues made known to the court before or during the proceedings cannot infringe the requirements of Article 6. Whether a trial is, in the event, fair, must depend to a significant extent on the issues to be determined at the trial. The procedure of the court and the evidence and arguments before it must address those issues, and they cannot sensibly address those issues if they are wholly unknown. Secondly, a requirement that a defendant indicate before or at his trial what the issues in the trial are does not infringe the defendant's right to silence. There is a distinction between requiring a defendant to give evidence, to state what his factual case is, and a requirement that he identify the issues in the case. Many trials would be quite impractical and would, in fact, be unfair if the court were unable to elicit from the parties what the issues in the case are.
27. The fairness of a trial, of course, as required by Article 6, is not solely fairness to a defendant. The requirement of fairness is not intended to produce a one-sided trial. It is fairness, in the case of a criminal case, as between the prosecution and the defendant.
28. It is important also to address what is meant by a requirement in this connection. I am not referring to a requirement which is supported by any criminal sanction. I am not referring to a requirement which necessarily precludes a defendant from raising any issue which he wishes to raise or to adduce any evidence which he wishes to raise. I am simply referring to a practical requirement that the evidence in a case should normally be referable to the issues as they appear to be.
29. In the present case, when the police officer came to give evidence in the Magistrate's Court on the facts as found by the Crown Court, the prosecution had no knowledge that identification was an issue. In such circumstances, and given the fact that identification is not normally a real issue, the purpose of a dock identification is normally, as indicated in Barnes, to avoid an unmeritorious dismissal of a prosecution case resulting from a failure to make a purely formal identification of the defendant. Different considerations arise when the issue of identification is made known to the prosecution before the relevant evidence is called. It follows that, at the time when PC Saunders was asked to make a dock identification, there was no unfairness in the question, or indeed in the answer, on the basis of the information then available to the prosecution and to the court as to the issues in the case. As I have already stated, it seems to me that whether a trial is unfair must depend on the issues in the case, and what was fair in the light of the information then made available to the prosecution and the court cannot subsequently become unfair because an issue is subsequently raised.
30. Those observations, on the fairness of the procedure in such circumstances, of course do not go to the weight to be given to a dock identification if and when the issue of identification is raised. It is well known that, in normal circumstances, dock identifications are of little, if any, probative value. It may be that, when the issue is duly raised, the prosecution in many cases will be unable to prove its case because of the lack of probative value of the dock identification, but that is a different question from the question of the fairness or otherwise of the proceedings at the time they take place.
31. Reference was also made to, and complaint was made of non-compliance with, the identification procedures in Code D. Paragraph 2.14 is as follows:

"Whenever a suspect disputes an identification made or purported to have been made by a witness, an identification procedure shall be held if practicable unless paragraph 2.15 applies. Such a procedure may also be held if the officer in charge of the investigation considers that it would be useful. When an identification procedure is required to be held, in the interests of fairness to suspects and witnesses, it must be held as soon as practicable."

32. Code D is concerned with a procedure to be followed, in general, before a trial and before evidence is called. Be that as it may, the first sentence of 2.14 applies "whenever a suspect disputes an identification made or purported to have been made by a witness". In the present case, there was no such dispute when PC Saunders came to give evidence in the Magistrate's Court. The dispute referred to in the first sentence of paragraph 2.14 is a dispute which has been expressed and notified to the prosecution. That notification may take place during an interview; it may take place as a result of communications between a defendant or those representing him and the police or the prosecution authority. But there is not a dispute within the meaning of paragraph 2.14 in circumstances where the defendant has not mentioned that he does dispute or proposes to dispute the issue of identity to anyone before the relevant time.
33. Paragraph 2.14 also provides that the officer in charge of an investigation has a discretion to hold an identity parade if he considers that it would be useful. Given in the present case that there had been no prior notification that identity was an issue, there was no basis on which PC Saunders or any other officer could have considered that it would have been useful to hold such an identification parade. It cannot be sensible to require identity parades to be held in all motoring cases, in circumstances where there is no reason to believe that identity is in issue.
34. Mr Compton sought to draw some distinction between proceedings by way of summons and proceedings before the Crown Court, on the basis that, where proceedings are by way of summons, a defendant has no prior opportunity to inform the prosecution that identity is in issue. I do not think that that is correct. A defendant is able to so notify the prosecution on service of a summons or at any time before the hearing of his case, up to the moment the case begins. Of course, if the identification which is disputed is made by the officer who is at the Magistrate's Court dealing with the case, the sensible course is for notification to be given well before the return date of the summons.
35. I do not think it unreasonable to expect that a person who genuinely disputes identity and who therefore receives a summons relating to an incident of which he has no knowledge, occurring on an occasion when he was not driving the car in question, or where, if he has knowledge of it, because for example he was the passenger, he knows that someone else was in fact the driver, should respond promptly to the, on this hypothesis, false accusation against him by writing a letter to that effect. Indeed, that is what the appellant said he did in this case; although he was, in fact, disbelieved in relation to his evidence that he did so. Furthermore, on 2 June 2000 the appellant had pleaded not guilty to the summonses at the Magistrate's Court. On that occasion he could have stated that identity was an issue.
36. I do not say that on that or any other occasion before the hearing, it was appropriate for him to give evidence or to state that he was not the driver, since he had a right to silence; but, as I have already indicated, for him to give factual evidence or to make a factual statement is not the same as the raising of an issue, although where the issue is as simple as identity, the line between them may be a very narrow one.
37. In the event, before the Crown Court there was considerable evidence that the dock identification before the Magistrate's Court had been correct and that the appellant was the driver, apart from the dock identification itself: in particular, the recognition of the appellant by PC Saunders on two occasions, namely, when the appellant had been driving the red Audi motor car on the occasion between 14 June 1999 and the 11 September 2000, and on the occasion at court before PC Saunders gave evidence, when he recognised the appellant as the driver of the car. There was, as Miss Brennan pointed out, additional evidence: the identity of birth dates, name, address. The evidence before the Crown Court was more than sufficient to justify the dismissal of the appellant's appeal before it, without having regard to the dock identification.
38. There is one other point that I should make and that is this: looking at the practicality of the matter, if the question of identity is raised substantially only after a police officer has started to give evidence, and in particular after a dock identification has been made, there is no practical point in any further attempt to arrange an identification procedure. At that stage, the officer has presumably had a clear view of the person in the dock; it follows that an identity parade would have no value at all. Nor would a further confrontation or any other of the procedures referred to in Code D. The practicalities of the matter, in fairness to the prosecution as well as the defence, require that the issue of identification be raised at an earlier stage.
39. As I have already stated, it seems to me quite reasonable to expect someone who has been wrongly identified and wrongly summonsed to mention that issue at some earlier stage. The present case is, as Miss Brennan rightly said, a case in which there was an ambush defence raised only after the officer had, in the Magistrate's Court, given his evidence in chief.
40. For those reasons I answer the questions for the opinion of the court as follows: it is permissible to permit the prosecution to seek and rely upon a dock identification of the accused in circumstances such as those of the present case, where there has been no prior notification that identity is an issue. I say nothing about the appropriateness of that procedure in other circumstances. It is not a breach of the Human Rights Act or Article 6 of the European Convention for the court to expect, and in that sense require, an accused to indicate prior to trial that identification as the driver is in issue. In the absence of such prior indication, it is fair to permit the prosecution to seek and rely on a dock identification of the accused as the driver for the purpose, as was stated in Barnes, of preventing an unmeritorious, purely formal objection being taken to the prosecution case and an unmeritorious submission of no case to answer being made at the close of the prosecution evidence.
41. For the reasons I have given, this appeal will be dismissed.
42. MISS BRENNAN: Your Lordship has a power, subject to your discretion, to award costs of this (inaudible). I can not provide any figures at all. As I say, it is purely a matter for your Lordship's discretion.
43. MR JUSTICE STANLEY BURNTON: Well, if I were to make an order for costs, what are you suggesting? That there should be an order for detailed assessment?
44. MISS BRENNAN: Not detailed, as that would probably be disproportionate.
45. MR JUSTICE STANLEY BURNTON: Then what are you asking for?
46. MISS BRENNAN: I could give a minimum figure which is probably unrealistic, in the sense that it is likely to be much higher. But I am very conscious of his likely means as well.
47. MR JUSTICE STANLEY BURTON: You can give your minimum figure and we can see what Mr Compton says as to that minimum figure.
48. MISS BRENNAN: I would say, as a very minimum, it would have to be no less than £250 to bring such a case.
49. MR COMPTON: My Lord, I would ask you not to make any order for costs. Firstly, because it seems rather unsatisfactory that my learned friend does not have the necessary support behind her. In any event, having advised that there is a matter that needed to be addressed by this honourable court, and counsel having taken the matter up, in my submission, it would be wrong to punish an appellant on matters of law which are, in my submission, well outside his knowledge.
50. MR JUSTICE STANLEY BURTON: What do you say about the figure of £250?
51. MR COMPTON: My Lord, I would ask you not to make any order for costs.
52. MR JUSTICE STANLEY BURTON: Well, I am going to make an order. What do you say about £250?
53. MR COMPTON:Then I cannot argue against the figure. I am sure the prosecution's costs are more than that. I would be very surprised if they are not. I would ask for some time to pay. May I just take some instructions on that? I am not sure if that is a matter that your Lordship will deal with or if your Lordship --
54. MR JUSTICE STANLEY BURTON: Well, if you are going to ask for 14 days or 28 days, I am sure we will not take up much time about it.
55. MR COMPTON: I would ask that he be allowed to pay at £10 per week.
56. MR JUSTICE STANLEY BURTON: Then I would need some information about that.
57. MR COMPTON: I have no knowledge of the appellant's --
58. MR JUSTICE STANLEY BURNTON:It is not a legally aided case, I take it?
59. MR COMPTON: It is. Legal aid has been granted in this case. He has a representation in this case.
60. MR JUSTICE STANLEY BURTON: Then are my powers to make an order for costs not somewhat limited?
61. MISS BRENNAN: Not any more. The court now has to make an assessment of the defendant's means because legal aid is automatically granted now; it is not subject to means.
62. MR JUSTICE STANLEY BURNTON: Well, I am in no position to make an assessment of his means, am I?
63. MISS BRENNAN: Not unless he provides your Lordship with that information, no.
64. MR JUSTICE STANLEY BURTON: I do not want to take up too much time over £250 or it will cost more than £250. Can you give me any information at all?
65. MR COMPTON: Would your Lordship forgive me if I turn my back for a moment. My Lord, I thought he was here. He is not actually here.
66. MR JUSTICE STANLEY BURNTON: I thought he was one of the gentlemen --
67. MR COMPTON: So did I. His brother is here but he is not here himself.
68. MR JUSTICE STANLEY BURNTON: Well, Miss Brennan, what do you say I should do? In principle I would make an order for costs, but I have no basis on which to assess an amount.
69. MISS BRENNAN: Perhaps this might be the most practicable way forward: if your Lordship says, "In principal, such a sum is ordered", then, if his means are such that he obviously cannot pay, he can always contact the court and it can be done in a very quick method then by putting it before your Lordship. It need not require a further hearing. Otherwise, an absent appellant can simply evade an order for costs.
70. MR JUSTICE STANLEY BURNTON: Which is the provision dealing with costs against an assisted appellant?
71. MISS BRENNAN: In Archbold it is chapter six, paragraph 85. Your powers derive from the Supreme Court Act (inaudible) sections 28A and 51. Your Lordship is probably more familiar with them than we are because, of course, it does not apply to the Crown Court.
72. MR JUSTICE STANLEY BURTON: The passage at the bottom of page 835 refers to orders against the Legal Services Commission.
73. MR COMPTON: My Lord, if you go over to page 836, about two-thirds of the way down:

"Where the court allowed the prosecution appeal by way of case stated, it was unjust to make an order for costs against the respondent who was neither present nor represented at the hearing and who had not been asked whether ... "

74. MR JUSTICE STANLEY BURTON: That is very different is it not? In that case the respondent had not brought the appeal; the lower court had gone wrong and she had not been asked whether she would consent to the appeal, so why should she pay the costs?
75. MR COMPTON: In this situation, unless a figure can be specified, it is really creating further problems no doubt for the taxation officers or whoever has to deal with the question of costs. It is simply going to produce more paperwork over a sum such as £250.
76. MR JUSTICE STANLEY BURNTON: What I am tempted to do is to make a order of costs of £250 to be paid within 28 days, because it seems to me appropriate that there should be an order for costs. The fact that a question of law is raised which may be of general importance is not usually a sufficient reason not to make an order for costs. However, that order will not be drawn up for seven days to allow the appellant to make submissions in writing as to why that order should not be made and some different order made. If such submissions are made, then the CPS will have seven days to respond to them in writing and, if no submissions are made, the order will become effective in seven days' time. How does that strike you?
77. MISS BRENNAN: Thank you, yes.
78. MR COMPTON: My Lord, if the Crown Prosecution Service do not respond?
79. MR JUSTICE STANLEY BURTON: Then I shall deal with the letter on the basis of the information contained in it. Thank you both very much.