Hunter v Newcastle Crown Court

The court considered whether an appeal by way of case stated under s.28 of the Senior Courts Act 1981 was available to challenge a Crown Court judge's refusal to order that a defendant's defence costs be paid out of central funds after the Crown offered no evidence and verdicts of not guilty were entered under s.17 of the Criminal Justice Act 1967. The Divisional Court held that s.28(3) excludes from case-stated appeals any judgment or decision of the Crown Court "relating to trial on indictment" and that decisions about costs of this character are integral to the trial process. The court applied House of Lords authority (including Re Smalley and Re Sampson) and recent appellate authority (notably Re Ashton and Reg v Harrow Crown Court ex parte Perkins) to conclude that it had no jurisdiction to review Judge Thorn's refusal. Consequently the court answered the question in the case stated negatively and did not decide the substantive merits of the costs application under s.16(2) of the Prosecution of Offences Act 1985.

This was an appeal by way of case stated from a Crown Court decision refusing an order that the claimant's defence costs be paid out of central funds. The claimant and his twin brother had been prosecuted on an indictment alleging offences under the Companies Act 2006 and the Financial Services and Markets Act 2000. The Crown ultimately offered no evidence against the claimant and Judge Thorn entered verdicts of not guilty under s.17 of the Criminal Justice Act 1967. The claimant applied under s.16(2) of the Prosecution of Offences Act 1985 for recovery of his costs from central funds; the application was refused.

The Divisional Court was asked, by way of the case stated, (1) whether an appeal by case stated was competent where the decision related to a trial on indictment, and (2) if so, whether the Crown Court was justified in refusing the costs order. The court analysed the meaning of "relating to trial on indictment" in light of authorities including In Re Smalley, Re Sampson and the Divisional Court's decision in Reg v Wood Green Crown Court ex parte DPP. The court concluded that the House of Lords' decision in Re Ashton and subsequent authority (in particular Reg v Harrow Crown Court ex parte Perkins) demonstrated that orders concerning costs of the type sought were integral to the trial process and therefore fell within the exclusion in s.28(3) Senior Courts Act 1981.

Accordingly the court held it had no jurisdiction to entertain the case stated and answered the first question in the negative. The second question, addressing whether the Crown Court's refusal was justified on the merits, was not determined. The judgment records the factual findings made by Judge Thorn about the claimant's involvement with the company and the conclusion that the claimant had, by his conduct, brought suspicion upon himself and misled the prosecution into thinking the case was stronger than it was; the Divisional Court declined to reassess those factual conclusions.

The court also commented on the limited scope of review where decisions are "intimately bound up with the trial process" and noted the rarity of intervention where Parliament has excluded matters "relating to trial on indictment" from the case-stated and judicial review routes.

The appeal by way of case stated was dismissed for lack of jurisdiction. The Divisional Court held that the decision whether to order payment of a defendant's defence costs out of central funds is a matter "relating to trial on indictment" within s.28(3) Senior Courts Act 1981 and therefore not susceptible to challenge by case stated. Consequently the court did not determine the substantive merits of the costs application under s.16(2) of the Prosecution of Offences Act 1985.

Appeal by way of case stated from Judge Thorn QC at Newcastle Crown Court (decision refusing to order payment of defence costs out of central funds after the Crown offered no evidence and verdicts of not guilty were entered). Determination by the Divisional Court of the High Court, neutral citation [2013] EWHC 191 (Admin).