Olden v Crown Prosecution Service

Restraint-order costs proceedings are civil proceedings governed by the Civil Procedure Rules, not criminal costs rules. The starting point is that costs follow the event. Where a defendant is acquitted and the restraint order is discharged, the usual starting point is that the prosecution should bear the costs, because the defendant’s assets should not ordinarily remain burdened by proceedings that did not result in conviction. That starting point remains subject to the court’s discretion. The court must consider the parties’ conduct, including conduct before the proceedings. Deliberate and reprehensible dishonesty that caused the restraint order may justify making no order for costs, even where the arrest was unlawful and the prosecution was undertaken in good faith.

The appellant was prosecuted for deception offences after using false identities to obtain mortgages, loans and other financial benefits. A restraint order was made under section 77 of the Criminal Justice Act 1988 and was later discharged. The appellant’s convictions were quashed because the arresting officer lacked the necessary reasonable grounds, with the consequence that the interview and resulting searches were unlawful.

The Administrative Court, on reconsideration, made no order for costs in the restraint proceedings. The appellant appealed, arguing that the judge had wrongly relied on criminal costs practice and had failed to apply the civil costs regime. The central issue was how the costs discretion should be exercised after an acquittal where the defendant’s conduct had led to the restraint order.

1. Appeal dismissed. The restraint-order proceedings were civil proceedings, so the Civil Procedure Rules, rather than criminal costs rules, governed the costs decision.
2. A judge need not expressly refer to CPR rule 44 if it is manifestly clear that the relevant principles have been applied. The lower judge had the applicable civil principles before him through the respondent’s skeleton argument and had not failed to direct himself properly.
3. The ordinary starting point was that costs follow the event. In restraint-order cases, the appropriate starting point after acquittal was that the defendant should recover the costs of the restraint proceedings from the prosecution. That approach reflected the principle that the public should ordinarily bear the cost of proceedings that had burdened the defendant’s assets but had not resulted in conviction.
4. That starting point was not inflexible. Costs remained a matter for the court’s discretion under CPR rules 44.4 and 44.5. The court could take account of conduct before as well as during the proceedings.
5. The appellant’s systematic and deliberate use of assumed identities to deceive lenders was wholly reprehensible conduct and the decisive factor. It caused the restraint proceedings and justified making no order for costs. The unlawful arrest and the good-faith conduct of the prosecution did not remove the effect of that conduct.
6. The references to criminal costs practice and to R v Connolly did not invalidate the decision. The broad principles of the criminal practice were not materially different from the civil conduct-based discretion, and the lower court’s order was proper.

• Court of Appeal (Civil Division) — Appeal from orders of McCombe J dated 19 February 2009 and 17 March 2009 making no order for costs in the restraint proceedings. Appeal dismissed.