Spiteri, R (on the application of) v Basildon Crown Court

A defendant’s costs order should normally be made following acquittal unless positive reasons justify refusal. A defendant’s conduct may provide such a reason where it brought suspicion upon him and misled the prosecution into believing that its case was stronger than it was. Merely bringing the prosecution upon oneself, or being acquitted because of a fundamental procedural failure, is insufficient. Costs cannot be refused on the assumption that an acquitted defendant was in fact guilty, consistently with the presumption of innocence. The current practice direction’s omission of earlier wording referring to acquittal on an unmeritorious technicality is significant.

The claimant successfully appealed to Basildon Crown Court against his conviction for driving with excess alcohol. The conviction was quashed because the police had failed to ask a required question during the breath-test procedure.

The Crown Court refused a defendant’s costs order, reasoning that the claimant had brought the prosecution upon himself and had been acquitted on an unmeritorious technicality. It also refused to state a case. Permission was granted for judicial review. The central issues were whether the refusal to state a case was lawful and whether the claimant was entitled to costs from central funds.

1. Judicial review allowed. The Crown Court was wrong in law to refuse to state a case. The application was substantive and was not frivolous.
2. The applicable Practice Direction (Criminal Proceedings: Costs) stated that a defendant’s costs order should normally be made unless there were positive reasons for refusing it. Its example concerned conduct which brought suspicion upon the defendant and misled the prosecution into thinking that its case was stronger than it was.
3. The Crown Court wrongly described the procedural failure as an unmeritorious technicality. The failure was fundamental, and the conviction could not stand. Since the claimant had been acquitted, it was contrary to principle and the presumption of innocence to approach costs on the basis that he was guilty of the offence.
4. The claimant’s conduct may have brought the prosecution upon himself, but there was no suggestion that it had misled the prosecution. Mere self-induced suspicion or responsibility for the prosecution did not amount to positive reasons for refusing costs.
5. Earlier practice-direction wording referring to cases supported by ample evidence but ending in acquittal on an unmeritorious technicality had been removed in 1999 and was absent from the current direction. Lower courts should have careful regard to that change.
6. The refusal of the defendant’s costs order was quashed. Because only one reasonable order was available, the court substituted a defendant’s costs order covering the Magistrates’ Court and Crown Court proceedings. The court also made an order for costs out of central funds for the judicial review proceedings, subject to jurisdiction.

• Basildon Crown Court: quashed the conviction on the breath-test procedural ground, refused a defendant’s costs order and refused to state a case.
• High Court (Administrative Court): granted judicial review, quashed the refusal of costs and substituted a defendant’s costs order. The court also held that the refusal to state a case was wrong in law.