Private Prosecutors’ Costs, Candour and Engagement with State Authorities:
Commentary on Taktouk v Benherst Finance Ltd & Anor, R (on the application of) [2025] EWCA Crim 1473

1. Introduction

This judgment of the Court of Appeal (Criminal Division) in Taktouk v Benherst Finance Ltd & Anor concerns an application by private prosecutors for their costs of resisting an appeal to be paid out of central funds under section 17(1) of the Prosecution of Offences Act 1985 (“POA 1985”).

The underlying criminal proceedings were the product of a private prosecution for fraud offences brought by two corporate entities, Benherst Finance Limited and Chestone Industry Holding, against the appellant. Following conviction, confiscation proceedings resulted in a confiscation order. The appellant’s appeal against that confiscation order was subsequently allowed in an earlier judgment of the Court of Appeal, reported at [2025] EWCA Crim 71 (the “Appeal Judgment”), on the basis of fresh evidence which undermined the original assessment of the available amount.

The present decision does not revisit liability or confiscation as such. Instead, it addresses a distinct and increasingly important issue: under what conditions, and to what extent, a private prosecutor is entitled to recover its costs from public funds for appellate proceedings, and what standards of candour, procedural compliance and engagement with state prosecuting authorities are required.

During the course of the costs application:

• The Court had the benefit of a major contemporaneous authority, R v BDI and others [2025] EWCA Crim 1289 (“BDI”), which synthesised the law on private prosecutors’ costs under s.17 POA 1985.
• The Lord Chancellor intervened to make submissions, reflecting systemic concern about deficient applications by private prosecutors for payments from central funds.
• Evidence emerged concerning serious procedural defects in the costs application itself, including significant non-compliance with the Criminal Procedure Rules and a misstatement of the law on costs recovery.

The Court’s response is robust. It upholds the core principles articulated in BDI, develops them in the specific context of confiscation appeals, and ultimately allows recovery of some costs but imposes a 50% reduction under section 17(2A) POA 1985. In doing so, it articulates a clear set of expectations for private prosecutors seeking to access public funding via central funds.

The core precedent emerging from the case can be put simply: Private prosecutors who fail to comply with Criminal Procedure Rules, who misstate the law, who do not engage with public prosecuting authorities, and who do not test the legal services market do so at substantial risk that their costs from central funds will be heavily reduced or refused.

2. Summary of the Judgment

2.1 The application

The private prosecutors applied, in writing on 4 February 2025, for an order under s.17(1) POA 1985 that their costs of resisting the appellant’s successful appeal be paid from central funds. The application:

• Set out the relevant rules and practice directions in a cursory way.
• Included the following contention about the exercise of the court’s discretion:

  “Although whether to make an order is discretionary, the discretion should be exercised to award the Prosecutors their costs, unless they have acted improperly or are guilty of misconduct.”

• Accepted that there had been an “error” in disclosure – namely, a failure to disclose certain intelligence reports which were held to be disclosable in the earlier Appeal Judgment – but argued that this fell far short of “misconduct” and therefore did not justify any refusal of costs.
• Contained almost no information about:
  • Any attempts to secure a public prosecution by the police, CPS or SFO;
  • How the private prosecutors’ law firm (Edmonds Marshall McMahon – “EMM”) or counsel had been selected; or
  • Whether any tendering or market testing had been undertaken.
• Was accompanied by a Memorandum of Costs which was sparse, did not comply with Criminal Procedure Rule 45.4(5), and gave virtually no breakdown of the large sums claimed.

In light of the scale of the sums sought and the deficiencies in the application, the Court:

• Invited the Lord Chancellor to intervene.
• Directed further written submissions from the prosecutors.
• Required further supporting information, including time records and explanatory evidence.

Only after this did the prosecutors file detailed logs of hours worked and a witness statement from the prosecuting solicitor (Ms Kate McMahon), explaining:

• How EMM had come to be instructed (following a recommendation from Swiss lawyers; no tendering process; engagement starting in 2017 for investigatory work before any prosecution decision).
• That Treasury Counsel advised in November 2018 that a prosecution was appropriate under both limbs of the CPS Full Code Test.
• That EMM did not attempt to involve CPS or any public authority in investigating or prosecuting the case until after the appeal in February 2025.
• That their hourly rates were, in Ms McMahon’s view, below what other specialist firms would likely have charged.

2.2 The Lord Chancellor’s concerns

The Lord Chancellor’s submissions were striking. Her counsel informed the Court that:

• In this prosecution, the private prosecutors had already obtained four previous s.17 costs orders totalling £3,847,285.38, on the basis of applications the LC had not seen.
• The quality and accuracy of the present application heightened a systemic concern that judges might be making substantial payments out of central funds “based on partial or incomplete explanations of the law”.
• The statement of law in the application (that costs should be awarded unless there was misconduct) was wrong, and plainly inconsistent with the established principle (reaffirmed in TM Eye and BDI) that the court may reduce or refuse costs even without misconduct.
• The Court should either:
  • Decline to make any order under CrimPR 45.4(6)(c) because of the inadequate information supplied; or
  • Use s.17(2A) POA 1985 to reduce the amount payable (for example by capping at CPS-equivalent rates).

2.3 Interaction with BDI

The Court waited for the handing down of R v BDI and others before finalising its decision because BDI addressed overlapping issues about private prosecutors’ costs. It then:

• Confirmed that it was bound by the legal analysis in BDI and would “follow it”.
• Noted that BDI had drawn together the legislative framework, the Criminal Procedure Rules and Practice Directions, and earlier Court of Appeal authorities, distilling a set of principles at [75]–[90].
• Quoted, in particular, the passage at [82] of BDI (itself grounded in TM Eye), which explains that:
  • The court must first decide whether to make any order under s.17(1) at all;
  • If it does, it must identify the sum “reasonably sufficient to compensate” the private prosecutor for “expenses properly incurred” (the “reasonably sufficient sum”); and
  • By virtue of s.17(2A), the court may then award less than that sum in an appropriate case – even where there has been no misconduct.

After BDI, the Court also invited and received further submissions from both the prosecutors and the Lord Chancellor.

2.4 Core findings

The Court’s key conclusions can be summarised as follows.

1. Defective application and non-compliance with CrimPR 45.4
   The initial costs application was gravely inadequate. The Memorandum of Costs was described as showing “an unacceptable attitude to the Rules, to public funds, and to the court” (para 30). There was a wholesale failure to comply with CrimPR 45.4(5), which requires:
   • a summary of items of work done;
   • a statement of dates, time spent and sums claimed; and
   • details of disbursements.
   The Court stressed that such applications are effectively ex parte – the Lord Chancellor does not ordinarily see them, and defendants have limited interest once acquitted or not liable for costs – so there is a heightened duty of candour and completeness.
2. Misstatement of the law on s.17(1) and s.17(2A)
   The prosecutors’ assertion that costs should be awarded unless there had been “improper” or “misconduct” was simply wrong in law, particularly in light of TM Eye (2021) and BDI. The Court expressed concern that this erroneous formulation might have been used in previous applications, potentially misleading busy Crown Court judges. Misstatements of this kind were held to be a proper basis for exercising the s.17(2A) power to reduce costs (para 34).
3. Disclosure error: non-disclosure of intelligence reports
   The Court reaffirmed its earlier finding (in the Appeal Judgment) that intelligence reports about the appellant’s wealth were disclosable and had been wrongly withheld (they were described as “Clearly Not Disclosable” on the MG6C). Although that disclosure failure alone had not led to the quashing of the confiscation order, it was “a significant factor” weighing against full costs recovery (para 52(ii)).
4. Failure to engage the CPS or other public prosecutors
   The prosecutors never offered the case to the CPS, SFO, or police at any time prior to the successful appeal in 2025, even after:
   • the investigation was largely complete by November 2018; and
   • confiscation proceedings commenced after conviction.
   The Court held that:
   • Where a private prosecutor does not give state authorities an appropriate opportunity to investigate and/or prosecute, it proceeds “at risk” as to its ability to recover costs from central funds (paras 36–41).
   • This risk was already clear from Zinga and related authorities and was “established in terms” by BDI (para 39).
   • After conviction, especially in complex cases, there is a further duty to consider whether the CPS should take over confiscation proceedings, given the existence of specialised CPS confiscation teams (para 40).
5. Failure to test the market / tender for legal services
   EMM and counsel were chosen without any competitive tendering or market testing. The Court, drawing on Leggatt J’s civil costs principles and reaffirming Zinga and BDI, held that:
   • Where private prosecutors seek to recover fees from public funds, they should be able to demonstrate that they took reasonable steps to obtain the best value, for example by inviting quotes or conducting a “beauty parade”.
   • The key standard is not what it was in the prosecutor’s best interests to spend, but “the lowest amount which it could reasonably have been expected to spend in order to have its case conducted and presented proficiently” (para 43).
6. No direct budgetary link, but continued emphasis on public funds
   The Court accepted the prosecutors’ correction of one aspect of BDI: there is no simple “pound-for-pound” link between s.17 costs orders and the CPS/police budgets (paras 20–21, 47). However, that did not undermine the underlying principle that public money must be managed with care and that private prosecutors cannot assume a right to full commercial rates from the public purse.
7. Outcome: costs allowed but reduced by 50% under s.17(2A)
   The Court considered that it would have been open to it simply to refuse any order under CrimPR 45.4(6)(c) due to the defective application. Instead, as a matter of “generosity” in light of the evolving guidance in BDI, it adopted a two-stage approach:
   1. It directed the determining officer to assess the “reasonably sufficient sum” to compensate for expenses properly incurred in the appeal (paras 50–51).
   2. It then ordered that the recoverable sum be reduced by 50% under s.17(2A), to reflect:
      • the defective application and misstatement of the law;
      • the disclosure failure in relation to the intelligence reports;
      • the failure to involve the CPS in either the prosecution or the confiscation proceedings; and
      • the failure to test the market when appointing the legal team for the confiscation stage (para 52).
   The Court deliberately chose a percentage discount rather than capping at CPS rates, recognising the practical difficulties in identifying equivalent public-sector rates for all categories of work (para 53).

3. Precedents and Authorities Considered

3.1 The statutory and procedural framework

The judgment sits squarely within the framework of:

• Section 17 POA 1985, which empowers a court to order that a prosecutor’s “expenses properly incurred” be paid out of central funds where the accused is convicted. Section 17(1) deals with the basic entitlement and the “reasonably sufficient” standard; s.17(2A) empowers the court to award less than the full amount in appropriate cases.
• Criminal Procedure Rule 45.4, which sets out information that must be supplied by a prosecutor seeking such an order. At the time of this application, it required:
  • (5)(a) a summary of work done;
  • (5)(b) dates, time taken, and sums claimed for each item;
  • (5)(c) full details of disbursements; and
  • (6)(c) (after amendment post–TM Eye): an express power for the court to decline to make an order if the applicant fails to provide sufficient information for the court properly to exercise its discretion.
• The Costs Practice Direction, which supplements CrimPR Part 45 and reinforces the duties of candour and detail in ex parte costs applications.

3.2 R (TM Eye Ltd) v Southampton Crown Court [2022] 1 Cr App R 6

TM Eye (decided in 2021) is foundational. The Court in the present case relies on TM Eye (as endorsed in BDI) for the proposition that:

• The decision under s.17 proceeds in three stages:
  1. Whether to make any s.17 order at all.
  2. If yes, assessing the “reasonably sufficient sum” to compensate for properly incurred expenses.
  3. Deciding whether to pay the whole of that sum or a reduced amount under s.17(2A).
• No threshold of “misconduct” is required before exercising the s.17(2A) discretion; the court may reduce costs in the interests of fairness and proper stewardship of public funds even in the absence of impropriety.

The significance for Taktouk is that any submission implying an “entitlement” to full costs absent misconduct is legally untenable. The prosecutors’ approach was therefore not merely incomplete but erroneous.

3.3 R v BDI and others [2025] EWCA Crim 1289

BDI operates as the principal modern synthesis of the law on private prosecutors’ costs. Although the Court in Taktouk does not restate BDI’s principles in full, it draws from them several key propositions:

• The “reasonably sufficient sum” and s.17(2A)
  At [82], BDI confirms the three-stage test (drawn from TM Eye) and emphasises that the court has a continuing discretion to reduce the sum payable even without misconduct.
• Managing public expenditure
  At [79], BDI suggested that if central funds pay more than would have been spent had the state prosecuted, this may reduce funds available for other cases. In Taktouk, the Court accepts that the specifics of government budgeting may not be as linear as this implies, but endorses the broader principle that public resources are finite and must be used with care (para 47).
• Duties regarding state involvement and cost levels
  At [89], [96] and [98], BDI stresses that:
  • If the private prosecutor fails to give police/CPS an appropriate opportunity to investigate/prosecute, it may be just to limit recoverable costs to what the prosecution would have cost the state.
  • The onus is on the private prosecutor to show, on the balance of probabilities, that the police/CPS could not or would not have taken the case if properly approached at an appropriate stage (para 27 of Taktouk, quoting BDI at [98]).
• Relevance of market-testing and the Leggatt J principle
  BDI adopts Leggatt J’s statement (discussed below) that the recoverable amount should be the lowest sum reasonably required for proficient representation, not simply what the prosecutor chose to spend. In Taktouk, this principle underpins the Court’s insistence on tendering or “beauty parades” as best practice.

The Court in Taktouk explicitly states that it is bound by and follows BDI (para 3). The present judgment is best read as an application and refinement of BDI in a specific factual setting (a high-value private fraud prosecution leading to confiscation proceedings and an appeal).

3.4 R (Virgin Media Ltd) v Zinga [2014] EWCA Crim 1823

Zinga is an earlier leading authority on costs in private prosecutions. It emphasised, inter alia:

• The need to consider whether the state might have prosecuted, and if so, at what approximate cost.
• The importance of distinguishing between:
  • the private prosecutor’s legitimate choice of legal team; and
  • the extent to which the public should be required to underwrite that choice at commercial rates.
• The relevance of tendering or testing the market for legal services where recovery from central funds is sought.

Taktouk itself notes that the emphasis in BDI on engaging with state authorities and testing the market was already present in Zinga. The judgment treats BDI not as a break but as a consolidation of existing law; “nothing in it should take an experienced private prosecutor by surprise” (para 29).

3.5 Leggatt J’s proportionality principle and Simpson’s Motor Sales

The Court quotes and applies two additional cost-related principles:

• Leggatt J’s “lowest reasonable spend” test
  Cited (via BDI at [43] and [87]) is Leggatt J’s statement that:

  “What is reasonable and proportionate in that context must be judged objectively. The touchstone is not the amount of costs which it was in a party's best interests to incur but the lowest amount which it could reasonably have been expected to spend in order to have its case conducted and presented proficiently, having regard to all the relevant circumstances. Expenditure over and above this level should be for a party's own account and not recoverable from the other party.”

  This principle, though formulated in civil litigation, is held to be “relevant to an application under s.17” (para 43–44).
• Simpson’s Motor Sales (London) Ltd v Hendon Corporation [1965] 1 WLR 112
  The Lord Chancellor’s submissions cite the passage from Simpson’s Motor Sales about an “hypothetical counsel”:

  “one must envisage an hypothetical counsel capable of conducting the particular case effectively but unable or unwilling to insist on the particularly high fee sometimes demanded by counsel of pre-eminent reputation. Then one must estimate what fee this hypothetical character would be content to take on the brief.”

  The Court accepts this as the correct test for the reasonableness of counsel’s fees when assessing claims against public funds (para 26).

The combined effect is that, for private prosecutors, recoverable costs under s.17 should not reflect premium branding or untested commercial choices, but what a hypothetical competent legal team would reasonably charge for proficient work, judged objectively and evidenced by real efforts to test the market.

4. Legal Reasoning and Its Application in Taktouk

4.1 Ex parte nature of applications and duty of candour

A central theme is that applications under s.17(1) for payments from central funds are, in practical terms, ex parte:

• The Lord Chancellor does not automatically see or respond to such applications.
• Defendants are usually not directly concerned with prosecutors’ access to central funds once any personal costs order against them is off the table.

In this context, the Court insists that:

“Any person making an ex parte application for public funds has an obligation to be candid with the court and to supply it with the information necessary to make an appropriate order. This should be done when the application is made and without requiring the court to give directions or make requests.” (para 29)

The Court is plainly concerned that the prosecutors’ initial approach — a sparse memorandum claiming a very large sum with almost no breakdown — amounted to an attempt to bypass this duty. It specifically notes how the deficient presentation forced the Court to:

• Convene a three-judge court;
• Dedicate a hearing day and substantial reading time; and
• Divert scarce judicial resources from other pressing criminal work.

This is not mere inconvenience; it justifies the invocation of CrimPR 45.4(6)(c) and/or s.17(2A) as sanctions. The judgment sends a clear message: future non-compliance will likely result in outright refusal of costs orders without further indulgence (para 49).

4.2 CrimPR 45.4(5) and 45.4(6)(c): mandatory detail and sanctions

CrimPR 45.4(5) requires, as a matter of rule, that a costs application include:

• a summary of work done by solicitors (45.4(5)(a));
• a statement of dates, time spent, and sums claimed (45.4(5)(b)); and
• details of disbursements and their circumstances (45.4(5)(c)).

The prosecutors initially failed to supply any compliant statement. The later production of a detailed “Solicitors’ Worklog” (159 items across seven pages) powerfully illustrated how seriously inadequate the original Memorandum had been. The Court pointedly describes the omission as more than an “oversight”:

• EMM describes itself as a specialist private prosecution firm with high expertise; that position makes non-compliance “very difficult to understand” (para 30).
• Time-recording systems make compliance straightforward; the omission therefore appears not accidental but symptomatic of “an unacceptable attitude to the Rules, to public funds, and to the court” (para 30).

CrimPR 45.4(6)(c), added after TM Eye, expressly authorises the court to decline to make a prosecutor’s costs order if insufficient information is supplied. Taktouk underscores that this is not a dead letter:

“Future non-compliance with CrimPR 45.4(6)(c) may well result in the court simply declining to make any order, and not expending any further public and judicial resources on prosecutors who cannot manage to present a bill of costs properly.” (para 49)

The Court nevertheless stops short of such a draconian step in this particular case, partly because it sees value in using this judgment (and BDI) to set future standards rather than punishing retrospectively.

4.3 Misstatement of the law on s.17(1) and s.17(2A)

The prosecutors’ application advanced an incorrect legal test: that the discretion under s.17(1) should usually be exercised in favour of costs unless the prosecutor has acted improperly or is guilty of misconduct. The Court, relying on TM Eye and BDI, rejects this:

• The existence of s.17(2A) expressly contemplates reductions in the recoverable amount for reasons falling short of misconduct.
• The amendment to CrimPR 45.4(6)(c) and the post–TM Eye practice direction changes show a deliberate policy that courts should actively scrutinise private prosecutors’ costs.

The misstatement is treated as serious not because it misled this Court (which “was actually aware of the correct position” – para 34), but because:

• It may have misled trial judges in earlier costs orders; and
• It evinces a broader lack of candour and rigour in costs applications.

This defect, considered together with non-compliance with CrimPR 45.4, contributes to the 50% reduction.

4.4 Disclosure failings as a factor in costs

The Court revisits its earlier conclusion in the Appeal Judgment that:

• Intelligence reports about the appellant’s wealth were disclosable material;
• They were wrongly marked “Clearly Not Disclosable” on the MG6C disclosure schedule; and
• They bore on the prosecution’s “hidden assets” case and could “might or might not” have led to a different outcome in the confiscation hearing (para 35, quoting para 38 of the Appeal Judgment).

The Court accepts that this nondisclosure did not by itself justify quashing the confiscation order, but finds it perfectly capable of justifying a reduction in recoverable costs under s.17(2A) (para 35, 52(ii)).

This is an important doctrinal development: procedural irregularities (short of bad faith) – including disclosure errors – may legitimately be reflected in reduced remuneration from central funds even if they do not vitiate the conviction or order under appeal.

4.5 Failure to involve CPS / state prosecutors – “proceeding at risk”

A major issue is the prosecutors’ admitted failure to refer the case to CPS, SFO or the police at any meaningful stage:

• They did not approach any state authority in 2018 when the investigation had been largely completed and Treasury Counsel had advised that the CPS Full Code Test was met.
• They did not approach the CPS after conviction, when confiscation proceedings were commenced.
• Only after the appeal succeeded in February 2025 did they offer the case to public authorities.

The Court accepts that:

• In light of resource constraints and enforcement strategies, there was a real possibility that neither the police nor CPS would have taken on the case if approached (paras 11, 36).
• Nonetheless, assumptions made years later by the private prosecutor cannot be equated with an actual CPS/SFO decision at the time (para 41).

Applying BDI, the Court holds:

• The prosecutor bears the onus of showing that the police/CPS “could not or would not” undertake the case if given an appropriate opportunity at an appropriate stage (para 27).
• In the present case, the evidence does not discharge that burden: it shows that the CPS might not have prosecuted, but does not establish that they would not have done so (para 28).
• Accordingly, the prosecutor having chosen not even to try to engage the state, “it does so at risk as to its ability to recover costs under section 17(1)” (para 39).

This is sharpened further in relation to confiscation:

• Confiscation is a specialised area in which the CPS has dedicated teams.
• It is common for a different legal team to conduct confiscation from that which conducted the trial (para 40).
• In these proceedings, different counsel were indeed instructed by EMM for the confiscation stage – a natural point at which the CPS should have been invited to take over (para 40).

The Court thus treats the failure to engage the CPS both at the charging stage and at the confiscation stage as a material ground for reducing costs under s.17(2A) (para 52(i)(a), (iii)).

4.6 Failure to test the market and the requirement of objective reasonableness

Closely linked is the lack of any tendering or competition in selecting EMM and counsel. Ms McMahon argued that:

• At the time of instruction (2017), the market for specialist private prosecution firms was limited.
• EMM’s rates were, in her belief, lower than those of comparable firms.

The Lord Chancellor accepted, for these specific proceedings only, that the failure to tender in 2017 should not attract adverse comment, given the immature market at that time (para 25(b)). However:

• The Court rejected the idea that this concession should extend to later stages (e.g. confiscation) or other cases, especially as the market has since “substantially matured” (para 25(b), 40–42).
• More fundamentally, the Court applied Leggatt J’s “lowest reasonable spend” principle and held that:
  • Choices about legal representation must be judged objectively, by reference to what is reasonably required for proficient conduct of the case, not what is optimal from the private prosecutor’s perspective (para 43).
  • Market testing (through tenders or “beauty parades”) is a key way of evidencing that the chosen team meets that standard and that rates are not inflated beyond what public funds should bear (para 44).

This principle underpins one of the grounds for the 50% reduction (para 52(iv)). It is also a clear prospective warning: failure to test the market for legal services will increasingly place private prosecutors at risk of reduced recoverability.

4.7 Approach to remedy and the 50% reduction

Finally, the Court’s choice of remedy is significant. It faced three main options:

1. Decline any order, applying CrimPR 45.4(6)(c), on the basis of defective information and misstatement of the law (para 48).
2. Cap recoverable costs at public-sector (CPS) rates, as the Lord Chancellor invited (para 19, 25(a), 27).
3. Assess the reasonably sufficient sum, then apply a discretionary discount under s.17(2A).

The Court chose the third course:

• It directed the determining officer to assess, in the ordinary way, the “reasonably sufficient sum” to compensate for work properly incurred in resisting the appeal, emphasising that:
  • most work in a fresh evidence appeal should fall on the appellant’s team;
  • the prosecution had the advantage of continuity of leading counsel from the confiscation hearing;
  • items claimed should be scrutinised carefully for duplication or unnecessary work (para 50).
• It then held that it was “inappropriate for the prosecution to recover this sum in full” and ordered a 50% reduction, justified by the four clusters of concerns set out at para 52.
• It declined to cap at CPS rates, recognising that:
  • CPS rates are not readily ascertainable for all categories of work;
  • They may not exist in any simple sense for investigative work;
  • They are easier to identify for counsel’s brief fees but less so for work by in-house CPS lawyers and paralegals (para 53).

The 50% figure is not derived from a formula; it is a broad-brush but deliberate signal that failures across disclosure, engagement with state prosecutors, and compliance with CrimPR will have material financial consequences, even in cases where the prosecution ultimately maintains a measure of success or good faith.

5. Impact and Significance

5.1 For private prosecutors and specialist law firms

For corporate victims, specialist private prosecution firms, and their counsel, Taktouk is a warning shot with immediate operational consequences:

• Costs applications must be well-prepared from the outset.
  Bare memoranda with headline totals, minimal breakdown, and generic references to “attending hearing” will not suffice. Firms must:
  • Maintain contemporaneous, detailed time records;
  • Provide CrimPR-compliant breakdowns with the original application; and
  • Explain investigative vs prosecutorial tasks and staffing levels.
• Law must be accurately stated.
  Any suggestion of a quasi-automatic entitlement to full commercial rates absent “misconduct” is unacceptable. Firms must be conversant with the structure of s.17(1) and (2A) and with TM Eye, Zinga and BDI.
• Referring cases to CPS / SFO is no longer optional if costs from central funds are envisaged.
  Failing to offer the case to state authorities at key stages (charging, post-conviction, confiscation) will be treated as proceeding at risk. The burden of showing that CPS “could not or would not” prosecute is a real one.
• Market testing / tendering is expected practice.
  While not presented as an absolute legal precondition, Taktouk makes clear that:
  • Where no effort is made to compare providers or negotiate on rates, claims to recover commercial fees from central funds will be vulnerable to substantial reductions.
  • This is particularly true for cases commenced in “the last few years”, where the private prosecution market has matured and competition has increased.
• Disclosure failures have costs consequences.
  Even if such failures do not overturn convictions or orders, they can and will be reflected in reduced costs recovery.

Taken together, the effect is to reposition private prosecutors as entities which, when seeking public money, must behave more like public bodies in terms of transparency, diligence, and cost control.

5.2 For judges and determining officers

Taktouk encourages a more assertive judicial stance on s.17 applications:

• Trial and appellate judges are encouraged to:
  • Insist on full compliance with CrimPR 45.4(5);
  • Refuse to make orders on the papers where information is sparse or the law appears misstated; and
  • Consider using CrimPR 45.4(6)(c) to decline orders outright where defects are serious.
• Determining officers are reminded that:
  • The “reasonably sufficient sum” must be approached with scepticism where there is duplication of work or over-staffing;
  • In private prosecutions, it may be necessary to distinguish between work that would ordinarily be done by:
    • police investigators;
    • CPS lawyers and paralegals; and
    • counsel under publicly funded schemes.

The decision also legitimises – indeed, invites – the Lord Chancellor’s continued, targeted intervention in cases where systemic issues are suspected (para 15–16).

5.3 For public policy and the “retreat of the state” from fraud prosecutions

The prosecutors argued that the state has, in practical terms, retreated from the investigation and prosecution of complex fraud, such that:

• Victims must turn to private prosecutions if they are to see any criminal process at all;
• The costs of private prosecutions, even at commercial rates, pale in comparison to the public expenditure that would otherwise be required; and
• Restricting costs recovery from central funds is unlikely to “reverse” the state’s resource allocation decisions and may simply discourage victim-driven enforcement.

The Court acknowledges the factual basis of some of this argument (para 20–22, 47). However, it firmly rejects the conclusion that these macro-policy considerations entitle private prosecutors to full commercial rate recovery:

• The absence of a direct budgetary linkage between s.17 orders and CPS budgets does not affect the principle that public money must be used wisely (para 47).
• There remains a public interest in ensuring that decisions about prosecution – especially in relation to confiscation, which affects the balance between public recovery and victim compensation – are taken by state actors capable of disinterested judgment (para 38–39).

The judgment therefore implicitly recognises a tension: while private prosecutions can fill enforcement gaps, they must not become a vehicle for uncapped cost shifting to the public purse, nor a means by which victims or their lawyers acquire disproportionate financial leverage over criminal proceedings.

5.4 For confiscation law and practice

This decision is also important in the confiscation context:

• It frames post-conviction confiscation proceedings (and related appeals) as a natural point of reconsideration of who should conduct the case:
  • Private prosecutors may be motivated by recovering specific losses or compensation;
  • The state has a broader interest in enforcing the confiscation regime and ensuring fairness and proportionality.
• The Court flags potential public interest conflicts, including:
  • Settlements with co-defendants or witnesses that lead to the withdrawal of charges deemed “no longer in the public interest” after substantial payments to the prosecutor (para 38(i));
  • Differences between private and public benefits of “general criminal conduct” confiscation findings (para 38(ii)).

While not making findings of impropriety on these examples, the Court uses them to illustrate why decisions about confiscation should, at the very least, be transparent and, where feasible, subject to state oversight.

6. Complex Concepts Explained

To make the judgment more accessible, it is helpful to clarify several key concepts.

6.1 Private prosecution

A private prosecution is a criminal prosecution brought not by the State (CPS, SFO, etc.) but by a private person or entity – often a corporate victim of crime. Private prosecutions are lawful and sometimes essential in areas such as:

• Complex fraud;
• Intellectual property offences; and
• Some specialist regulatory fields.

However, when private prosecutors seek to recover their costs from public funds, they enter a different legal terrain: their entitlement is heavily regulated by s.17 POA 1985, CrimPR Part 45 and the case law discussed in this judgment.

6.2 Central funds and s.17 POA 1985

“Central funds” is the term used for a public pot of money from which certain criminal costs are paid – for example:

• Remuneration of defence lawyers in some categories of case;
• Costs of prosecutors in private prosecutions; and
• Some other court-ordered costs where no private party is directed to pay.

Section 17(1) POA 1985 enables a court, where an accused is convicted, to order that the prosecutor’s “expenses properly incurred” be paid out of central funds. Section 17(2A) gives the court discretion to direct payment of less than the full amount that would otherwise be “reasonably sufficient to compensate” the prosecutor.

6.3 “Reasonably sufficient sum”

The “reasonably sufficient sum” is a term of art drawn from s.17(1) and TM Eye/BDI. It means:

• The amount that is objectively sufficient to compensate the prosecutor for expenses properly incurred (i.e. reasonable, necessary and proportionate for proficient conduct of the case), not necessarily the full amount actually spent.
• This is then subject to a further reduction under s.17(2A) if the court considers it just to award less.

6.4 CrimPR 45.4(5) and (6)(c)

Criminal Procedure Rule 45.4 governs applications for prosecutors’ costs from central funds. In summary:

• 45.4(5) requires detailed information:
  • What work was done, by whom;
  • On what dates, for how long;
  • At what rate; and
  • What disbursements (e.g. counsel’s fees, expert reports) were made.
• 45.4(6)(c) empowers the court to decline to make any order if the applicant fails to provide “enough information” to enable proper decision-making.

In Taktouk, these provisions form a central plank of the Court’s criticism of the prosecutors’ application.

6.5 Full Code Test

The CPS Full Code Test is the standard used by the CPS when deciding whether to prosecute. It has two stages:

1. Evidential stage: Is there a realistic prospect of conviction?
2. Public interest stage: Is it in the public interest to prosecute?

In this case, Treasury Counsel advised in November 2018 that both stages were satisfied – meaning that the CPS could properly prosecute. That in turn raised the question whether the case should have been offered to the CPS at that time (para 11, 38).

6.6 Confiscation and “hidden assets”

After conviction for certain offences, the court may make a confiscation order under the Proceeds of Crime Act 2002, stripping the defendant of the benefit of criminal conduct. Two key ideas often arise:

• Available amount: what the defendant currently has or can realise to satisfy the order.
• Hidden assets: where the prosecution contends that the defendant has resources concealed or not readily apparent, justifying higher confiscation amounts.

The intelligence reports in this case related to efforts to identify hidden assets. They suggested that extensive attempts had been made to locate significant wealth without success, thereby potentially undermining the prosecution’s hidden-assets case. That made them disclosable (para 35).

6.7 MG6C disclosure schedule

“MG6C” is a standard prosecution form listing unused material and indicating, for each item, whether it is disclosable or not and why. Labelling disclosable material as “Clearly Not Disclosable” (as occurred here) is a serious error with potential consequences for both the fairness of the trial and, as this case shows, the recovery of costs.

7. Conclusion

Taktouk v Benherst Finance Ltd & Anor is a significant addition to the jurisprudence on private prosecutions and their access to public funding. In doctrinal terms, it does not create new law so much as:

• Applying and reinforcing the principles crystallised in BDI,
• Grounding them in the statutory structure of s.17(1) and (2A) POA 1985,
• Operationalising CrimPR 45.4(5) and (6)(c) as real constraints rather than formalities, and
• Demonstrating that disclosure failings and process deficiencies have financial repercussions.

Its practical message, however, is powerful and forward-looking:

1. Strict compliance with procedural rules and full candour are mandatory.
   Private prosecutors seeking s.17 orders must be scrupulous in their adherence to CrimPR Part 45 and the Costs Practice Direction. Minimalist or inaccurate applications risk decisive sanctions, including refusal of any order.
2. The court’s discretion under s.17(2A) is real and will be used.
   There is no entitlement to full commercial rates. Courts may and will reduce recoverable sums for a range of reasons falling short of misconduct, including disclosure “errors”, inadequate engagement with public authorities, and failure to manage costs responsibly.
3. Engagement with CPS / SFO is an integral part of responsible private prosecution.
   Where private prosecutors do not give the state an appropriate opportunity to take over, they proceed at risk as to costs. They must be ready to prove that the state “could not or would not” have prosecuted.
4. Private prosecutors must behave like prudent stewards of public money when seeking recovery from central funds.
   This means:
   • testing the market for legal services where feasible;
   • keeping and presenting detailed, rule-compliant time and cost records; and
   • accepting that any premium choices beyond what is reasonably necessary for proficient representation will be for their own account.
5. Confiscation proceedings warrant particular scrutiny.
   The judgment highlights potential tensions between the financial interests of private prosecutors and the broader public interest in confiscation. It therefore encourages consideration of CPS takeover, especially at the confiscation stage.

Ultimately, Taktouk confirms the viability and importance of private prosecutions, particularly in complex fraud, but on a clear condition: when private actors seek to shift their costs onto the taxpayer, they must meet public-law standards of transparency, restraint and fairness. Failure to do so will no longer be cost-neutral.