Guney, R (on the application of) v Central Criminal Court & Anor

An acquitted funded defendant may be made subject to a recovery of defence costs order only in exceptional circumstances. The relevant circumstances are not confined to the example in the Practice Direction. They may arise where the defendant’s conduct both brings suspicion upon him and reinforces the prosecution’s belief that its case is strong. The conduct need not consist of two wholly separate acts. A court may rely on sustained conduct after suspicion has arisen, particularly where the defendant could have ended the investigation but deliberately continued to strengthen the case against himself. The reviewing court will not intervene where the decision reflects a lawful exercise of discretion, even if the judge did not separately state every statutory consideration, provided the ruling shows that the relevant matters were considered.

The claimant was acquitted by a jury after trial at the Central Criminal Court on a charge of soliciting murder. The Recorder of London subsequently made a recovery of defence costs order under the Criminal Defence Service (Recovery of Defence Costs Orders) Regulations 2001, requiring payment of the assessed defence costs within 12 months.

The claimant sought judicial review, arguing that the statutory conditions were not satisfied and that the Recorder had failed separately to consider whether the order was reasonable. The central issues were whether his conduct had brought suspicion upon him, whether it had misled the prosecution into thinking that its case was stronger than it was, and whether the order was reviewably unlawful or irrational.

1. The application for judicial review was dismissed. The court had jurisdiction to review a recovery of defence costs order. Re Sampson did not preclude review, and the approach in R v Patel confirmed that the reviewing court could act as a Divisional Court.
2. Under regulations 4(2)(d) and 11 of the Criminal Defence Service (Recovery of Defence Costs Orders) Regulations 2001, an order against an acquitted funded defendant requires exceptional circumstances, followed by consideration of whether making the order is reasonable in all the circumstances.
3. The example in the 2004 Practice Direction is not exhaustive. The two relevant features are whether the defendant brought suspicion upon himself and whether his conduct misled the prosecution into believing that its case was stronger than it was. Those features do not necessarily require separate acts.
4. The Recorder was entitled to find that the claimant, knowing or suspecting that the proposed killer was a police officer, deliberately continued for about a month to encourage him and reinforce the investigation. His conduct strengthened the prosecution case and led to the prosecution continuing. His detailed account after arrest did not undo that earlier conduct.
5. R (Elliott Spiteri) v Basildon Crown Court was distinguishable. In that case the defendant had not contributed to the evidential defect which caused the prosecution to fail. The present case concerned sustained conduct which actively strengthened the case against the defendant. The Recorder’s ruling showed that he had considered the relevant matters, and the failure expressly to state that the order had to be reasonable did not establish an error of law.
6. The decision to order the full assessed costs, with 12 months for payment and liberty to apply if means proved insufficient, was neither irrational nor otherwise reviewable.

First-instance judicial review proceedings in the High Court (Administrative Court). The claim challenged the Recorder of London’s recovery of defence costs order made on 8 January 2010.