Crown Prosecution Service, R (on the application of) v Johnson

A Crown Court may make a costs order under section 19 of the Prosecution of Offences Act 1985 and regulation 3 of the Costs in Criminal Cases Regulations 1986 only in favour of a party to the criminal proceedings. Defence counsel, although representing a party, is not herself a party. The court cannot adopt an expanded meaning of “party” to cure perceived unfairness arising from the Advocates’ Graduated Fee Scheme. A costs order made in favour of counsel for an ineffective hearing caused by prosecutorial default is therefore unlawful. The judgment also confirms that judicial review of a Crown Court costs order depends on the substantive nature and procedural stage of the order, not merely on the statutory source of the power.

The Crown Court ordered the Crown Prosecution Service to pay £100 plus VAT to defence counsel for attendance at an ineffective plea and case management hearing. The hearing had been adjourned because the prosecution case was inadequately prepared, and counsel would receive no additional remuneration under the Advocates’ Graduated Fee Scheme.

The CPS challenged the order by judicial review. The issues were whether the High Court had jurisdiction to review the order, whether counsel was a “party” for the purposes of section 19 of the Prosecution of Offences Act 1985 and regulation 3 of the Costs in Criminal Cases Regulations 1986, and whether costs had been incurred by counsel.

1. Judicial review jurisdiction. The High Court had jurisdiction under section 29(3) of the Senior Courts Act 1981. The exclusion relating to matters connected with trial on indictment did not apply to an order made at the plea and case management stage in favour of counsel rather than between the Crown and the defendant.
2. Meaning of “party”. Under section 19(1) of the Prosecution of Offences Act 1985 and regulation 3 of the Costs in Criminal Cases Regulations 1986, the parties were the Crown and the defendant. Counsel represented the defendant but was not herself a party. Section 19A of the 1985 Act, which distinguishes parties from their legal representatives, reinforced that ordinary and natural construction.
3. The Crown Court could not extend the statutory meaning of “party” because the existing fee structure left counsel uncompensated for a wasted attendance. Public policy and perceived anomalous consequences could not justify a strained construction of the legislation.
4. It was unnecessary to determine whether counsel had incurred costs or whether the CPS’s conduct was improper. The order was quashed. The court endorsed the wider concern that the problem required consideration by the Legal Services Commission and the Ministry of Justice, potentially through legislation. No further order was made.

The claim concerned a costs order made by HHJ Everett in the Bolton Crown Court on 24 March 2011. The Divisional Court exercised judicial review jurisdiction and quashed that order.