IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2
Thursday, 17th December 1997
B e f o r e:
LORD JUSTICE PILL
and
MR JUSTICE GARLAND
- - - - - -
REGINA
-v-
BARNET MAGISTRATES' COURT
EX PARTE CANTOR
- - - - - -
MR P MCGRAIL (Instructed by Rowe and Cohen, Manchester) appeared on behalf of the Applicant.
MISS K ASTANIOTIS (for hearing) (Instructed
by the Crown Prosecution Service) appeared on behalf of the Respondent.
- - - - - -
J U D G M E N T
(as approved)
The Applicant seeks an order of certiorari quashing a suspended committal order made by the Magistrates for the Petty Sessional Division of Barnet on 2nd September 1996 and a further order on 9th December 1996 whereby the Applicant was committed to prison for nine months for default in payment of an order for costs in the sum of £30,000: in addition, he seeks an order of mandamus directing the Clerk to the Justices to repay to his mother, Eve CANTOR, the sum of £30,000 plus accrued interest, representing the amount paid into court on her behalf by solicitors acting upon her instructions on 9th December 1996. When this matter came before the Court on 19th November, the Respondent was not represented or present. After hearing argument, directions were given for further evidence to be filed and the hearing adjourned. On 28th November, the Crown Prosecution Service appeared by Counsel and, although further information had been made available by the Clerk to the Justices to the Crown Office, the Respondent was not represented or present. By re-amendment, the Applicant also seeks declarations to which reference will be made later in this judgement.
There are accordingly two issues for the Court:-
1. The validity of the committal
order.
2. Repayment of the £30,000.
It is necessary to set out the history of events before turning to matters of law and argument. On 7th September 1973, the Applicant's father, Cyril CANTOR, created a Discretionary Trust in contemplation of the Applicant's marriage for the benefit of the Applicant and any of his children. In fact he has two children. The terms of the Trust provided that the distribution of income and the application of the capital were in the absolute discretion of the Trustees.
Cyril Cantor had established a large retail furniture chain, Cantors plc, in which the Applicant was employed until 1982 when he left to set up in business on his own. On 15th August 1983, Cyril Cantor created a further similar Discretionary Trust for the benefit of the Applicant and the Applicant's sister. The Applicant's business was at first successful but then ran into difficulties. In order to overcome them he resorted to dishonesty. In 1987, Cantors plc issued six million non-voting shares to existing shareholders. The Applicant used forged share certificates bearing the numbers of genuine share certificates forming part of this issue to deposit with various banks as security. He succeeded obtaining facilities exceeding £2M all of which was lost. On 21st December 1990 he was adjudicated bankrupt. Following criminal investigations he was on 24th November 1992 convicted after a trial at Knightsbridge Crown Court of thirteen counts of using a false instrument with intent to defraud; four counts of obtaining a pecuniary advantage by deception and two counts of obtaining property by deception. On 7th December he was sentenced to four years' imprisonment, disqualified for ten years pursuant to the Company Directors' Disqualification Act 1986 and ordered to pay £30,000 towards the costs of the Prosecution. That order was made under Section 18(1)(c) of the Prosecution of Offences Act 1985. No order was made allowing time for payment or permitting payment by instalments.
On 30th April 1993, the Applicant applied for leave to appeal against sentence. The Grounds upon which the application was made related solely to the term of imprisonment. Leave to appeal was not granted until 6th August. On 9th November, the Applicant was released on licence. His release after eleven months is explained by his having spent a substantial period on remand in custody before he was sentenced. On 21st December he was automatically discharged from bankruptcy. On 13th January 1994, his appeal against sentence was heard and dismissed. On 12th April, a Transfer Order was made appointing Barnet Magistrates Court as the Collecting Court for the costs order. On 19th April, he appeared before the Court which made an order for the payment of £1,000 by 5th June. No payment was made. On 5th June, the Applicant applied to Knightsbridge Crown Court, it is assumed under Section 34 of the Powers of Criminal Courts Act 1973, for time in which to satisfy the order. He was ordered to pay £1,750 by 31st December 1995 after which the matter was to be reviewed. Shortly before that date, on 12th December, the Applicant's mother, Mrs Eve Cantor, swore an affidavit deposing to his lack of means, the fact that she was providing him with support and that she alone in the family was prepared to do so. No payment was in fact made by 31st December 1995 nor for many months thereafter and on 23rd July 1996 the Applicant attempted to appeal to the Court of Appeal Criminal Division against the costs order. His application was refused by the Registrar on the grounds that the Applicant had exhausted his rights of appeal.
No payment having been made, Barnet Magistrates Court embarked on an enquiry into the Applicant's means.
Section 41 (1) of the Administration of Justice Act 1970 provides:-
"In the cases specified in Part 1 of Schedule 9 to this Act (being cases where, in criminal proceedings, a Court makes an order against the accused for the payment of costs, compensation etc.) any sum required to be paid by such an order as is there mentioned shall be treated for the purposes of collection and enforcement as if it had been adjudged to be paid on a conviction by a Magistrates Court, being - .................................. (b) .......... such Magistrates Court as may be specified in the order".
Schedule 9 is headed "Cases where Payment Enforceable as on a Summary Conviction". These include by paragraph 4:-
"Where a person is prosecuted or tried on indictment ...... before [the Crown Court] and is convicted, and the Court [makes an order as to costs to be paid by him]".
The powers of collection and enforcement in a Magistrates Court are contained in Part III of the Magistrates Courts Act 1980. Section 75(1) permits the Court to allow time for payment or order payment by instalments; Section 76(1) provides:-
"Where default is made in paying a sum adjudged to be paid by a conviction or order of a Magistrates Court, the Court may issue a warrant of distress for the purpose of levying the sum or issue a warrant committing the defaulter to prison".
Section 77(2) provides:-
"Where a Magistrates Court has power to issue a warrant of commitment under this Part of this Act, it may if it thinks it expedient to do so, fix a term of imprisonment ..... and postpone the issue of the warrant until such time and on such conditions, if any, as the Court thinks just."
Section 82(3) provides:-
"Where on the occasion of the offender's conviction a Magistrates Court does not issue a warrant of commitment for default in paying any such sum as aforesaid or fix a term of imprisonment under the said Section 77(2) which is to be served by him in the event of such default, it shall not thereafter issue a warrant of commitment for any such default ..... unless ...... (b) the Court has since the conviction enquired into his means in his presence on at least one occasion."
By virtue of Section 41 of the Administration of Justice Act 1970 to which reference has been made, the order for costs fell to be treated as if it had been adjudged to be paid on a conviction. Sub-section (4) of Section 82 provides:-
"Where a Magistrates Court as required by sub-section (3) above to enquire into a person's means, the Court may not on the occasion of the enquiry or at any time thereafter issue a warrant of commitment for a default in paying any such sum unless - .......
(b) the Court -
(i) is satisfied that the default is due to the offender's wilful refusal or culpable neglect; and
(ii) has considered or tried all other methods of enforcing payment of the sum and it appears to the Court that they are inappropriate or unsuccessful."
The methods of enforcing payment for the purposes of the preceding sub-section are set out in the following sub-section 4(A) and are:-
(a) a warrant of distress under Section 76;
(b) an application to the High Court or County Court for enforcement under Section 87;
(c) a money payment supervision order under Section 88;
(d) an attachment of earnings order.
On 2nd September 1996, the Applicant appeared before Justices at Barnet for the enquiry into his means. The Applicant was represented by Counsel. The Justices had before them the two Trust Deeds and the affidavit of Mrs Eve Cantor. There was evidence that the Applicant received £400 per month from the Trustees and paid his mother £200 per month for his keep. She provided him with living accommodation, did not charge him rent and also provided him with the use of a car. He earned some modest sums by way of commissions but had no regular income. The Justices also had before them a Pre-Sentence Report dated 4th December 1992 in which the writer reported the Applicant as asserting that he had £300,000 to £500,000 which might be used to recompense the losers from his financial activities. At that time he was, of course, bankrupt and any assets would have vested in his trustee in bankruptcy. The Justices may have thought that this was a reference to the Discretionary Trusts since it appears from Counsel's brief note that they in fact found that the Applicant had "no assets nor any work" and, in considering Section 84(4A) of the 1980 Act declined to make a money payment supervision order; to take High Court or County Court proceedings, or to make an attachment of earnings order. The Justices found that the Applicant had culpably neglected to pay the costs order and made a suspended committal order of nine months' imprisonment to take effect if he did not pay the whole amount due by 9.45 a.m. on 9th December 1996. They did not state the basis upon which the order was made. The Applicant requested them to state a case but this was refused as being frivolous. This Court has before it an affidavit of the Clerk to the Justices sworn on 18th November of this year in which he deposes that the Justices found culpable neglect and made the order for the following reasons:-
"(a) The Pre-Sentence Report ...... indicated that Mr Cantor had assets of upwards of £300,000;
(b) Mr Cantor had not satisfactorily explained why the costs order could not be settled from those assets;
(c) The Justices had on two occasions given Mr Cantor the opportunity to pay nominal sums towards the costs but no payments whatsoever had been received in over a year;
(d) Mr Cantor continued to have the benefit of a flat in the better part of the borough and the use of a car;
(e) Mr Cantor gave evidence of expenditure on restaurant bills, mobile phones and trips abroad all paid for out of a Discretionary Trust, over which he has no control, but the Trustees are all close family members."
At the beginning of December, the Applicant, still having made no payment, applied for Judicial Review of the Magistrates' order. On 5th December leave was refused on a paper application but the following day it was renewed before this Court which took the view that the application was premature because the Magistrates Court was due to deal with the matter three days later on the 9th. On that day, the Applicant produced a letter from a solicitor who was a Trustee of both the Discretionary Trusts. He stated:-
"I understand that the Barnet Magistrates Court expect that assets of either or both of these settlements are used to pay costs owed by Stephen Cantor. Both settlements are discretionary and no beneficiary has any right to capital or income.
I have consulted my co-trustees regarding this matter and we consider that the request is beyond the current ambit of the Trusts to satisfy and, accordingly, we are unable to recommend any payment".
The wording of the second paragraph is somewhat opaque but it is a permissible comment that even assuming there were sufficient funds available, settlement of the Applicant's liability would have been very much to the disadvantage of the other beneficiaries. There was evidence that the Applicant had commenced employment in November: he offered £200 per month from his salary. The Justices decided that there had been no change of circumstances since September and since no payment had been made, they issued the committal warrant. Their Clerk, in his affidavit, deposes in paragraph 13:-
"The Justices were correct in taking into account the existence of the Discretionary Trust as Mr Cantor received income from that source and had a wide and unfettered choice concerning the spending of that income but chose not to utilise it for payment of the costs order".
Mrs Cantor was greatly concerned at the prospect of her son going to prison again. She therefore deposited £30,000 of her own money with the Applicant's solicitors with instructions that it should only be paid over to the Court if it became absolutely necessary, and in particular to avoid the necessity of her son going to prison. Miss Nichola Evans, the Applicant's solicitor, has sworn affidavits dated 25th February and 19th November of this year deposing to her instructions and the events of 9th December 1996. It became clear to her as the result of telephone conversations during the morning of the 9th that there was a real likelihood that the Applicant could be committed to prison. She was instructed by Mrs Cantor to inform the Court that £30,000 would be paid to the Court that evening. Accordingly, a letter was sent by facsimile transmission to the Court at 11.14 in the following terms:-
"Re Stephen Cantor hearing 9th December 1996
We refer to the above-named, particularly with regard to the Costs Order made against him in the sum of £30,000 for prosecution costs.
We can advise that we are currently holding £30,000 cleared funds in Client Account. We are authorised by the Donor and our Client to release these funds and confirm that a cheque will be forwarded to you tonight to discharge the Costs Order.
We would be obliged if you would place this matter before the Magistrates accordingly".
The Court was apparently unwilling to act on the undertaking contained in the letter and Miss Evans enquired whether it would accept a telegraphic transfer. By this stage, the committal order had been made and the Applicant taken to the cells. After further telephone conversations the money was telegraphically transferred in the afternoon. The Applicant was released. The additional evidence of Miss Evans and of Mrs Cantor make it abundantly clear that the money was deposited with the Solicitors and paid over by them to avoid the threat of the Applicant being committed to prison, not to discharge his obligation in any event. Mrs Cantor deposes that in the absence of such a threat the money would not have been made available. It is her belief that she should not have had to pay it and she now wishes to recover it. The Applicant has deposed that as between him and his mother, he makes no claim to it.
There were three strands to the Applicant's argument:-
1. The Justices must have assumed, and assumed wrongly, that the Applicant was in a position to draw on the Discretionary Trusts to discharge the entire liability notwithstanding the solicitor trustee's letter.
2. It is unlawful to make an order which it is beyond the Applicant's means to pay.
3. It is unlawful to make an order in the expectation that it will be paid by a third party.
Mr McGrail referred the Court to Re Smith, Public Trustee v. Aspinall [1928] Ch 915 for the proposition that a beneficiary under a Discretionary Trust had only a hope not an entitlement. At page 919, Romer, J. said:-
"Where there is a trust to apply the whole or such part of a fund as trustees think fit, to or for the benefit of A, and A has assigned his interest under the trust or become bankrupt, although his assignee or trustee in bankruptcy stand in no better position than he does and cannot demand that the fund should be handed to them, yet they are in a position to say to A, 'Any money which the trustees do in the exercise of their discretion pay to you passes by the assignment or under the bankruptcy'. But they cannot say that in respect of any money which the trustees have not paid to A or invested in purchasing goods or other things for A but which they apply for the benefit of A in such a way that no money or goods ever gets into the hands of A".
Mr McGrail also referred to Wilberforce, J.'s (as he then was) approval of a passage in the 25th Edition of "Snell's Principles of Equity" at page 148 of Re Munro's Settlement Trusts [1963] 1 WLR 145:-
"A Discretionary Trust is one which gives a beneficiary no right to any part of the income of the trust property, but vests in the trustees a discretionary power to pay him, or apply for his benefit, such part of the income as they think fit. The trustees must exercise their discretion as and when the income becomes available, for they have no power to bind themselves for the future. The beneficiary thus has no more than a hope that the discretion will be exercised in his favour".
In my judgment, the Justices could only have concluded that the Applicant would be able to pay £30,000 by resorting to the Discretionary Trust. This was an error. They should in the circumstances only have taken into account such sums as he had actually received. Consequently, on this ground alone, the order of 2nd September and the committal order should never have been made.
Mr McGrail further submitted on authority that it is unlawful for Justices to impose a fine which a defendant has no realistic prospect of paying, a fortiori if it is imposed in the hope or expectation that it will be paid by a third party. The principle, he submitted, is equally applicable to a costs order. We were referred to the case of R. v. Curtis [1984] 6 CAR(S) p.251: the driver of a lorry carrying half a ton of contraband tobacco was sentenced to six months imprisonment suspended for two years and fined £10,000 to be paid within three months with 12 months imprisonment in default. In imposing the fine the sentencer indicated that he was imposing it to see if those who had put the appellant up to the offence would pay: it was accepted that the appellant did not have the means to pay. The Court having determined that the appellant was not in a position to pay a fine of any substance at all let alone £10,000, quashed that part of his sentence and also considered the hope of payment by a third party. At p. 252, Boreham, J., giving the judgement of the Court, said:-
"Secondly, says Mr O'Sullivan, it is wrong in principle that a fine should be imposed on the footing that it will be paid by others: perhaps others who ought to pay. In support of that he refers us to a recent decision of another division of this Court in the case of Burke which was decided on November 30th, 1982 in which Lord Justice Robert Goff, who gave the judgement of the Court, had this to say, 'In our judgement, it is wrong in principle to impose a find on an assumption that others will pay the fine (the others in this case being those who were operating this particular distribution of cannabis) and to impose a prison sentence in default of payment of the fine, which will really have the effect of the appellant having to serve another year in prison if others do not pay the fine'. Those words, which we respectfully endorse, apply in full to this case as Mr O'Sullivan contends. There was no evidence here that anyone else would certainly pay the fine. It was hoped that that is what might happen. One can understand the feelings of the learned Judge, but one has to say that what he did was wrong in principle".
In the case of Charalambous reported at page 389 of the same volume, the Court had to consider the means of a married woman who helped her husband run his newspaper kiosk but whose personal earnings appeared to be of the order of £15.00 per week. At page 390, MacPherson, J., giving the judgement of the Court, said:-
"However, it does appear that the total of that income represents the income from the kiosk and was therefore the whole income available to Mrs Charalambous and her husband, who was the owner of the kiosk. She worked there and there is some evidence that her own personal income from the takings was about £15 per week. ........ in the judgement of this Court, a £300 fine in respect of £10 of goods from a shop, in the circumstances of this case, was too high. It is important that fines are not so high that a person really cannot pay them from his or her own money. It seems to this Court unjust that a family should be fined, which may have been the decision in this case."
The fine was substantially reduced.
Our attention has been drawn to two recent unreported cases to the same effect. In Colfox v. Dorset County Council, this Court on 10th December 1996 held that a fine which the defendant, on the evidence of his means, would only be able to pay over a period of ten years, was plainly unlawful. If it was imposed in the belief or expectation that his wealthy family would pay it for him, that too was unlawful. Charalambous was referred to and approved. In R. v. Truro Crown Court ex parte Adair a further decision of this Court (the Lord Chief Justice and Moses, J.), a fine and costs order imposed by the Crown Court on appeal from Justices which were quite clearly beyond the means of the defendant to pay were held to be unlawful and were quashed.
In my judgment, there is no distinction to be drawn between a fine and an order for costs: both the suspended committal order and the order actually committing the applicant to prison were made on an incorrect basis in law; the sum to be paid was plainly beyond the applicant's means and if there was an expectation that it would be paid by a third party that too was unlawful.
For these reasons I would quash the orders.
Mr McGrail submitted that since the orders made on 2nd September and 9th December were unlawful and must be quashed, the status quo ante must be restored by the repayment of the £30,000 plus interest to Mrs Eve Cantor. He submitted that the Clerk to the Justices held the money as trustee for Mrs Cantor and that the Applicant had a sufficient interest under Order 53 Rule 3(7) to seek an order of mandamus. Alternatively, he seeks the declarations added by way of re-amendment. In my judgement, the Applicant plainly has a sufficient interest to seek Mandamus or a Declaration. It was his obligation that was discharged, and granted that Mrs Cantor was not making a gift, she would have an arguable case against the Applicant for the recovery of the money paid.
It appeared to the Court in the course of argument that there were difficulties in ordering mandamus in that:-
(1) The money had been paid over by the Clerk to the Justices to the Crown Prosecution Service so that there was no identifiable or traceable fund of which he could be trustee or for which he might be liable to account to Mrs Cantor. However, the Court was informed by Counsel for the Crown Prosecution Service that it was accepted that the order should be quashed and that there was no objection to Mrs Cantor being reimbursed by the Clerk to the Justices out of future receipts from costs orders. However, no admissions were made as to the lawfulness of any such reimbursement.
(2) There is no authority for the use of mandamus to enforce a civil duty to make restitution to a third party even though the duty arises from the quashing of an order.
(3) There was no public law obligation to be found in any of the relevant Acts or Rules requiring a Justices' Clerk to make a repayment to a third party.
Mr McGrail, while not asking the Court to make any order under O.53 R.9(5), accepted that Mrs Eve Cantor could bring a civil action against the Clerk to the Justices for restitution but it would be a novel one and not free from difficulty. He therefore applied for leave to re-amend his Grounds in order to ask for the declarations which would serve as a strong indication to the Justices of what ought to be done, or as a last resort, the basis of a civil action.
His principal argument was that if the payment was made as the result of an unlawful order, the Justices' Clerk would hold the money as trustee and be liable to account to Mrs Cantor for it. Apart from the fact that the money has long since been paid over to the Crown Prosecution Service, I would have entertained considerable doubt whether this was the correct legal categorisation of the consequences of the payment. Liability to account is an extremely limited concept which is summarised in Chitty, General Principles at paras 29-113 to 29-121.
Money paid by mistake as a result of an actual or perceived threat falls to be recovered in accordance with the principles of restitution or quasi contract. Unfortunately, the law lacks clarity and is bedevilled with distinctions such as the different consequences flowing from mistakes of fact and law and, if the latter, whether public law or private rights. The present state of the law is summarised by Lord Goff in Woolwich Building Society v. Inland Revenue Commissioners [1993] AC 70 at pp 163E-166B. It has also been considered by the Law Commission in its Consultation Paper No 120 "Restitution of Payments Made Under a Mistake of Law". Lord Goff, while at p.165C observing that he did not think it right to regard the categories of money paid under compulsion as closed, nevertheless went on to enumerate the instances where money not paid under a mistake of fact or compulsion was not recoverable. In the event the Building Society succeeded in recovering interest on tax paid under protest, the House of Lords holding, by a majority, that the nature of a demand for tax or a similar impost on the citizen by the state with the perceived consequences to the citizen of non-payment, and the unjust enrichment of the state where the citizen paid an unlawful demand to avoid those consequences, warranted the provision of a remedy as the claim fell outside the statutory framework governing the repayment of overpaid tax. More recently, in Westdeutsche Landesbank Girozentrale v. Islington London Borough Council [1966] AC 669, Lord Goff, in a dissenting speech, considered whether the equitable jurisdiction to award compound interest in the case of a personal claim for restitution should be exercised in a commercial claim. At p. 697 he expressed the view that there should be such an extension and that the law should be allowed to grow. At p.697E he said:-
"No genetic engineering is required, only that the warm sun of judicial creativity should exercise its benign influence rather than remain hidden behind the dark clouds of legal history".
In my judgment, a claim by Mrs Cantor to recover her £30,000, although meritorious and receiving some support from the Woolwich and encouragement from the Westdeutsche Bank cases, would be, as Mr McGrail conceded, both novel and not free from difficulty.
It would, of course, be convenient if all matters consequent upon the quashing of an unlawful order could be dealt with at the same time by the same Court, but ordering mandamus to enforce a civil claim by a Third Party would be an extension of the jurisdiction of the Court substantially beyond O.53 R.9(5); in addition the Court should be cautious in supplying a remedy by way of judicial review where a claim by writ would be anything other than obvious and certain.
Turning to the third matter, there is no provision, whether by statute or secondary legislation, for the repayment to a third party of money received in satisfaction of a fine or order for compensation or costs. Reference was made to Section 142 of the Magistrates Court Act 1980. That section gives a magistrates' court power to reopen cases in order to rectify mistakes. Sub-section (1) provides:-
"(1) A magistrates' court may vary or rescind a sentence or other order imposed or made by it when dealing with an offender if it appears to the court to be in the interests of justice to do so; and it is hereby declared that this power extends to replacing a sentence or order which for any reason appears to be invalid by another which the court has power to impose or make."
Sub-section (1A) sets out a number of exceptions and sub-section (2), again subject to a number of exceptions, provides:-
"(2) Where a person is convicted by a magistrates' court and it subsequently appears to the court that it would be in the interests of justice that the case should be heard again by different justices, the court may so direct".
Plainly, these provisions offer no assistance in the present case. Had the Justices appreciated that they were in error they could have rescinded the committal order and made a different order; or they could have ordered a rehearing before a differently constituted bench. The issue therefore turns on whether this Court should provide a direct or indirect means of enforcing such right as Mrs Cantor may have in private law to restitution.
By re-amendment dated 28th November 1997, the Applicant seeks further or in the alternative to mandamus three Declarations in the following terms:-
"(i) A declaration that the sum of £30,000, transferred into the bank account of the Clerk to the Barnet Justices on 9th December 1996, by Messrs Rowe and Cohen, solicitors, on the instructions of Mrs Eve Cantor, was so transferred in consequence of a committal order which was itself unlawful.
(ii) A declaration that in the circumstances, the credit received by the Clerk to the Barnet Justices on 9th December represents trust monies, held by him for the benefit of Mrs Eve Cantor.
(iii) A declaration that it is not permissible for Magistrates enquiring into an offender's means to take into account the fact that he is one of a number of beneficiaries of a discretionary trust."
In my judgment (ii) and (iii) do not greatly assist the Applicant for reasons already expressed. As to (ii) the Clerk does not hold an identifiable or traceable fund in circumstances where the law imposes a liability to account. As to (iii) the answer is that in this case the Court should not have taken into account the capital or hope of future payments of income, but could take account of past payments. As to (i), it has been stated that the evidence of Miss Evans and Mrs Cantor made it clear that the money was deposited and paid in order to avoid the Applicant being committed to prison. The committal order was unlawful. The Court would be minded to make a Declaration subject to re-drafting it to read in the last line: "Transferred in consequence of an unlawful committal order".
In my judgment, the Court, even if it felt able to do so, should not give effect to a private claim for restitution, however meritorious, when the cause of action is other than obvious and certain. The Court would, however, be minded to grant a Declaration in the form of (i) above as amended.
The order of 2nd September 1996 will accordingly be quashed, together with the committal order of 9th December 1996. There will be no order in respect of the £30,000, but the Court will grant a Declaration in the following terms:-
"That the sum of £30,000 transferred into the bank account of the Clerk to the Barnet Justices on 9th December 1996 by Messrs Rowe and Cohen, Solicitors, on the instructions of Mrs Eve Cantor was so transferred in consequence of an unlawful committal order".
Mrs Cantor was most anxious that her son should not be committed to prison. She placed £30,000 in the client account of her solicitor with instructions that it was to be paid to Barnet Magistrates' Court if that became necessary to prevent his committal. In the event, the sum could not be paid to the Court, in a manner acceptable to the Court, until after he had been committed. Payment secured his release. There is no affidavit from the justices or from their clerk dealing with the precise sequence of events but it appears from the affidavit of Miss Evans and her faxed letter of 9 December 1996 that, upon receipt, the Court was aware of the source of the £30,000 and the circumstances in which it was paid.
The committal to prison was unlawful for the reasons given by Garland J and is quashed. I am not surprised that Mrs Cantor wants her money back. Little, if anything, can be said in favour of the applicant having regard to his previous lack of co-operation with the Court. If the money were to be repaid to Mrs Cantor, the applicant faces the possibility of a further committal in that he is liable to committal upon a procedure properly followed. Mrs Cantor's position is however understandable. She paid the money only because of the order and the order was unlawful.
The Court has power to require a public body to perform its duty by an order of mandamus. The existence of a duty to Mrs Cantor with respect to the money and the extent of that duty, if it exists, is far from clear. The duty does not obviously extend to require repayment to a third party of money received by the Court in consequence of an unlawful order. The position is not so plain as to permit the Court to make an order of mandamus in this case. There is no claim for damages.
There remains the possibility of a declaration. Bearing in mind the Magistrates' Court's knowledge of the circumstances, I have considered whether it could be declared that the Court ought not to have received the money from Mrs Cantor. However, it was received consequent upon an apparently valid order of the Court made following a valid money order. Such a declaration would impute to court staff a duty to consider the lawfulness of orders made and would not be appropriate in the present case.
Whether the money should be retained by the Court depends upon the resolution of the difficult questions identified by Garland J by reference to Lord Goff's speeches in the Woolwich Building Society case and in Westdeutsche Landesbank Girozentrale. Lord Bridge considered a situation with some similarities in R v. Tower Hamlets LBC ex p Chetnik Developments Ltd [1988] AC 858 at 876 and 877. It would be inappropriate to resolve the question upon the present application. The most which can properly be declared is that proposed by Garland J.
I reach that conclusion with some reluctance because Mrs Cantor should not have been put by the Court in a position of parting with a substantial sum of money to obtain her son's release. Permitting the Court or the Crown Prosecution Service to retain the money may be an encouragement to unlawful committals. Neither the justices' clerk nor the Crown Prosecution Service have shown any appetite for retaining money paid pursuant to an unlawful order but the £30,000 is at present to be regarded as public money and the justices, understandably would, before releasing the money, require a plain statement from the Court that it is lawful to do so.
Nothing I have said casts doubt upon the extent of the justices' power to commit in an appropriate case. The statutory procedure must be followed however and that includes an inquiry into the means of the defendant. The requirement to pay £30,000 by 9 December 1996 was plainly based upon a misapprehension of the applicant's financial position.
LORD JUSTICE PILL: The judgment is given in accordance with the draft handed down. Mr McGrail?
MR MCGRAIL: My Lord, I recall mentioning on the last occasion when this matter was before the Court that I felt, to some extent, inhibited in applying for a Defendant's Costs Order. The reason for that, I regret, was that I felt that the Magistrates were simply enforcing a money order. However, having looked at the Prosecution of Offences Act and section 16(5)(a), it would appear that my diffidence was displaced, this being a criminal causal matter my duty to the legal aid fund, as I recognised on the first time I troubled your Lordships, requires the opening of that issue once more.
LORD JUSTICE PILL: You are legally aided?
MR MCGRAIL: I am.
LORD JUSTICE PILL: It is one fund to another in that case, is it not?
MR MCGRAIL: I shall sit down immediately.
LORD JUSTICE PILL: No, it is an interesting point because the Legal Aid Fund has a distinct interest and the application is also sometimes made on the basis that costs have been incurred which are not covered by legal aid, but you are not putting it on that basis, are you?
MR MCGRAIL: Those instructing me do not appear today. There has been correspondence. It would be best, I think, if I stick to the letter of the law relying upon the fact that this is a criminal causal matter and ask for a Defendant's Costs Order.
LORD JUSTICE PILL: Can you help as to what that achieves? You do not know if it achieves any advantage for your client: either your professional client or your lay client?
MR MCGRAIL: I am assured that it makes no difference, as far as those who instruct me: my professional client. As far as my lay client is concerned, he has no money. He has paid nothing out and, as I suggested hastily a little while ago, if the Court takes the view that it would simply involve the additional, however many, pounds transmitting money from one pocket to another----
LORD JUSTICE PILL: That involves costs to the public purse in itself.
MR MCGRAIL: Of course it does, yes.
LORD JUSTICE PILL: It is your right to make the application, Mr McGrail, but there will be no order for costs save that you will have a legal aid taxation direction. We are grateful for the assistance you have given the Court in this case.
MR MCGRAIL: Such as it has been.