Costs on Acquittal

Published date01 November 1973
Date01 November 1973
AuthorRobert Thoresby
DOIhttp://doi.org/10.1111/j.1468-2230.1973.tb01393.x
PRACTICE DIRECTION
COSTS
ON
ACQUITTAL
IT
is seldom that academics comment upon practice directions, yet
the recent one in which Lord Widgery
C.J.
stated that it should
be
''
normal practice
)'
to award costs to successful defendants in
criminal cases necessitates breach of the general rule.
It
would
appear at first sight to be
a
revolutionary departure from the
position established by Lord Goddard
C.J.
in
1952
when he
directed that costs should be awarded only in
''
exceptional
cases," a principle which had been endorsed by Lord Parker
C.J.
in
1959,
although he widened the definition from
"
cases where the
prosecution could be said to be in some way at fault
)'
to
"
all
cases where the court thinks
it
right
))
to make the order
3;
but
a
longer
look
reveals that the crucial difference is in the surrounding
circumstances, for until
1972
costs were borne by local funds but
now they are paid by the central government.'
It
is not merely
as another example of the
''
nationalisation
')
of crime, however,
that the direction is important; but before the reasons for its
importance are discussed it should be noted that awards may be
made only in relation to indictable
offence^,^
although whether the
defendant is legally aided is immaterial.6
For two reasons the direction is of theoretical significance to
students of the criminal process. First, Lord Parker's approach
of
leaving it to each court to decide without guidance what is
"
right
))
has been rejected. Since it is inevitable that some principles will
be evolved to guide the exercise
of
discretion,
it
has been strongly
argued, particularly by
K.
C.
Davis in the United States of
America,' that
it
is
greatly preferable that those principles be
authoritatively stated. Lord Widgery seems to have accepted this
contention,
for
the exceptions to
"
normal practice
)'
have been
listed, although not exhaustively, in the direction itself.
I,t was issued in June
1973
"
after consultaition with
[1973] 2
All
E.R.
592.
the judges of the Queen's Bench and Family Divisions."
(1952) 36
Cr.App.R.
13.
[1959] 3
All
E.R.
471.
His characterisation of Lord Goddard's direction may
not have been strictly accurate, but as Parker
J.
he had been
a
meFber of,,the
court which issued it.
For
a
case in which the court thought it right to
award costs, see
Sansburg
[1959] 3
All
E.R.
472
(Devlin
J.).
The central fund was created by the Courts Act
1971
which took effect
on
January
1, 1972.
The law has since been consolidated by the Costs in Criminal
Cases Act
1973,
which took effect
on
July
18,
1973.
ti
See Costs in Criminal Cases Act
1973,
8s.
1
(2),
3 (1)
and
(2)
and
7
(1).
Hybrid offences are classed
as
indictahle:
s.
20
(3)
(b).
The argument that
the power
should
be exercisable in relation
to
summary offences also will
not
be pursued here. Note, however, that costs may be awarded by the Divisional
Court:
8.
5
(1)
and the House of Lords:
8.
6
(1)
on
appeals
from
Magistrates'
Courts regardless
of
the classification.
R.
V.
Arron
[1973]
2
All
E.R.
1221.
Davis,
Discretionary Jtwtice
(1969).
648

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