Newcombe v Crown Prosecution Service (CPS)

A defendant who successfully resists a criminal charge is normally entitled to a defendant’s costs order from central funds. The discretion to refuse or restrict that order is narrow and requires positive reasons. It must be exercised consistently with the presumption of innocence at common law and under Article 6 of the European Convention on Human Rights. A defendant’s willingness to be bound over concerns future conduct and does not amount to an admission of wrongdoing. It is unreasonable to penalise a defendant for failing to offer a bind-over before the prosecution has suggested that such a resolution would be acceptable, particularly where the prosecution case appears serious and the defendant is entitled to contest it.

The appellant was charged in the magistrates’ court with assault occasioning actual bodily harm, contrary to section 47 of the Offences against the Person Act 1861. On the day fixed for trial, the complainant became unwilling to give evidence. The prosecution offered no evidence and invited dismissal. The district judge dismissed the charge and ordered payment of the appellant’s costs from central funds, but limited recovery to the costs incurred on the day of trial.

The appeal by way of case stated concerned whether the district judge had lawfully restricted the costs order because the appellant had not earlier indicated that he would consent to being bound over to keep the peace.

1. The appeal was allowed. The district judge had erred in law and had made an order outside the bounds of the discretion available under section 16(1)(c) of the Prosecution of Offences Act 1985.

2. The discretion concerning a defendant’s costs order is informed by the Lord Chief Justice’s guidance in Practice Direction (Costs in Criminal Proceedings) [2011] 1 Cr App R 13. Such an order should normally be made unless there are positive reasons for withholding it. The relevant circumstances are narrow because effect must be given to the presumption of innocence at common law and under Article 6 of the European Convention on Human Rights, as explained in Emohare v Thames Magistrates’ Court [2009] EWHC 689 (Admin).

3. The district judge’s conclusion that the appellant had acted unreasonably by not offering a bind-over earlier was untenable. A bind-over concerns possible future conduct and is not an express or implicit admission of wrongdoing. Before the complainant’s change of position, the appellant had consistently denied wrongdoing, and the prosecution had never suggested that it would accept a bind-over. Given the seriousness of the alleged injuries, an earlier suggestion would have served no sensible purpose.

4. The appellant indicated his willingness to be bound over as soon as the circumstances changed. The court’s finding that a bind-over was then unnecessary and inappropriate did not justify restricting his costs. There was no positive reason for withholding a full defendant’s costs order.

5. The question posed by the district judge was answered “No”. The costs order was replaced with an order that the appellant’s costs be paid out of central funds.

• High Court (Administrative Court): The appeal by way of case stated was allowed. The district judge’s restricted costs order was replaced with a full defendant’s costs order.
• Swansea Magistrates’ Court: On 23 November 2012, the charge was dismissed after the prosecution offered no evidence, but costs from central funds were restricted to the costs of that day.