Allan v South Tyneside Law Courts

A defendant’s costs order may be made where criminal proceedings are discontinued, and it should normally be made unless there are positive reasons to refuse it. The court must distinguish between entitlement in principle and the amount properly recoverable. Costs reasonably and properly incurred in preparing the defence during the period between arrest and notification of discontinuance may qualify. A decision-maker must address that period specifically. If the issue has not been considered, the decision is arguably unlawful and may be reconsidered by the reviewing court.

The claimant sought judicial review of a magistrates’ court decision refusing his claim for defence costs from central funds after the prosecution discontinued proceedings under section 5 of the Public Order Act. Permission had been refused on the papers, and the claimant renewed the application. The issue was whether the district judge had lawfully assessed the claimant’s entitlement and the costs properly incurred in preparing his defence, particularly during the period between his arrest and notification that the proceedings would be discontinued.

1. The court extended time for the judicial review claim, taking account of the claimant’s disability and difficulties in presenting the material.
2. The applicable practice was that a defendant’s costs order should normally be made when proceedings were discontinued, unless positive reasons justified refusal. The court had to consider both entitlement in principle and the amount of expenses properly incurred.
3. Under section 16(7) of the Prosecution of Offences Act 1985, where a defendant’s costs order was made but recovery of the full amount was inappropriate, the court was required to assess and specify the amount that was just and reasonable. The reference in section 16(6) was to expenses properly incurred in the proceedings.
4. The material supported excluding costs incurred before arrest and after the legal representation order. It did not show that the district judge had specifically considered costs incurred between 18 November and 19 December 2008. Failure to consider that potentially recoverable period was arguably, and if established definitely, wrong.
5. Although the natural course would have been to grant permission and allow the judicial review to proceed, the court adopted an unusual course because of the practical difficulties facing the claimant and the magistrates’ court’s withdrawal. It treated the permission hearing as the substantive hearing, set aside the district judge’s order, and exercised the discretion afresh.
6. The court assessed £400 as properly incurred by the claimant during the relevant period, granted a defendant’s costs order for that sum, and allowed the application in part. Either party could make further written representations within 14 days.

Permission for judicial review had been refused on the papers by Blake J. The claimant renewed the application before the Administrative Court. The court granted permission in relation to the costs incurred between arrest and notification of discontinuance, treated the hearing as substantive, set aside the district judge’s decision and made a defendant’s costs order of £400.