Costs Against the Prosecution for Prosecuting and the Meaning of “Improper”
How the 2014 judicial review case of Goodison greatly reduced the scope for a court to order costs against the prosecution on the basis that the case was not properly brought. First published in the Criminal Law & Justice Weekly (2014) 178 JPN 473.
Where a prosecution ends in an acquittal it is right that the defendant should be able to recover his costs and, in the vast majority of cases, the court will order that such costs be paid out of central funds under s.16 Prosecution of Offences Act 1985 ("POA"). If, however, a defendants' costs result from the "unnecessary or improper act or omission" of the prosecution, the prosecutor may be ordered to bear those costs itself. The power to order such costs is contained in reg.3(1) of the Costs in Criminal Cases (General) Regulations 1986 ("CCCGR"), made under s.19(1) POA, which provides:
"Unnecessary or improper acts and omissions
Subject to the provisions of this regulation, where at any time during criminal proceedings—(a) a magistrates' court, (b) the Crown Court, or (c) the Court of Appeal is satisfied that costs have been incurred in respect of the proceedings by one of the parties as a result of an unnecessary or improper act or omission by, or on behalf of, another party to the proceedings, the court may, after hearing the parties, order that all or part of the costs so incurred by that party shall be paid to him by the other party."
No power to punish public prosecutor for prosecuting
In R (Director of Public Prosecutions) v. Sheffield Crown Court and Goodison [2014] EWHC 2014 (Admin), the defendant, G, was prosecuted for causing death by dangerous driving. G had been driving a bus when he collided with a car resulting in the death of a pedestrian. Prior to the trial the Director of Public Prosecutions acceded to the judge's request that the decision to prosecute G, and yet not the driver of the car, be reviewed. Following the review, the DPP decided to proceed as before. G was subsequently acquitted. The judge considered that the decisions not to prosecute the car driver and to only prosecute G were improper acts or omissions and he ordered that the CPS pay G's costs from the time the decision was made not to proceed against the car driver; the balance to be paid from central funds. Upon the DPP's application for judicial review, the Divisional Court quashed the judge's order in so far as it ordered costs against the prosecution. Thomas of Cwmgiedd LCJ, quoting Lord Judge in R v. A [2012] EWCA Crim 434, said that "the decision whether to prosecute or not must always be made by the Crown Prosecution Service and not the court" and that "provided there is evidence from which the jury may properly convict, it can only be in the rarest circumstances that the prosecution may be required to justify the decision to prosecute." Furthermore, a challenge to a decision to prosecute should generally be made before the trial court and would need to establish abuse of process, including misconduct or oppression. Thomas LCJ held that: "… a judge has no jurisdiction … to use s.19 [POA] at the end of the trial as a means of impugning the prosecutorial discretion given to the DPP and other state prosecutors under our constitution by imposing costs on such prosecutors. It is outwith the power under s.19 [POA]. It is not the judge's role to discipline the DPP for what he considers was an aberrant exercise of prosecutorial discretion."
Different for private prosecutors?
Lord Thomas emphasised that what the Court said about the scope of s.19 POA only applied to the DPP and other state prosecutors as a result of "the constitutional position of such independent prosecutors". He said the jurisdictional position of private prosecutors "may" be different and cited R (Oddy) v. Bugbugs [2003] EWHC 2865, referred to in R v. P [2011] EWCA Crim 1130, as an example of costs being awarded against a private prosecutor in relation to the decision to pursue a prosecution. "However", he said, "even if the position were different in relation to private prosecutions, the circumstances in which such an Order could be made are likely to be very rare indeed."
R v. P, ante, was a public prosecution case where the defendant, P, was prosecuted for rape on the evidence of the complainant. The prosecution had also taken a statement from a witness who contradicted the complainant's claim that she had screamed loudly and said that after the couple had sexual intercourse they slept peacefully and apparently affectionately together. Following P's acquittal, the judge, believing the CPS to have brought the prosecution wrongly, ordered the CPS to pay P's costs. On appeal by the CPS, the Court of Appeal was in some difficulty as it was not clear whether the judge's order had been purportedly made under s.19 POA (reg.3 CCCGR) or s.19A POA. As for the latter possibility, Hughes LJ said: "… such an order is simply beyond the judge's power for the very elementary reason that the CPS is a party and not a legal representative acting for a party." So far as s.19 POA was concerned, Hughes LJ did not go so far as to say (as Thomas LCJ subsequently did in Goodison, ante) that the judge had no power to make an order under that section but he did come very close. He said: "We accept that there did exist in this case a number of potentially quite strong indicators which might, and possibly for all we know which should, have led the decision maker within the CPS to reach the opposite conclusion from the one that she did … That said, the question in this case was not whether the decision to prosecute was right or wrong. It is simply not the judge's function to sit on appeal from a decision of the Crown Prosecutor." Hughes LJ, however, continued: "There may be very rare cases where the decision is wholly unreasonable. R (Oddy) v. Bugbugs Ltd [ante] was a different case altogether. That prosecution was brought by a private interest group in pursuit of a commercial objective. The point at issue was one of pure law. It had been decided previously against the prosecution. There could have been a challenge to the ruling by way of appeal to the High Court but there had been none. Unlike that case, in most cases such as the present, there will be room for a legitimate difference of opinion." If Thomas LCJ in Goodison, ante, was suggesting that Hughes LJ had singled out private prosecutions as an exception where an improper decision to prosecute did fall within s.19 POA, that does not appear to be borne out by what Hughes LJ said. Whereas R (Oddy) v. Bugbugs Ltd was a private prosecution, it was, more specifically, a private prosecution where the prosecutor had a "commercial objective". Furthermore, Hughes LJ seemed more concerned by the lack of merit in the decision to prosecute in that case and he contrasted it with the case he was deciding not on the basis that P had been prosecuted by a public prosecutor but on the basis that in P's case there was room for a "legitimate" difference of opinion.
Hughes LJ also said: "We do not say that there will never be a case where a decision to prosecute is so unreasonable that a costs order is appropriate, but we are satisfied that this case [which was a public prosecution] was not arguably such." Had Hughes LJ considered that there was simply no jurisdiction to award costs against a public prosecutor in relation to a decision to prosecute the "appropriateness" of a costs order would have been irrelevant. It follows that Thomas LCJ in Goodison, ante, has taken things a step further than did the Court of Appeal in R v. P which left open the rare possibility of s.19 POA applying to an improper decision to prosecute made by either a public or private prosecutor.
Significantly, Hughes LJ observed: "It is important that the making of that decision should not be overshadowed by the fear that if a prosecution is continued and fails there may be an order for the payment of costs. An acquitted defendant will normally receive his costs from central funds unless there is a good reason why he should not." With private prosecutors, including local authorities with a public and not a commercial interest, having to operate on diminishing budgets, the prospect of losing their own costs is a big enough constraint on prosecuting without the punitive deterrent of potentially having to also pay the defendants costs.
The meaning of "improper" in s.19 POA and reg.3 CCCGR
The meaning of "improper" was considered in DPP v. Denning (1991) 155 JP 1003; [1991] 2 QB 532, where Nolan LJ said: "[The] word 'improper' in this context does not necessarily connote some grave impropriety. Used, as it is, in conjunction with the word 'unnecessary', it is … intended to cover an act or omission which would not have occurred if the party concerned had conducted his case properly."
Although Thomas LCJ held in Goodison, ante, that the order made by the judge in that case was ultra vires, he nonetheless went on to consider the meaning of "improper" in s 19 POA. He noted that the judge had relied upon the definition of 'improper' set out by the Divisional Court in DPP v. Denning, ante, whereas in the subsequent Court of Appeal decision of Ridehalgh v. Horsefield [1994] Ch 205, Sir Thomas Bingham MR gave the following definition: "'Improper' means what it has been understood to mean in this context for at least half a century. The adjective covers, but is not confined to, conduct which would ordinarily be held to justify disbarment, striking off, suspension from practice or other serious professional penalty. It covers any significant breach of a substantial duty imposed by a relevant code of professional conduct. But it is not in our judgment limited to that. Conduct which would be regarded as improper according to the consensus of professional (including judicial) opinion can be fairly stigmatised as such whether or not it violates the letter of a professional code." Although Ridehalgh was a civil case, Sir Thomas Bingham MR said: "We therefore hope that this judgment may give guidance which will be of value to criminal courts as to civil, but we fully appreciate that the conduct of criminal cases will often raise different questions and depend on different circumstances." Thomas LCJ concluded, obiter, that; "the test for impropriety is the rigorous test as set out in Ridehalgh and not the test set out in Denning."
In those circumstances where, following Goodison, courts do have jurisdiction to make a costs order against the prosecution, the application of the "rigorous" definition of "improper" should make such orders even more rare and it is notable that in R (Oddy) v. Bugbugs Ltd, ante, Pitchford J reached his conclusion that: "It is difficult to envisage a more obvious occasion for the award of costs … than an improper decision to prosecute" by applying the less demanding Denning definition of "improper".
A combination of Thomas LCJ's limitation on the scope of s.19 POA and reg.3 CCCGR, at least in relation to public prosecutions, and the adoption of the rigorous Ridehalgh definition of "improper" should make all prosecutors less fearful of prosecuting whilst nonetheless remaining vigilant to act properly given that an unsuccessful prosecution is, in any event, very costly.