Factual and Procedural Background
Following a Crown Court trial where the Defendant was acquitted by the jury, the trial judge made an order requiring the Crown Prosecution Service (CPS) to pay the costs incurred. The judge indicated that this order was made due to disagreement with the decision either to initiate or continue the prosecution. The CPS appealed this costs order. The judge had initially given notice of his intention to make a costs order at the conclusion of the trial and adjourned to allow the CPS to consider the matter and make representations. Approximately four weeks later, after a hearing, the judge formally ordered the CPS to pay the defence costs in full, citing that the prosecution had proceeded without proper thought or for improper reasons such as political correctness or fear of criticism. Two subsequent letters were issued by the Crown Court purporting to incorporate the costs order, directing payments to the Crown Court and to the defence solicitors, respectively. Neither letter or order identified the statutory authority under which the costs order was made. Upon inquiry, it was orally stated that the order was made under section 19A of the Prosecution of Offences Act 1985, but no written documentation confirmed this. The CPS challenged the validity and jurisdictional basis of the costs order.
Legal Issues Presented
- Whether the Crown Court judge had jurisdiction to make a costs order against the Crown Prosecution Service under section 19A of the Prosecution of Offences Act 1985.
- If not under section 19A, whether the order could validly be made under section 19 or section 19B of the same Act.
- The proper statutory basis and procedural requirements for making a costs order against the CPS following an acquittal.
- The appropriateness and legality of making a costs order based on the judge's disagreement with the prosecution decision and the circumstances under which such an order may be justified.
Arguments of the Parties
Appellant's Arguments (Crown Prosecution Service)
- The CPS argued that the costs order was made without proper jurisdiction, particularly as the order was purportedly made under section 19A which applies only to legal representatives, not to a party such as the CPS.
- The CPS submitted that the decision to prosecute, even if unsuccessful, is a difficult and delicate judgment involving good faith and professional discretion, and that disagreement by a judge does not justify a costs penalty.
- The CPS contended that the judge's reasoning, including references to political correctness and lack of thought, was inappropriate and unsupported by the evidence.
- They highlighted procedural defects, including failure to specify the statutory power invoked, failure to quantify solicitors' costs at the time of the order, and lack of opportunity to make representations on costs.
Respondent's Arguments (Judge's Position)
- The judge considered that the prosecution was improperly brought or continued without proper thought, possibly for reasons of political correctness or fear of criticism.
- The judge regarded the costs incurred by the defence as unnecessary and directed that the CPS pay all such costs.
- The judge's order was communicated as being made under section 19A, referring to "wasted costs," suggesting a view that the costs were incurred due to improper conduct.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R (B) v Director of Public Prosecutions [2009] EWHC 106 (Admin), [2009] 1 WLR 2072 |
Distinction between the judge's test for a case to answer and the prosecutor's test for whether a conviction is more likely than not. |
Used to clarify that a judge's decision that there is a case to answer does not equate to a correct prosecution decision under the Code for Crown Prosecutors. |
| R (Oddy) v Bugbugs Ltd [2003] EWHC 2865 (Admin) |
Example of a case where a prosecution was held to be unreasonable and costs order was appropriate. |
Distinguished from the present case on facts; emphasized that the current case involved a good faith prosecution decision and legitimate difference of opinion. |
Court's Reasoning and Analysis
The Court examined the statutory powers under the Prosecution of Offences Act 1985 relevant to costs orders: section 19A (wasted costs against legal representatives), section 19 (costs orders between parties), and section 19B (costs orders against third parties for serious misconduct). The order purportedly made under section 19A was invalid because the CPS is a party to the proceedings, not a legal representative, and thus outside the scope of that section.
The Court considered whether the order could validly have been made under section 19, which permits costs orders between parties for unnecessary or improper acts or omissions. Although the order might be framed as such, it suffered from significant defects: it was not made payable to the party entitled to costs (the Defendant), the amount of solicitors’ costs was not specified or quantified at the time of the order, and the CPS was denied the opportunity to make representations on costs. These procedural failings rendered any such order defective.
The Court emphasized the importance of identifying the statutory power invoked in any costs order, as required by the Criminal Procedure Rules 2010, to ensure jurisdiction and clarity, and to provide appropriate avenues for challenge. The absence of such identification was a fundamental flaw.
On the merits, the Court acknowledged that while there were indicators that might have led the CPS to decide against prosecution, the decision to prosecute is a complex and delicate judgment involving good faith. The Court found no basis to conclude that the prosecution decision was so unreasonable as to justify a costs order. The judge’s criticisms, including references to political correctness and lack of thought, were deemed ill-conceived and inappropriate.
Accordingly, the Court allowed the CPS appeal, quashing the orders made without jurisdiction under section 19A and any order made under section 19, and granted permission for judicial review to resolve the matter definitively.
Holding and Implications
The Court's final decision was to ALLOW THE APPEAL and QUASH the costs orders made against the Crown Prosecution Service under section 19A and any order purportedly made under section 19 of the Prosecution of Offences Act 1985.
The direct effect is that the Crown Prosecution Service is not liable to pay the defence costs under the flawed orders made by the Crown Court judge. The Court emphasized the gravity and rarity of making costs orders against the Crown in such circumstances and underscored the necessity for proper statutory authority and procedural fairness. No new legal precedent was established beyond clarifying the limits of the statutory powers and procedural requirements for costs orders in criminal proceedings.