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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Michel -v- AG [2009] JCA 099 (19 May 2009) URL: http://www.bailii.org/je/cases/UR/2009/2009_099.html Cite as: [2009] JCA 99, [2009] JCA 099 |
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[2009]JCA099
COURT OF APPEAL
19th May 2009
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Before : |
J. P. C. Sumption, Esq., Q.C., President; Sir John Nutting, Bt. Q.C.; and M. S. Jones, Esq., Q.C. |
Peter Wilson Michel
v
The Attorney General
Appeal against the order of Commissioner Nice sitting as a single judge of the Royal Court on 16th May, 2008 regarding an order for costs.
Advocate D. F. Le Quesne for Michel.
Crown Advocate S. M. Baker.
JUDGMENT
jones ja:
Judgment
1. This is an application for leave to appeal against a costs order made by Sir Geoffrey Nice Q.C., Commissioner, on 1st December, 2008.
Background
2. The applicant and Mrs Simone Gallichan were charged with ten counts of assisting another to retain the benefit of criminal conduct, contrary to Article 32(1) of the Proceeds of Crime (Jersey) Law 1999. They both pleaded not guilty and went to trial on all ten counts in July 2006 before the Inferior Number presided over by Sir Richard Tucker, Commissioner. On the fifth day, the Commissioner decided that the trial should proceed in respect of only one count at that stage. Both defendants were subsequently convicted of that count and their leave to appeal were refused by the Court of Appeal in September 2006.
3. The trial against both defendants on the remaining counts recommenced before the Inferior Number on 22nd January, 2007, this time with Sir Geoffrey Nice QC, Commissioner, presiding. On 14th May, 2007, after a thirty day trial, the Jurats acquitted Mrs Gallichan but convicted the applicant on all nine counts.
4. On 18th June, 2007, the Superior Number sentenced the applicant to six years' imprisonment, concurrent on all counts and put back a Crown application for a confiscation order under the relevant statute for later determination.
5. The hearing on confiscation lasted from 10th September, 2007 (with gaps) until 20th September, 2007. Judgment was given on 19th October, 2007, the applicant being ordered to pay £9,730,152 within twelve months, in default of which he was to serve a prison sentence of three years, consecutive to the six years that he was currently serving. That order was not appealed. On the same day, the Crown lodged an application for costs in both trials, and the applicant filed written submission in response on 1st November, 2007, and 30th April, 2008. By that stage, all realisable property that had been held by the applicant in Jersey was vested in the Viscount under saisie judiciaire.
6. A hearing on costs was held on 6th and 7th May, 2008. At the conclusion of that hearing, the Commissioner announced in court that he would order that "Mr Michel shall pay 65% of the costs of the investigation overall and of the second trial overall, to be assessed or agreed; the order for costs to be paid by Mr Michel not to exceed a "cap" of £1,400,000 as at today's date the "cap" to increase from today's date by the interest that accrues on assets the Viscount holds until payment of the confiscation order." An Act of Court was subsequently issued in substantially the same terms.
7. We were informed that a written Judgment, dated 7th May, 2008, was handed down, but that it contained an error. After a further hearing on 16th May, an amended Judgment was issued.
8. A further Act of Court was issued on 1st December, 2008, in, amongst others, these terms:-
Certain orders then followed.
9. There are two material differences between the terms of the first Act of Court and the second. In the former, the base figure of £1,400,000 was to be increased by an unknown figure, being the amount of interest accruing on the saisie judiciaire assets between 7th May and the date of satisfaction of the confiscation order. By the time of the second Act of Court, the amount of the increase was fixed. The second difference is that the percentage figure has risen from 65 to 80.
Jurisdiction
10. Article 2 of the Costs in Criminal Cases (Jersey) Law 1961 provides, amongst other things, that, where any person is convicted in the Royal Court, the court may order the accused to pay the whole or any part of the costs incurred in or about the prosecution and conviction.
11. Parties were unable to point to any previous occasion on which this court has been invited to interfere with a costs order made by the Royal Court under Article 2, and we were referred to no statutory provision which, in terms, provides for an appeal against such an order. Article 24 of the Court of Appeal Law 1961, however, confers on a person convicted on indictment by the Royal Court a right of appeal to the Court of Appeal against conviction and sentence. "Sentence" is defined is Article 44(1) in this way:-
12. The question which arises, therefore, is whether a costs order is a "sentence" within the meaning of Articles 24 and 44. Parties were at one in submitting that it is. We were referred to R v. Hayden [1975] 1 WLR in which the Court of Appeal of England and Wales had to determine whether a costs order was a "sentence" within the meaning of the Criminal Appeal Act 1968. The power in the trial court to award payment of the costs of the prosecution was contained in section 4(1) of the Costs in Criminal Cases Act 1973, in these terms:-
13. Section 9 of the 1968 Act provides:-
14. Section 50(1) of the 1968 Act is in the following terms:-
15. In holding that section 50 conferred a right of appeal against the costs order, Lord Widgery C.J., giving the judgment of the court, said this:-
16. The provisions which were under consideration by the Court of Appeal are in terms very similar to those which apply in Jersey. In our opinion, the term "sentence", as defined in Article 44(1), is wide enough to include a costs order, and we have no difficulty in holding that we have jurisdiction to entertain this appeal.
The Grounds of Appeal
17. The applicant challenges the costs order on the following grounds:-
(i) the court did not have the power to order interest on costs;
(ii) by ordering that the interest on costs should be the interest arising on the [applicant's] funds held by the Viscount, the Commissioner undermined the year's grace allowed by the confiscating Court. He did not have that power;
(iii) the Commissioner erred in ordering interest on costs to be tied to the whole of the funds held by the Viscount, not just that part destined for confiscation and costs;
(iv) it was unreasonable to order interest to be paid until the confiscation order, rather than the costs order, was paid;
(v) a costs order must be for a certain, ascertainable sum, and it was not;
(vi) it was not reasonable for the Commissioner to change the portion of the prosecution costs attributable to the [applicant] from 65% to 80%; and
(vii) the costs order is punitive rather than compensatory.
We address each of these grounds in turn.
Ground 1 - Lack of Power to order Interest on Costs
18. In our judgment, this ground has no substance. Whilst we agree with the proposition that the court does not have power to award interest on costs, in our view the Crown is correct in its contention that that is not what the Commissioner did. The payment that the applicant was ordered to make was of a fixed sum, calculated by adding to a specified base figure the amount of interest that had accrued to the assets which were the subject of the saisie judiciaire.
19. In Michel and Gallichan v. Attorney General [2007] JLR N 13, adopting the approach taken by the Court of Appeal of England and Wales in R. v. Northallerton Magistrates' Ct., ex p. Dove, [2000] 1 Cr. App. R. (S.) 136, this Court held that an order to pay costs to the prosecutor should never exceed the sum which, having regard to the defendant's means and any other financial order imposed upon him, the defendant is able to pay and which it is reasonable to order the defendant to pay. It is clear that, as interest accrued to the funds held by the Viscount, the applicant's ability to contribute to the prosecution costs was enhanced. In our judgment, properly understood, the costs order reflected that fact.
Ground 2 - The Commissioner undermined the year's grace
21. In his written contentions, the applicant elaborates the second ground in these terms:-
"Article 18 (of the) Proceeds of Crime Law 1999 ... ... provides that interest runs on a confiscation order if it is not paid when it is required to be paid, which suggests (a) that there is power to allow time to pay and (b) that there is no power to order interest to run during the time granted to pay. The order that the costs should be increased by interest accruing on the seized assets of the [applicant] not only wrongly trespassed upon the Superior Number's confiscation order by removing the benefit to him of being able to delay payment and allow interest to build up, but also was beyond the power of the court under the Proceeds of Crime Law."
22. We reject this ground of appeal. We can find nothing in the Superior Number's Judgment to suggest that, in allowing time for payment, it was the court's intention to secure the applicant's enrichment. Giving him time to pay afforded him an opportunity to arrange his affairs. As the applicant's counsel acknowledged in his submissions on costs, the court "must have" allowed time "in recognition of the difficulties the defendant would have in arranging to satisfy the order: having to resolve the various competing interests and liquidating various properties." (Further Submission on Costs, paragraph 5.2.) The accrual of interest pending payment was an incidental benefit, which, as we have observed, enhanced the applicant's ability to contribute to the prosecution costs.
Ground 3 - The Commissioner erred in ordering interest on costs to be tied to the whole of the funds held by the Viscount, not just that part destined for confiscation and costs
23. In our opinion, this ground of appeal is also without merit. We have already rejected the contention that the Commissioner awarded interest on costs. If, as we have held, he was entitled to take into account the amount by which the applicant's assets had increased in value whilst in the hands of the Viscount, the whole of that amount was available to the applicant to be paid in meeting the costs order.
Ground 4 - It was unreasonable to order interest to be paid until the confiscation order, rather than the costs order, was paid
24. In his written contentions in support of this ground, the applicant submits that "the act of court and the costs judgment require the costs to include interest accruing on seized assets until the confiscation order was met, rather than until the costs order was paid, with the consequence that the costs order could not have been fulfilled until the confiscation order was paid." The applicant asserts that this was "neither reasonable nor practicable" and that the "costs and confiscation orders should not have been linked".
25. The order which is under challenge in this appeal is that contained in the Act of Court dated 1st December 2008. As can be seen from paragraph 8 above, the confiscation sum was treated as having been paid, and the interest element was fixed. The costs order could, therefore, be met at that time, according to its terms. In these circumstances, we reject ground 4.
Ground 5 - A costs order must be for a certain, ascertainable sum, and it was not
26. In support of this ground, the applicant argues that "the order made against the [applicant] was not capable of being ascertained at the time of the order or subsequently by the taxing officer, because the amount of costs depended upon interest earned on seized assets at the time the confiscation order would be paid. So, if 6 weeks after the order, the taxing officer had tried to ascertain the amount of costs to be paid by the [applicant], he would have been unable to do so."
27. For the reason given in paragraph 25 of this Judgment, we are of the view that this ground is misconceived. The contribution to costs payable by the applicant in terms of the Act of Court of 1st December 2008 was the sum of £1,665,598, being the addition of £1,400,000 and £265,598.
Ground 6 - It was not reasonable for the Commissioner to change the portion of the prosecution costs attributable to the [applicant] from 65% to 80%
28. In his application for costs, the Attorney General sought the sum of £3,583,782, subject to taxation if not agreed. In doing so, he attributed 10% of the investigation costs and 30% the trial costs to the case against Mrs Gallichan. He did not seek costs in respect of the first trial.
29. As is noted in paragraph 6 above, the figure initially fixed by the Commissioner as the applicant's contribution to costs was "65% of the costs of the investigation overall and of the second trial overall, to be assessed or agreed." That figure was capped at £1,400,000, plus interest on the assets held by the Viscount. In explanation of the alteration of the percentage from 65 to 80, the Commissioner says this:-
30. These words were written at a time when it was known neither when the compensation payment would be made nor, therefore, how much interest would have accrued by then. The applicant submits that it appears from paragraph 53 that the Commissioner increased the 65% figure to make it possible for the total amount of costs and interest to exceed £1.4 million, up to 80% of the total costs. It was contended that this was not a case of 65% being "redundant", but of its being too little in the light of the interest order which the Commissioner proposed to make.
31. We have some sympathy with the applicant's submissions on this matter. It does appear that the figure of 65% was departed from in order to accommodate a greater amount of accrued interest than might have been earlier anticipated. Further, it is not clear to us on what evidence the figure of 80% was based.
32. Having argued that the Commissioner fell into error in adjusting the percentage figure, however, no attempt was made by Advocate Le Quesne to suggest that, if the amount to be paid remained at 65% of the prosecutor's costs as agreed or taxed, the resulting figure would, or even might have been less than the cap of £1,665,598, which sum the applicant has now paid. His purpose in deploying this ground of appeal appears to have been, rather, to add weight to the proposition that the Commissioner's decision to add interest earned on the saisie judiciaire assets was intended to be punitive rather than compensatory. Indeed, in the hearing before us, Mr Le Quesne characterised the "only issue for this court" as being whether or not there should have been what he described as an order for interest on costs. In these circumstances, we reject the sixth ground of appeal.
Ground 7 - The costs order is punitive rather than compensatory
33. Under reference to Michel and Gallichan v Attorney General cit. sup., the applicant's counsel submitted, correctly in our view, that the purpose of a costs order is to compensate the payee, not to punish the payer. He argued that, to the extent that the order required the applicant to pay interest on seized assets, its effect was punitive. Further, he said, it is apparent from the Commissioner's Judgment that his intention was to deprive the applicant of the benefit of the year which had been granted to him by the Superior Number of the Royal Court to satisfy the confiscation order.
34. In our judgment, as we have said in paragraph 20 above, the Commissioner's determination had the legitimate purpose of making available money which had accrued to the applicant, towards payment of the costs incurred by the Crown in investigating his dealings and in prosecuting him. As we have also noted earlier in this Judgment, any benefit accruing to the applicant from having been given time to pay was incidental to what we consider to have been the purpose underlying that indulgence. Mr Le Quesne is correct to observe that, in paragraph 52 of his Judgment, quoted in paragraph 29 above, the Commissioner expresses the view that the applicant should not have the benefit of interest on monies that in due course will be the subject of the Confiscation Order. In so saying, however, the Commissioner made it clear that he had in mind that the appropriate use of that money would be to compensate the Crown. It follows that we reject the applicant's final ground of appeal.
The Crown's Contentions
35. In resisting this appeal, the Crown sought an increased award of costs, in the sum of £2,900,000. In support of that application, the Crown made the following submission:-
"The issue both for the Court of Appeal and the Court below is: "in what sum should the costs order have been made? If the Court of Appeal concludes that a larger costs order should have been made, it has a power and duty to increase the costs order to the level it considers appropriate."
36. Article 26(3) of the Court of Appeal Law is in these terms:-
37. It follows from the terms of Article 26(3), argued the Crown, that the ultimate task of this court "is to decide what the appropriate level of costs is, and order that the same be paid even if it is higher than the amount fixed by the Commissioner."
38. In our opinion, the approach urged on us by the Crown leaves out a critical step. In deciding whether or not to exercise his power to award costs against the applicant and, having decided to do so, in fixing the level of the award, the Commissioner acted in the exercise of a discretion. This court would not interfere with the Commissioner's determination on these matters, unless we were persuaded that he erred in the exercise of that discretion. The Crown, however, did not seek to argue that the Commissioner fell into such error. In these circumstances, in our judgment there is no proper basis on which we could interfere with the order pronounced by the Commissioner, and we decline to do so.
Decision
39. For the foregoing reasons, the application is refused.
