Rees, R (on the application of) v Snaresbrook Crown Court

After an acquittal, a defendant should normally receive an order for costs from central funds. Refusal requires positive reasons, which must be identified and explained without suggesting that the defendant committed the offence. The example in the relevant practice direction is not exhaustive, but its two conditions are conjunctive: the defendant’s conduct must have brought suspicion on him and misled the prosecution into thinking that its case was stronger than it was. Credibility concerns alone do not justify withholding costs unless the court is sure of the relevant conduct and expresses its reasoning consistently with the presumption of innocence.

The claimant, a sheep farmer, was acquitted on appeal at Snaresbrook Crown Court of an offence under the Animal Welfare Act 2006. The Crown Court concluded that the prosecution had been an abuse of process because relevant samples and transport-temperature evidence had not been obtained. It nevertheless refused an order that the claimant’s costs be paid from central funds, stating that it was not certain that he had told the truth.

The claimant sought judicial review, contending that the costs decision was unlawful and that the comments infringed the presumption of innocence. The central issues were the circumstances in which costs may be withheld after acquittal and the manner in which the court must explain that decision.

1. The court allowed the application, quashed the Crown Court’s costs order and substituted an order that the claimant be paid from central funds for his costs in both the Crown Court and the Magistrates’ Court. The costs were to be taxed in the usual way. The claimant also received his costs of the judicial review.

2. Under paragraph II of the Practice Direction (Costs: Criminal Proceedings), a costs order in favour of an acquitted defendant should normally be made unless positive reasons justify withholding it. The court must identify those reasons in open court and make clear that they do not suggest guilt of the offence charged.

3. The example in paragraph II(2)(1), concerning conduct which brings suspicion on the defendant and misleads the prosecution into thinking that its case is stronger than it was, is not exhaustive. The two conditions in that example are conjunctive. The approach stated in R (Spiteri) v Basildon Crown Court [2009] 5 Costs LR 772 and Dowler v Merseyrail [2009] EWHC 558 was followed.

4. Other possible positive reasons could include a case in which the court was sure that the defendant had perjured himself, or a case in which the prosecution had been ambushed by the nature of the defence. Such reasons remain subject to the requirement that the explanation must not imply that the defendant committed the charged offence.

5. The Crown Court had not clearly articulated a positive reason for withholding costs. Its statement that it was not certain that the claimant had told the truth did not satisfy the applicable test. If credibility were relied upon, the court would need to be sure of the relevant matter while avoiding language suggesting guilt. The refusal of costs was therefore unlawful.

The claimant applied for judicial review of the Snaresbrook Crown Court’s refusal to order payment of his costs from central funds. The Administrative Court quashed that decision and substituted the costs order.