Costs Application

[2025]JRC066

Royal Court

(Samedi)

7 March 2025

Before     :

A. R. Oldland K.C., Commissioner, sitting alone

The Attorney General

-v-

Benjamin Mitton

M. L. Preston, Crown Advocate.

Advocate D. C. Robinson for the Defendant.

EX-TEMPORE JUDGMENT

THE COMMISSIONER:

1.        I am going to deal with the contention that is summarised by the phrase le criminal tient le civil en état first of all, which in essence means that criminal cases should go before civil cases.

2.        There is a good deal of jurisprudence on this point and I am not going to go through it all other than to state this.  This is a costs application and nothing more than that, and in my view it is very difficult to see how dealing with this particular civil application could prejudice the criminal trial that is about to take place.  The issues of fact that are to be determined in this application are not similar to those that are to be tried in the criminal proceedings. They issues in the criminal proceedings are referred to, of course, but they are not the same issues that I have to decide today.  So I am going to deal with this application for costs today.

3.        So this is an application made by the Defendant for the recovery of his legal costs incurred as a result of a representation submitted on his behalf on 5 September 2023.

4.        For ease of reference I will refer to the Representor and the Applicant in these proceedings as “the Defendant”.  The Defendant is due to stand trial on 22 April 2025 on an indictment containing three counts,

(i)        One of larceny as a servant contrary to customary law, and

(ii)       Two offences of transferring criminal property contrary to Article 31 of the Proceeds of Crime (Jersey) Law 1999.

5.        Put very shortly, the prosecution alleged that between 2015 and 2019 the Defendant abused his position of trust as both an employee and a family member in a family scrap metal business to steal nearly £400,000 in cash from the business and then use newly opened bank accounts to launder this stolen money.

6.        A feature of the prosecution case is that the financial systems and controls in the business were poor.  It is their case that the Defendant took advantage of this to steal.

7.        A criminal investigation began in April 2019 and by August 2020 it was decided to submit an application for a Saisie Judiciaire to the Royal Court which was granted on 18 August 2020.  I will refer to this henceforth as “the Order”.  This Order had the effect of freezing bank accounts in the Defendant and his wife’s names and prevented the disposal of certain other assets.  This application was made pursuant to articles 15(1)(A) and 16 of the Proceeds of Crime (Jersey) Law 1999.

8.        By September 2023, a decision on charge had not yet been communicated to the Defendant and the Order remained in place.  Lawyers acting for the Defendant had been chasing the Attorney’s Department for a decision on charge for some time.  The Defendant’s lawyers decided to make an application to discharge the Order.  The defence asserted that there had been undue delay in commencing proceedings and sought to have the Order discharged under Article 16(6)(b)(1), which reads:

“A saisie judiciaire -

(a)      may be discharged or varied in relation to any property;

(b)      in a case falling within Paragraph (1A) of Article 15 - (which this did)

(i)  may be discharged, on the application of the alleged offender and before the commencement of any proceedings against the alleged offender, where the Court is satisfied that there has been undue delay in commencing proceedings in pursuance of the criminal investigation;”

Subsection 2 deals with the situation where the Attorney informs the Court that proceedings will not be commenced.

9.        The defence further rely on the dicta of the Bailiff in re Kaplan [2009] JLR 88 which held, and I paraphrase, that saisie judiciaire, given their draconian nature, should be kept under continuous review by the Attorney General so as to ensure that no injustice is being perpetrated.

10.     I have heard evidence from Advocate Hopwood that no advance written notice was given of the representation and that, had this happened, the defence would have been told that the investigation had been concluded and that a file was being prepared for a final charging decision.  The representation was adjourned by agreement until a date in October 2023, but on 6 October 2023 the Defendant was charged.  The defence subsequently withdrew the representation concluding that it could not be maintained as such an application under Article 16(6)(b)(1) could only be made before the commencement of proceedings but reserved their position as to costs.

11.     It follows that this is not an application for costs following a successful representation.  The representation was never determined, nonetheless application for costs is made.  The application is made pursuant to Article 2 of the Civil Proceedings (Jersey) Law 1956.  Article 2 reads:

Power of Royal Court to award costs

(1)     Subject to the provisions of this Part and to rules of court made under the Royal Court (Jersey) Law 1948, the costs of and incidental to all proceedings in the Royal Court shall be in the discretion of the Court, and the Court shall have full power to determine by whom and to what extent the costs are to be paid.

12.     Having listened carefully to the arguments most ably advanced by both advocates, I have concluded, as a matter of my discretion, not to award the costs of representation.  This is because, furnished with the evidence from Advocate Hopwood now before the Court, I would not have allowed the representation had it been made in September 2023.  My reasons for not exercising my discretion in favour of awarding costs or preparing for the representation are as follows.

13.     First, this was a representation that was never in fact heard, the reason it was not heard was that charges were brought shortly after it was lodged.  The fact that a decision on charge was imminent in September 2023 is a fact I find that would have emerged if the representation had been heard in September 2023.

14.     Second, I also find, in accepting Advocate Hopwood’s evidence on this aspect, that had the defence notified the prosecution in advance of its intention to make the representation, as perhaps it should have done under the practice direction that I have been referred to, or, if not, then under the general principles enunciated in both the Criminal and Civil Procedure Rules that govern the proper administration of justice between the parties in this jurisdiction, they would have been told that a decision on charge was imminent.

15.     Third, that Advocate Robinson quite properly on behalf of the Defendant does not assert that there is any bad faith or conduct deserving of moral condemnation or other malicious/vexatious conduct on behalf of the prosecution. His contention is that the delays were unreasonable and he relies on the case Kaplan cited earlier and an English case Regina v S [2019] EWCA Crim 1728 to support his contention that the test here is essentially one of unreasonableness.

16.     The test I will apply is that contained in statute, namely am I satisfied that there has been undue delay in commencing proceedings, assisted by the dicta of the Bailiff in Kaplan as to the need for continuous review by the Attorney General so as to ensure that no injustice is being perpetrated?  I do, however, find the non-exhaustive list of factors identified in the English case of Regina v S a useful guide to assist me in the exercise of my discretion.

17.     Taking each of those factors in turn;

(i)        The length of time that had elapsed since the restraint order was made:

Restraint orders are the similar, but not identical, English equivalent. Since the Order had been made in August 2020, it was in place for just over three years.  This is without doubt a considerable period of time for such an order to remain in place, so it is necessary to look at why this was.

(ii)       The reason and explanation advanced for such lapse of time:

Advocate Hopwood set out in some detail the reasons for this.  They include:

(a)      the complexity of the investigation given the poor record keeping of the business which is, as I said earlier, part of the prosecution’s case,

(b)      the need to gather evidence via letters of request,

(c)      the need to gather evidence from multiple witnesses on multiple occasions,

(d)      the need to analyse and re-analyse the financial evidence,

(e)      the fact that resources were diverted on at least two occasions to other more serious investigations,

(f)       that the Defendant when interviewed on no less than four occasions replied “no comment” to all questions asked of him, and

(g)      that it was made clear that any prosecution would be put to strict proof that any cash paid into the Defendant’s account had come from the business.

I make it clear that I make no criticism of the defence or the Defendant on either of the last two features.  It is a Defendant’s right to reply “no comment” in interview and to put the prosecution to strict proof on elements of the case that it must prove.  But it has meant that the investigation needed to be broader and to take longer than otherwise might be the case.

(iii)      The length and depth of the investigation before the restraint order was made:

The investigation had been ongoing for over a year before the order was made.  It was not therefore made in haste and without a firm basis for concluding that what had been discovered by the investigation merited not only further investigation but the application for the Order.

(iv)     The nature and extent of the restraint order:

The Order focused on assets alleged to have been accumulated directly as a result of the alleged thefts, in particular funds held in bank accounts into which the alleged stolen cash had been paid and had accumulated.

(v)      The nature and complexity of the investigation and the potential proceedings:

Although not the biggest of fraud cases, the investigation was, I find, complex for the reasons that I have set out earlier.

(vi)     The degree of assistance given to or obstruction of the investigation:

No assistance was given to the investigation by the Defendant, however, he did not obstruct the investigation either.  I do not repeat what I have said earlier on this.

18.     To these non-exhaustive factors, I add that I accept the evidence of Advocate Hopwood that notwithstanding the duration of the order, it was kept under “continuous review.”  Advocate Hopwood stated that far from the case getting weaker, which could be a reason to seek the discharge of the order, the case strengthened the longer the investigation went on.

19.     Taking all of this in the round, I have concluded not to exercise my discretion in ordering the defence costs of the representation.

20.     I add one further observation. At the outset of this application I raised with both advocates the potential applicability of Costs in Criminal Cases (Jersey) Law 1961 which describes itself as:

"A Law to empower Courts of Justice to order the payment of costs in criminal and quasi-criminal cases and for purposes incidental thereto".

This is the Law which governs costs in criminal proceedings.

At first blush it strikes me that these pre-charge proceedings could be categorised as "quasi-criminal" and may constitute "purposes incidental thereto".  However, as both advocates urged me to approach this application under the civil costs regime, that is what I did, so this point was not argued before me.

Authorities

Proceeds of Crime (Jersey) Law 1999.

re Kaplan [2009] JLR 88.

Civil Proceedings (Jersey) Law 1956.

Regina v S [2019] EWCA Crim 1728.

Costs in Criminal Cases (Jersey) Law 1961