Singh, R (on the application of) v Ealing Magistrates Court & Anor

For the purposes of section 19 of the Prosecution of Offences Act 1985, the prosecution is treated as one party. It is unnecessary to identify whether fault lies with the police or the Crown Prosecution Service.

A single mistake or omission may trigger the court’s discretion to order costs if it resulted from the prosecution side not conducting the case properly and caused the defendant additional costs. The jurisdiction remains highly fact-sensitive. An order is discretionary, and a satisfactory explanation may make it unjust to order costs.

The claimant was prosecuted for possession of a controlled drug and driving while unfit through drugs. A hearing was abortive because no prosecution papers were available. The deputy district judge refused an application for costs under section 19 of the Prosecution of Offences Act 1985, reasoning that the responsible individual or organisation could not be identified.

The claimant sought judicial review. With the parties’ consent, the Divisional Court also treated the matter as an appeal by way of case stated. The central issues were whether the judge had applied the statutory test correctly and whether the court should determine the costs application itself.

1. Error of law and outcome. The deputy district judge erred in law by treating identification of the particular person or organisation at fault as necessary. For section 19 purposes, where the police and CPS are involved in the prosecution, they form part of the Crown, which is the party opposite the accused.

2. Applicable costs jurisdiction. The court followed the structured approach identified in R (Commissioners of Customs and Excise) v Crown Court at Leicester [2001] EWHC Admin 33: determine whether there was an unnecessary or improper act or omission; whether costs were incurred as a result; and whether, as a matter of discretion, an order should be made, identifying and quantifying the costs.

3. The court applied Director of Public Prosecutions v Denning [1991] 2 QB 532. “Improper” conduct is not confined to grave impropriety. A failure to conduct a case properly can suffice. A repeated failure is unnecessary: a single mistake which causes additional costs may trigger the discretion. The discretion is not a duty, and the decision depends on the facts and any satisfactory explanation.

4. Resource pressures did not prevent the exercise of the jurisdiction. The Criminal Procedure Rules require criminal cases to be dealt with justly, efficiently and expeditiously, and require participants to prepare and conduct cases consistently with that overriding objective.

5. The absence of prosecution papers was a clear mistake, had no satisfactory explanation, and caused the hearing to be abortive. The court therefore reversed the determination and ordered the prosecution to pay the claimant’s costs of the 17 May 2013 hearing in the sum of £864.

The claim arose from a deputy district judge’s refusal of a costs application at Ealing Magistrates’ Court. With the parties’ consent, the Divisional Court proceeded as if it also had an appeal by way of case stated and reversed the magistrates’ court determination.