Blacow v R

When a successful defendant seeks a defendant’s costs order, the discretion under the Prosecution of Offences Act 1985 must be exercised in accordance with the applicable practice direction. An order should normally be made unless there is a positive reason for refusing it. The example of a positive reason requires both conduct bringing suspicion on the defendant and conduct misleading the prosecution into thinking that its case is stronger than it is. Conduct which merely contributes to an altercation, without inviting arrest and prosecution or misleading the prosecution, does not justify withholding costs.

The appellant was convicted by a magistrates’ court of assault but acquitted of a second assault charge. He received only half his costs. The Crown Court allowed his conviction appeal but refused to order payment of the remaining costs, reasoning that he had contributed to the incident by staying at his former partner’s home and continuing an argument despite having an opportunity to leave.

The appellant appealed by case stated. The issue was whether the Crown Court had exercised its discretion unlawfully or in a Wednesbury unreasonable manner.

1. The appeal was allowed. The Crown Court’s refusal of a defendant’s costs order was quashed, and an order was made for the remaining half of the appellant’s costs before the magistrates’ court.
2. Sections 16(1)(c) and 16(3) of the Prosecution of Offences Act 1985 confer a discretion to make a defendant’s costs order. The discretion must be exercised in accordance with Part 2 of Practice Direction (Criminal Proceedings: Costs) [2010] 1 WLR 2351. A successful Crown Court appellant is to be treated in the same way as a defendant dealt with by a magistrates’ court.
3. The practice direction states that an order should normally be made unless there are positive reasons for refusing it. The example concerning conduct which brings suspicion on the defendant and misleads the prosecution is cumulative, not disjunctive. The court followed the interpretation adopted in Dowler v Merseyrail [2009] EWHC 558 (Admin).
4. The appellant’s decision to remain at the property and continue an argument may have been unwise and may have contributed to the altercation. It did not, however, invite his arrest and prosecution for an assault of which he was acquitted. In any event, he did nothing to mislead the prosecution about the merits of its case.
5. The Crown Court therefore applied the costs discretion wrongly in law. The court extended time for the late appeal and ordered payment of £2,435.16, representing the outstanding half of the assessed magistrates’ court costs, pursuant to section 28A of the Senior Courts Act.

• High Court (Administrative Court): The appeal by case stated was allowed. The Crown Court’s costs decision was quashed.
• Preston Crown Court: The conviction appeal was allowed, but the application for the balance of the defendant’s costs was refused on 24 September 2010.
• Blackpool Magistrates’ Court: The appellant was convicted of one common assault and acquitted of another on 21 April 2010. Half his costs were ordered from central funds.