Adams, R (on the application of) v Special Investigations Unit

Before making a Recovery of Defence Costs Order under regulation 13 of the Criminal Defence Service (Recovery of Defence Costs Orders) Regulations 2001, the court must give the defendant a proper opportunity to address whether the order should be made immediately or whether the matter should be adjourned for further information under regulation 12. A failure to provide information may empower the court to make a full-cost order, but does not invariably require that course at the first hearing. A regulation 13 order creates a civil debt for the full representation costs. It is not later reduced by reference to the defendant’s means, save through bankruptcy or other compounding with creditors.

The claimant sought judicial review of a Recovery of Defence Costs Order made by a Crown Court judge under regulations 3(1) and 13 of the Criminal Defence Service (Recovery of Defence Costs Orders) Regulations 2001. The order imposed liability for the full costs of his publicly funded representation, later quantified at more than £4.7 million.

The claimant contended that he had not been given a proper opportunity to argue whether a regulation 13 order should be made or whether the matter should be adjourned for investigation of his means. The central issue was whether the judge had been bound to make the full-cost order because requested information had not been provided.

1. The claim succeeded. The court quashed the Recovery of Defence Costs Order, remitted the matter to the Blackfriars Crown Court for reconsideration by a different judge, and awarded the claimant the costs of the judicial review application, subject to taxation.
2. The regulations did not prescribe a detailed procedure, but the relevant Practice Direction required the judge, where further information was needed, to consider adjourning the making of the order and directing that information be provided. The claimant should therefore have been given a clear opportunity to address whether a regulation 13 order should be made immediately or whether the matter should proceed under regulation 12.
3. The judge’s order was procedurally and substantively confused. Regulation 13 provides for an order for the full costs of representation when required information has not been supplied. It does not provide for a later means-based assessment. By contrast, regulation 12 permits the court to adjourn and make a later order dependent upon the defendant’s means.
4. The judge had power to make a regulation 13 order if he concluded that the information had not been supplied, but he was not bound to do so at the March hearing. His mistaken belief that the order could later be mitigated in the manner of a confiscation order materially affected the decision. A regulation 13 order creates a civil debt for the full sum and cannot subsequently be reduced by a Certificate of Inadequacy; relief may arise only through bankruptcy or another form of compounding with creditors.
5. A formal application by the Legal Services Commission was not necessary. The case was remitted so that the claimant and the Commission could argue afresh whether regulation 13 had been triggered and what order was appropriate.

First-instance judicial review proceedings. The Administrative Court quashed the Crown Court order and remitted the matter for reconsideration by a different Crown Court judge.