R (Director of Public Prosecutions) v Aylesbury Crown Court & Anor

Factual and Procedural Background

This is an application by the Crown Prosecution Service (the CPS) for judicial review seeking to quash a costs order made against it by HH Judge Sheridan at the Aylesbury Crown Court on 14 September 2016. The costs order required the CPS to pay the full costs of the defence, to be taxed, under section 19 of the Prosecution of Offences Act 1985 and the Costs in Criminal Cases (General) Regulation 1986.

The case arose following the arrest of the Interested Party on suspicion of possession of indecent images of children. An expert witness instructed by the CPS examined the Interested Party's computer and reported that one indecent image was accessible. A defence expert later clarified that this image had been deleted and was not accessible. Subsequently, the CPS offered no evidence and the prosecution was discontinued.

The defence applied for costs under section 19 of the 1985 Act. The Crown Court judge found that the CPS was liable for the costs incurred due to the expert's error, treating the CPS and its expert as indivisible for this purpose, and ordered the CPS to pay the full defence costs. The CPS challenged this order by judicial review.

Legal Issues Presented

1. Whether the Crown Court judge had jurisdiction to make a costs order against the CPS for the acts or omissions of an expert witness instructed by it, where the expert was an independent third party.
2. Whether the error made by the expert witness constituted an unnecessary or improper act or omission by or on behalf of the CPS within the meaning of section 19 of the 1985 Act and the relevant Regulations.
3. Whether the costs order was lawful given the judge failed to specify the amount of costs to be paid, contrary to regulation 3(3) of the Costs in Criminal Cases (General) Regulation 1986.
4. The scope of the High Court's jurisdiction to review Crown Court decisions relating to costs orders made under section 19 of the 1985 Act.

Arguments of the Parties

Crown Prosecution Service's Arguments

• The judge erred and acted without jurisdiction in holding the CPS liable for the expert witness's actions, as the expert was an independent third party.
• There was no finding of any unnecessary or improper act or omission by the CPS or its expert; the error was at most negligent and did not meet the threshold of impropriety required by law.
• The judge failed to specify the amount of costs payable, making the costs order unlawful under the Regulations.
• The judge's approach was influenced by sympathy for the Interested Party and an inability to order costs out of central funds, which is not a lawful basis for making such an order.

Interested Party's Arguments

• The judge was entitled to treat the expert as part of the Crown for the purposes of the costs order.
• Alternatively, the CPS committed an improper act or omission by failing to inquire into the anomaly in the expert's report identifying one accessible indecent image.
• If the costs order was defective for failing to specify the amount, the matter should be remitted to the Crown Court for rectification.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first addressed the jurisdictional issue, confirming that judicial review is available for costs orders made by the Crown Court under section 19 of the 1985 Act if there is a jurisdictional error of sufficient gravity. The court rejected the Interested Party's preliminary objection that the High Court lacked jurisdiction because the costs order related to a trial on indictment.

On the substantive issue, the court analyzed the legal relationship between the CPS and the expert witness. It held that expert witnesses are independent third parties with a primary duty to the court, not agents or part of the CPS. Therefore, the CPS cannot be held liable for an expert's acts or omissions under regulation 3 unless there is clear evidence of improper conduct by the CPS itself in relation to the expert.

The court distinguished the CPS from the police, which together form the indivisible Crown for costs purposes. It found no evidence that the CPS failed to supervise or investigate the expert's report in a way that would amount to an improper act or omission.

Regarding the meaning of "improper," the court adopted the test from DPP v Denning, requiring a stark and clear error that would not have occurred if the party had conducted the case properly. The court found that the expert's error—misidentifying an image as accessible—was at most negligent and not plainly improper. The judge below made no findings of fact or proper inquiry into the seriousness of the error, and his decision was influenced by sympathy for the Interested Party and the inability to order costs out of central funds, which is not a lawful basis for a costs order.

Finally, the court held that the costs order was ultra vires because the judge failed to assess and specify the amount of costs payable, contrary to regulation 3(3) and Criminal Procedure Rules 45.8. The formal procedure requires the court to identify the costs incurred and specify the amount payable in the order, which the judge did not do, instead ordering the costs to be "taxed" without his own assessment.

These cumulative errors amounted to jurisdictional errors, rendering the costs order invalid and subject to quashing by judicial review.

Holding and Implications

The court QUASHED the costs order made by the Crown Court requiring the CPS to pay the Interested Party's defence costs.

The direct effect of this decision is that the CPS is not liable for costs incurred due to the independent expert witness's error under section 19 of the 1985 Act, absent a clear finding of an improper act or omission by the CPS itself. The decision clarifies that expert witnesses are independent third parties and not to be treated as part of the Crown for costs purposes.

The court also reinforced the procedural requirement that costs orders must specify the amount payable and that failure to do so renders the order ultra vires. No new precedent beyond these points was established, and the CPS did not seek costs for bringing the judicial review, emphasizing the case's role in clarifying the law.