P, R. v

A criminal costs order must identify the statutory power on which it is based where more than one power may apply. The powers under Prosecution of Offences Act 1985 are distinct: a wasted-costs order under section 19A is against a legal representative, not the Crown Prosecution Service as a party.

Costs against the Crown for a decision to prosecute are exceptional. A good-faith decision on a difficult evidential assessment does not justify a costs penalty merely because it may have been wrong. The court should not sit as an appellate tribunal reviewing ordinary prosecutorial judgment.

After the defendant was acquitted of rape in the Crown Court, the trial judge ordered the Crown Prosecution Service to pay defence counsel’s and solicitors’ costs. The judge considered that the prosecution should not have been brought or continued.

The Crown Prosecution Service appealed. The orders did not state their statutory basis, although the Crown Court later indicated by telephone that section 19A of the Prosecution of Offences Act 1985 had been used. The central issues were whether the orders were within the judge’s powers and whether the decision to prosecute could properly found a costs order.

1. Appeal allowed. The costs orders were quashed. The orders failed to identify the statutory power invoked, despite the express requirement in rule 76.2(4) of the Criminal Procedure Rules 2010 where there is a choice of powers.
2. An order under section 19A of the Prosecution of Offences Act 1985 was beyond the judge’s jurisdiction. That provision permits wasted costs only against a legal representative, meaning a person acting as advocate or litigator for a party. The Crown Prosecution Service was itself a party, not such a representative.
3. If the judge instead intended a party-and-party order under section 19 and regulation 3, it was still defective. It was not properly framed as an order payable to the defendant; the solicitors’ costs were not quantified as regulation 3(3) required; and the Crown Prosecution Service had no opportunity to address the amount of those costs.
4. The court further held that the order should never have been made on its merits. A prosecutorial decision made in good faith on a difficult assessment of evidence may be debatable, but that does not make it appropriate to penalise the Crown in costs. Such orders are serious and unusual, and could arise only in the clearest cases of a wholly unreasonable decision. The trial judge was not entitled to treat an acquittal, or an arguable disagreement over the evidential assessment, as sufficient.
5. A ruling that there is a case to answer does not establish that the decision to prosecute was correct. As explained by R (B) v Director of Public Prosecutions [2009] EWHC 106 (Admin), the two inquiries apply different tests.
6. To resolve the matter finally, the court sat as a Divisional Court, granted judicial-review permission, and quashed any order that had instead been made under section 19.

• Court of Appeal (Criminal Division): The Crown Prosecution Service’s appeal was allowed and the costs orders were quashed: [2011] EWCA Crim 1130 .
• Crown Court: Following the defendant’s acquittal, the judge ordered the Crown Prosecution Service to pay defence costs. No citation for that order was stated.