The Court of Appeal has made a rare order for the Crown Prosecution Service (CPS) to pay a successful defendant’s costs after finding that it was a case where the prosecution failed “as a matter of law”.
In Najib And Sons Ltd v Crown Prosecution Service [2018] EWCA Crim 1554, the court quashed the appellant’s conviction and sentence for an alleged offence under regulation 17(1) of the Transmissible Spongiform Encephalopathies (England) Regulations 2010 of failing to give an inspector assistance required to take samples.
Lord Justice Leggatt explained that the “essential ground” on which the conviction was quashed was that, under the regulations, the inspector had no power to require the appellant to provide samples and the appellant’s failure to do so therefore did not constitute an offence in law.
The appellant’s application for costs in the Court of Appeal and below was made under regulation 3 of the Costs in Criminal Cases (General) Regulations 1986, made by the Lord Chancellor under powers conferred by section 19 of the Prosecution of Offences Act 1985.
This provides that where the Court of Appeal is satisfied that costs have been incurred by one of the parties as a result of an unnecessary or improper act or omission by, or on behalf of, another party, the court may, after hearing the parties, order that all or part of those costs be paid by the other party. Here the application was dealt with on the papers.
The court cited the ruling of Mr Justice Coulson (as he then was) in R v Cornish [2016] EWHC 779 (QB) as an accurate summary of the law around an “unnecessary or improper act or omission”:
(a) Simply because a prosecution fails, even if the defendant is found to have no case to answer, does not of itself overcome the threshold criteria of section 19;
(b) Improper conduct means an act or omission that would not have occurred if the party concerned had conducted his case properly;
(c) The test is one of impropriety, not merely unreasonableness. The conduct of the prosecution must be starkly improper such that no great investigation into the facts or decision-making process is necessary to establish it;
(d) Where the case fails as a matter of law, the prosecutor may be more open to a claim that the decision to charge was improper, but even then, that does not necessarily follow because no one has a monopoly of legal wisdom, and many legal points are properly arguable;
(e) It is important that section 19 applications are not used to attack decisions to prosecute by way of a collateral challenge, and the courts must be ever vigilant to avoid any temptation to impose too high a burden or standard on a public prosecuting authority in respect of prosecution decisions; and
(f) In consequence of these principles, the granting of a section 19 application will be very rare and will be restricted to those exceptional cases where the prosecution has made a clear and stark error as a result of which a defendant has incurred costs for which it is appropriate to compensate him.
Leggatt LJ said the present case fell into category (d). “Moreover, it failed because the offence with which the appellant was charged did not exist. In these circumstances, the question whether costs have been incurred as a result of an unnecessary or improper act or omission by the prosecutor is one which naturally arises.”
However, he said the fact that the Crown Court had rejected the appellant’s argument that the facts alleged did not amount to an offence within the scope of the regulations, and that permission to appeal was initially refused by the single judge on the papers, meant it was “impossible to say that the prosecution was improperly brought or that the case was improperly advanced by the respondent in the Crown Court”.
Leggatt LJ continued: “In particular, we think it impossible to say in those circumstances that it was or should have been plain that the prosecution case was without legal merit.”
However, he said the position changed after the oral hearing in the Court of Appeal when permission was granted without calling on the appellant and it said: “We cannot at the moment see how there is any peg on which to hang the criminal charge, but that is a matter which we would expect to be addressed in the respondent’s skeleton [argument] in due course.”
This should have put the CPS on notice that, unless it could find a proper basis for the charge, it was at risk of a costs order. As a result, Leggatt LJ said the test under regulation 3 was satisfied and the appellant is in principle entitled to an award of costs in respect of the proceedings in the Court of Appeal after the oral permission hearing.
The appellant sought costs of £52,000, but the judge said it appeared that the majority of these costs were incurred in the period up to and including the permission hearing. “Nor do we think it right to award all the costs incurred after that date. In particular, the fees charged by the appellant’s representatives are higher than those which we think it appropriate to order another party to pay; and a significant discount should also be made to reflect the fact that, in addition to the grounds on which the appeal succeeded, the appellant pursued two other grounds of appeal which failed.”
He concluded: “Taking these matters into account and adopting a broad view for the purpose of a summary assessment, the amount of costs that the respondent will be ordered to pay is £10,000.”
Stephen Hockman QC and David Hercock (instructed by SAS Daniels) for the appellant; Richard Wright QC and Howard Shaw (instructed by the Crown Prosecution Service) for the respondent.