IN THE OXFORD CROWN COURT HHJ ECCLES QC R v JAMES BINNING RULING ON COSTS 1. On 18 October 2012 Dean Henderson-Smith died as a result of falling through a Perspex skylight in the roof of a large barn known as the hangar at Great Park Farm, Besselsleigh, owned by Mr John Binning ( John Binning ). The deceased was employed by John Binning and had been instructed to replace a number of old skylights in the roof of the barn. John Binning has since pleaded guilty to an offence contrary to section 2 of the Health and Safety at Work Act 1974 and has been sentenced. 2. After the death of Dean Henderson-Smith the Health and Safety Executive investigated the accident and established that the deceased had been lifted to the roof in order to access the works in question by means of a tele-handler operated by Mr James Binning ( James Binning ), the son of John Binning. James Binning was the proprietor of Deep in Wood Timber Ltd, a company that had a licence to use the hangar, but he was not as the evidence in due course showed the employer of Dean Henderson-Smith. 3. Both John Binning and James Binning were arrested and interviewed, and on 26 April 2013 both were charged after advice from the Crown
2 Prosecution Service with an offence of manslaughter by gross negligence. An offence contrary to section 2 of the Health and Safety at Work Act 1974 was later included at the PCMH hearing in the indictment preferred against them. Both defendants appeared before the Oxford Justices on 17 May 2013, with a preliminary hearing held in the Oxford Crown Court on 20 May 2103. 4. The PCMH took place on 19 August 2013. John Binning was arraigned and pleaded not guilty to manslaughter (Count 1) and to the section 2 offence (Count 2). Leading counsel for James Binning informed the court that an application to dismiss was to be made on behalf of his client and so James Binning was not arraigned. On 15 November 2013 the application to dismiss was listed before me, but as a result of discussions between counsel for the prosecution and leading counsel for the defendant the court was notified that the prosecution would not oppose the application, which was therefore granted. 5. Mr Michael Spencer QC on behalf of James Binning told me at that hearing that there was also an application for the prosecutor, i.e. the Crown Prosecution Service, to pay his client s costs, at that stage said to amount to 61,209.14 excluding V.A.T. The application was opposed by Mr Wicks for the prosecution and so after various communications between the court and James Binning s solicitors it was agreed that the application should be listed at the conclusion of the trial of John Binning.
3 6. The trial of John Binning was listed to start on Monday, 10 March 2014, but as a result of earlier discussions between the prosecution and the defence no evidence was offered on Count 1 (manslaughter) and the defendant pleaded guilty to Count 2 (the section 2 offence). The basis of his plea was the subject of negotiations and was eventually agreed and I approved it and directed that a Newton hearing was not required. John Binning was then fined the sum of 67,500 on 12 March 2013. 7. So far as James Binning s costs are concerned, section 16A of the Prosecution of Offences Act 1985, as inserted by the Legal Aid, Sentencing and Punishment of Offenders Acts 2012 ( LASPO ), now provides that an acquitted defendant, or a defendant against whom charges have been dismissed in the Crown Court, may not recover his legal fees or expert witness expenses out of central funds. These new provisions apply to any proceedings such as the instant case commenced after 1 October 2012, although there is now an exception re-instating the right to seek an order out of central funds of an acquitted defendant if he has applied after 27 January 2014 for a representation order and the Director of Legal Aid Casework has refused his application on the grounds of financial ineligibility. Whatever the thinking may be behind these provisions James Binning is not eligible to seek an order for costs out of central funds in this case, save in relation to those incurred in the court below before the justices.
4 8. It is however still provided by section 19 (1) of the Prosecution of Offences Act 1985 and regulation 3 of the Costs in Criminal Cases (General Regulations) 1986 that the prosecutor may be ordered to pay those costs of another party which have been incurred as a result of an unnecessary or improper act or omission by or on behalf of (the prosecutor). 9. The procedure for claiming such costs is governed by the Criminal Procedure Rules, r. 76.8 and by the Practice Direction (Costs in Criminal Cases) [2013] EWCA Crim 1632. The applicant must specify the various matters set out in r.76.8 (4) (c) and the respondent to the application must equally set out whatever objections there may be to the making of an order. In this case there have been written arguments on both sides in which the issues as to liability have been clearly identified, but unfortunately the prosecution s detailed objections to the bill, if an order were to be made, have not been spelled out as they would have been if this were a civil action. 10. The case for James Binning is that the decision of the Crown Prosecution Service to charge and prosecute him for the offence of manslaughter (and later for the section 2 offence) was an unnecessary or improper act within the meaning of se. 19 (1) of the 1985 Act and reg. 3 of the 1986 Regulations. The prosecutor s case is that on the evidence available to the prosecution when James Binning was charged it was both necessary in the public interest to charge him with the alleged offence of manslaughter and proper to do so; as in many
5 criminal cases information obtained after charge, submits Mr Wicks, may cast a different light on the prospects of securing a conviction and so the fact that the charges were dismissed by consent upon review by the Crown Prosecution Service does not mean that the defendant is entitled to his costs. 11. There is no dispute that if a prosecution has been commenced improperly the whole of those costs, subject to the discretion of the judge, may be recovered from the prosecutor: see R (On the application of Oddy) v. Bugbugs Ltd [2003] EWHC Admin 2865.. The question is whether an improper act or omission on behalf of the prosecutor has been established and whether the act or omission, if proved, has caused the defendant to incur the legal costs claimed by him. 12. What then must the applicant defendant prove to establish that the prosecutor has committed an unnecessary or improper act or omission? In DPP v. Denning [1991] 2 QB 532 the meaning of improper was described by Nolan LJ in the following terms: I would add in this connection that the word "improper" in this context does not necessarily connote some grave impropriety. Used, as it is, in conjunction with the word "unnecessary," it is in my judgment intended to cover an act or omission which would not have occurred if the party concerned had conducted his case properly. 13. It is clear therefore that the applicant does not have to prove the sort of professional impropriety which the Court of Appeal considered to be necessary in Ridehalgh v. Horsfield
6 [1994] Ch 205 to justify a finding of improper conduct. On the other hand regulation 3 does not entitle the applicant to recover costs on the basis that the prosecutor was negligent or unreasonable, words which appear in other provisions regulating the payment of costs both in the criminal and civil jurisdictions. 14. It is also important for the court to have well in mind the danger of emasculating the decision of Parliament to remove the general right of acquitted defendants to recover their costs out of central funds. Whatever injustice might be thought to arise if perfectly innocent and women who are above the Legal Aid limits are unable to recover their legal costs and expert witness expenses when found not guilty, the fact is that Parliament has decided that such a consequence should follow, and it has been held that the deprivation of the right of an innocent defendant to recover any costs in any circumstances does not even then infringe his Article 3 rights: see HM Attorney General for Gibraltar v. Shimidzu [2005] 1 WLR 3335. 15. In these circumstances Mr Wicks for the Crown relies strongly on the words of the Court of Appeal (Criminal Division) in R v. P [2011] EWCA Crim 1130: 13. More generally, the making of a costs order against the Crown in circumstances such as this is a very serious and unusual matter. That it should be exercised even after adjournment in a manner which is, on any view, thoroughly
7 flawed throughout is a matter of the greatest regret. Moreover, we are satisfied that this is an order which should never have been made. The decision to prosecute or not is a thoroughly difficult and delicate one. It is one on which two perfectly responsible lawyers may easily differ. It is only in the clearest possible cases that a decision taken by the appropriate authority in good faith could possibly justify a penalty in costs. 16. I was also referred to paragraph 15 of the judgment: 15. That said, the question in this case was not whether the decision to prosecute was right or wrong. It is simply not the judge's function to sit on appeal from a decision of the Crown Prosecutor. There may be very rare cases where the decision is wholly unreasonable. R (Oddy) v Bugbugs Ltd [2003] EWHC 2865 (Admin) was a different case altogether. That prosecution was brought by a private interest group in pursuit of a commercial objective. The point at issue was one of pure law. It had been decided previously against the prosecution. There could have been a challenge to the ruling by way of appeal to the High Court but there had been none. Unlike that case, in most cases such as the present, there will be room for a legitimate difference of opinion. It is important that the making of that decision should not be overshadowed by the fear that if a prosecution is continued and fails there may be an order for the payment of costs. An acquitted defendant will normally receive his costs from central funds unless there is a good reason why he should not. We do not say that there will never
8 be a case where a decision to prosecute is so unreasonable that a costs order is appropriate, but we are satisfied that this case was not arguably such. 17. Mr Wicks also relied on the references in R v. P (supra) to the possibility that the evidence relied on by the prosecution might turn out to be credible, and on the further words in that paragraph: Supposing that it was a wrong judgment on a difficult issue, that is not enough to justify an order for costs and it would not have been even if the relevant powers had been properly considered. 18. Mr Compton QC in response invited me to conclude that if the prosecutor has made a bad decision, that is sufficient to entitle the defendant to his costs, and he submits that the decision to charge James Binning with manslaughter was improper on that basis because (a) there never was a case for the employer of Dean Henderson-Smith to be prosecuted for gross negligence manslaughter; and (b) James Binning was never the deceased s employer and the most elementary enquiry would have established that to be true. 19. Whatever the precise nuances of the word improper and proper I reject the submission that the decision to prosecute Dean Henderson-Smith s employer for manslaughter was such as to fall foul of regulation 3. The evidence of the Health and Safety Executive in the form of the report of Ms Holmes at the
9 time was to the effect that the deceased had been sent on to a fragile roof with fragile roof lights without any precautions of any sort being taken by his employer for his safety and he had then fallen through to his death. In my judgment it was not for the prosecutor to reject Ms Holmes factual and expert opinion nor was it incumbent on the prosecutor before charge to have a detailed analysis of all the precautions that could practicably have been taken. It is also relevant that those representing John Binning, while instructed correctly as it turned out that the roof was non-fragile, declined to make an application to dismiss the charge of manslaughter against him, and whatever the tactical reasons may have been for that it can hardly be said in my judgment that the initial decision to charge manslaughter was improper. It was in my view not only made in good faith but made properly. 20. The question of the deceased s employment status is more difficult. Mr Wicks has very fairly indicated that the decision to prosecute James Binning for an offence of manslaughter was based on the proposition that he owed a duty of care to the deceased because Dean Henderson-Smith was his employee (as well as being an employee of John Binning). It was never suggested by the prosecution that James Binning had assumed responsibility for the safety of Dean Henderson-Smith in any other way. What then was the evidence in support of the
10 contention that James Binning employed Dean Henderson- Smith? 21. Benjamin Baker in his witness statement said this: John Binning is the father of James Binning and they both actively have a part in running the farm.it is quite a relaxed atmosphere working at the farm and if something needs doing then either James or John would say something like, When you ve got time, can you have a look at this? They would never order me about and just advise me that something needs fixing. The witness also provided hearsay evidence from the deceased that the family would sit down on a Sunday and would create a list of what needed to be done around the farm. 22. Both John and James Binning in the prepared statements that were given to the police before their no comment interviews made it plain that their case was that Dean Henderson-Smith was employed by John and not by James Binning, and John Binning in his statement provided a list of his employees. So at its highest the case that James Binning owed a duty of care arising out of an employer/employee relationship consisted of Mr Baker s evidence that both defendants took an active part in running the farm. 23. Mr Wicks submission in summary was that such evidence might have lead to a conclusion that contrary to the defendants self serving prepared statements there was, as he put in paragraph 6 of his skeleton argument, some arguable
11 basis.upon which it might have been possible to conclude that John and James Binning were effectively one and the same entity as employers of the workers at Binnings Farm (sic)..it might have been possible to conclude that the farm not only appeared to be but was in fact run as a family business with James exercising what appeared to be (because that was the reality) the position of an employer. (The business as I understand it is in fact is known as Binning Farms-there is no plural in the owner s name.) 24. In paragraph 7 Mr Wicks maintained, as he did in oral argument, that it was open to the reviewing lawyer in the absence of any contrary material to reach a reasonable conclusion that there existed between James Binning and the deceased a relationship of employer/employee equivalent to and effectively inextricable from the existence of the relationship which existed between John Binning and the deceased.. 25. It was not therefore being asserted on the basis of Mr Baker s evidence that the prosecutor could reasonably conclude that Dean Henderson-Smith had a contractual employment relationship with James Binning, or that James Binning was his direct employer, or that there existed a partnership between John and James Binning, but that there was an amorphous relationship equivalent to the contractual relationship between Dean Henderson-Smith and John Binning capable of supporting a duty of care towards the deceased.
12 26. No authority was cited to me in support of the proposition that an employment relationship can exist without at least some evidence of contractual mutual obligations and control of the employee by the employer, or that a defendant can be liable in negligence as an employer on the basis of some sort of equivalence to employment. 27. I do accept that the evidence of Mr Baker is capable of supporting a train of enquiry that might, if pursued, have produced evidence if it existed to prove a partnership between John and James Binning. Equally, and particularly in the light of the defendants prepared statements, such enquiry might, as it later did, have produced material to confirm what the defendants told the police about the deceased s employment status. 28. Mr Wicks submitted that the lawyer in this case was entitled to proceed on the basis that further material might have emerged to confirm Mr Baker s general assumption and thus prove the prosecution s case on the duty of care. Mr Compton QC however invited me to have regard to the Code for Crown Prosecutors and paragraphs 4.4 and 4.5 in particular. In other words the prosecutor must before charge be satisfied that there is sufficient evidence to provide a realistic prospect of conviction and must consider what the defence case may be and the impact of any information provided by the suspect.
13 29. I accept that the lawyer who advised that the defendants be charged with manslaughter did apply his mind to the issue of employment and that the decision was made in the light of the perfectly correct understanding that the existence of an employment relationship may sometimes depend upon a complex interplay of instructions, duties, payments and activities and I am satisfied that the decision was made in good faith. 30. The issue, however, here is whether it was proper to charge James Binning with manslaughter on the basis of an otherwise unexplored expectation that employment might in due course be firmly established, or whether it was improper to do so without further enquiry. 31. I have referred to the meaning of improper and to the test of acting properly. A prosecutor s duty to act properly seems to me to require him or her to carry out sensible enquiries to see whether a relevant fact or proposition of law does meet the evidential test at the time the charging decision is made. Where a process of decision making is required and when executed it turns out to have been carried out in a flawed manner, but the process if correctly followed would have established that the Crown s case could not be made out, it is both the failure of process and the erroneous decision flowing from it that is then capable of being characterised as an improper act or omission. Properly in this context denotes in
14 my judgment a correct application of the right process to arrive at a proper decision, having regard to the interests of justice. 32. In my judgment the prosecution in this case, in a very rare instance of such conduct, did act or omit to an act in a way that was improper, for the following reasons: a. An allegation of manslaughter is a very serious matter and should not be the subject of proceedings without the most careful consideration of the state of the evidence. b. The Code for Crown Prosecutors clearly requires the prosecutor to consider the impact of information provided by the suspect, including his likely defence. In this case John and James Binning are men of good character and, though any statement made by them may be self-serving, when both have asserted unequivocally that Dean Henderson-Smith was an employee of the former and not the latter, such assertions, which might be easily disproved if wrong, should not be lightly dismissed. c. Given the limited and generalised account by Mr Baker which might, if accurate, have enabled the prosecution to secure other evidence to prove the existence of a partnership, it is my view that the defendants assertions to the contrary clearly triggered a need to see what other evidence there might be capable of supporting a duty of care based on employment.
15 d. The assertions made by the defendants were known to the police by the end of October 2012, the file according to the disclosed e-mail traffic was sent to the Crown Prosecution Service on 24 January 2013 and the defendants were charged on 26 April 2013. This is not a case therefore where a difficult decision had to be made in a short period of time. There were months in which an enquiry into Dean Henderson-Smith s employment status could have been carried out. Other workers could have been asked for statements; accounting and tax records could have been sought and so on. On the material put before me, however, it appears that no action of any sort was taken to enquire whether the defendants assertions were right or wrong and everything was left to depend on what Mr Baker had said. Indeed no independent enquiry seems to have been undertaken at any time until the case was reviewed after the PCMH in the light of the defence statements and information provided by the defendants themselves. 33. In DPP v Denning the failure of the prosecution was to have omitted to review the strength of the case in a timely fashion after proceedings had been commenced; in this case however it seems to me that the process of enquiry and review is one that should clearly have been carried out before charge and
16 not afterwards and the omission to do so leads to my conclusion that the prosecution did not deal with this case properly. 34. I should emphasise that I am sure that the Crown Prosecution Service acted in good faith in instituting proceedings against James Binning for manslaughter and that with both James Binning and John Binning carrying on activities on the farm and helping each other out, proof of the existence of a partnership would not have been surprising if there had been evidence of it; but in my view the prosecution placed an improper degree of reliance on appearances and failed to look for evidence to establish whether a partnership (or other recognised basis for employers liability) could be proved. 35. I am satisfied therefore that James Binning has incurred costs as a result of a relevant improper act or omission on the part of the prosecutor, namely: a. Failing to carry out any proper enquiries before proceedings were commenced against James Binning for manslaughter to satisfy the evidential test for proving that the deceased had been employed by him, leading to: b. Advice being given to the police that James Binning should be charged with manslaughter, and then taking proceedings against him. 36. The reasons for the finding have been set out above. 37. There has been no submission by the prosecution whether orally or in writing that the defence could and should
17 have applied to dismiss at an earlier stage, and so in principle all the defendant s costs have in my judgment been incurred causatively as a result of the relevant act or omission. 38. There is no formal procedure for the assessment of costs under regulation 3, not even a reference to the need for the applicant to prove that they have reasonably or necessarily or proportionately incurred. The judge has a discretion whether to order the party in default to pay all or part of the costs said to have been incurred: see R (on the application of the Commissioners for Customs and Excise) v. Crown Court at Leicester [2001] EWHC Admin 33 @ [16]. The discretion has of course to be exercised in a principled fashion, and in principle it seems to me that I should first decide whether James Binning has incurred the costs as claimed, then decide whether it was necessary and reasonable for him to have incurred them and finally consider, in the context of a prosecution for manslaughter, whether they are proportionate to that issue. 39. Mr Wicks submitted that James Binning had not incurred any costs because insurers were in practice paying them. He did not however seek to argue that there was no indemnity between the defendant and his solicitors or that James Binning had been promised by his solicitors that he would never have to pay their costs in any event. It was not therefore necessary for me to carry out an enquiry into the contractual arrangements between James Binning and his solicitors and in those
18 circumstances, where I find that the defendant was bound to indemnify his solicitors, it must follow that he personally has incurred costs, even if insurers have been paying them so far. 40. James Binning claims that his costs now come to 67,366, and a schedule to that effect was produced on the second day of the hearing. Mr Wicks was not in a position to challenge the details of the schedule and the document itself is very far from being the sort of bill that would be required for a detailed assessment in a civil action (e.g. other preparation apart from drafting, attendances, letters/e-mails claimed at 20.5 partner hours without further description). I have directed an interim payment of 40,000 in the hope that agreement might be reached between the parties, but if not the matter can be listed for further argument, without any indication whether the final award will or will not be substantially different. His Honour Judge Eccles Q.C. 18 March 2014