R v P

JUDGMENT (As Approved by the Court)

At the conclusion of a Crown Court trial in which the defendant was acquitted by the jury, the judge made an order that the Crown Prosecution Service pay costs. It is clear that he did so because he disagreed with the decision either to mount or to continue the prosecution. The Crown Prosecution Service appeals.

The judge had given notice at the end of the trial that he had it in mind to make a costs order and he had adjourned to give the Crown Prosecution Service the opportunity to consider the position and attend to make representation. There was a hearing about four weeks later. At the conclusion of that hearing the judge announced his decision in the following terms:

"In my judgment, this case proceeded either because no thought or no proper thought was given to it and/or for reasons of political correctness and/or of fear of criticism. That is no basis upon which to proceed with a serious allegation or, indeed, any allegation of any kind of criminal conduct …

I find that the CPS has incurred costs by way of unnecessary act, the bringing of this case at all. I direct that it pays for the costs of this case in its entirety. Effectively, that means costs incurred by the defence at the Crown Court and those incurred by the defence solicitors.

The costs incurred at the Crown Court have been considered by the court staff and, in round figures, are £3,000. The solicitors' costs should be ascertained and paid so long as they are reasonable."

Subsequently, the Crown Court issued not one but two letters purporting to incorporate this order. The first directed the Crown Prosecution Service to pay £3,000 to "HMPG Woolwich Crown Court." It would appear that what was intended to be comprised there were legal aid fees payable to defence counsel which would have been paid no doubt via the Crown Court. The second letter directed the Crown Prosecution Service to pay £6,229.38 to the solicitors who had acted for the acquitted defendant under a representation order, which is to say on legal aid.

Both of those letters bore the date 13th January 2011 which was the day of the hearing and of the ruling which we have quoted. In fact at least the second letter must have been written subsequently because it is apparent from the ruling that as at 13th January the amount of the solicitors' costs was not known. It may be, however, that the letters carried the date that they did because that had been the date of the judge's ruling.

Neither order identified the statutory power under which it had been made. A subsequent written request to the Crown Court elicited the response by telephone that the order had been made under section 19A of the Prosecution of Offences Act 1985. No written document has ever identified the power.

Leaving aside orders for the payment of costs of an acquitted defendant from central funds and orders for the payment of prosecution costs, there are three separate powers which the statute provides which might be applicable in this kind of situation. It is not necessary to set out the terms of the statute in full. They amount to these:

1. Under section 19A of the Prosecution of Offences Act 1985 an order may be made against a legal representative that he pay "wasted costs". Wasted costs are costs incurred as a result of improper, unreasonable or negligent act or omission on the part of any representative or the employee of any representative. This is the power which according to the oral notification issued by the Crown Court, which was presumably on the authority of the judge, the judge was purporting to exercise. A legal representative is however fully defined in the section. It means "a person exercising a right of audience or a right to conduct litigation on behalf of a party". In the context of a criminal case, the parties are the Crown on one side and the defendant on the other. The legal representative is the advocate or litigator appearing or acting for one or other of those parties. In other words, in very simple terms this power to make wasted costs is a power exercisable against a lawyer personally.

2. Under section 19 of the same Act and Regulation 3 of the Costs in Criminal Cases (General) Regulations 1986, 1986/1335 made under that section, an order may be made that one party pay the costs of the other party to criminal proceedings. Such an order may be made when the judges is satisfied that the costs in question have been incurred by party A as a result of "an unnecessary or improper act or omission by or on behalf of" party B.

3. Under section 19B of the 1985 Act, an order may be made against a "third party" that he pay the costs incurred by any other party to the proceedings. This order can be made only when the third party has been guilty of "serious misconduct".

It can thus be seen that the conditions for the making of such orders vary, as does the person against whom the order may be made. For this reason, as well as on the ordinary principle which requires any court order to be securely anchored to the power which authorises it, it is essential that the order identify the power being invoked. The Criminal Procedure Rules 2010 expressly so provide at 76.2(4):

"If the court makes an order about costs, it must—

(a) specify who must, or must not, pay what, to whom; and

(b) identify the legislation under which the order is made, where there is a choice of powers."

This order or orders comprehensively failed to make any attempt to meet those requirements as to identifying the power. We have asked ourselves whether it is nevertheless clear which power was being exercised.

There can clearly be no question of the third power under section 19B applying. The order was made against the Crown Prosecution Service which was a party to the trial and not a third party.

If the order was of the first kind, made under section 19A, as the Crown Court, apparently on the authority of the judge, has asserted and as the reference in the two letters to "wasted costs" would appear to suggest, then such an order is simply beyond the judge's power for the very elementary reason that the Crown Prosecution Service is a party and not a legal representative acting for a party.

Other language used by the judge might suggest rather an order of the second kind, that is to say under section 19, regulation 3. This however is not the power which has expressly been invoked. It is true that an order that the Crown Prosecution Service pay the costs of defence counsel and defence solicitors might be framed in a way which qualified as a party and party order, if that second power had been invoked. On this hypothesis,...