Henderson, R (On the Application Of) v Secretary of State for Justice

The statutory exclusion or restriction of recovery from central funds of privately incurred defence costs by acquitted Crown Court defendants is not, without more, incompatible with the presumption of innocence, the right to choose legal assistance, or the prohibition of discrimination. The European Convention on Human Rights creates no general right to reimbursement of criminal defence costs. A costs regime does not imply guilt merely because an acquitted defendant cannot recover private costs. Parliament’s clear allocation of public expenditure cannot be contradicted by a common law power to order payment from central funds. The courts must apply Prosecution of Offences Act 1985, section 16A, as enacted.

The claimant was acquitted in the Crown Court after being privately represented. The Recorder concluded that amendments made by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 prevented a defendant’s costs order covering privately incurred legal costs. The claimant sought judicial review and a declaration of incompatibility under section 4 of the Human Rights Act 1998. He also sought permission to argue that the statutory scheme conflicted with the Bill of Rights 1688 and that the common law should supply a power to award costs from central funds.

The central issues were whether section 16A of the Prosecution of Offences Act 1985, as it operated between 1 October 2012 and 27 January 2014 and thereafter, was incompatible with Convention rights, and whether the courts could create an equivalent common law entitlement.

1. Convention compatibility. The claim for a declaration of incompatibility was dismissed. The Strasbourg authorities establish that the Convention does not confer on an acquitted defendant a right to reimbursement of criminal defence costs. That conclusion applies whether the costs are wholly or partly unrecoverable.
2. The refusal of privately incurred costs did not imply that an acquitted defendant was guilty or cast doubt on his innocence. Ashenden v United Kingdom (2012) 54 EHRR 13 showed that a costs refusal may engage article 6(2) if accompanied by remarks implying guilt, but no such remarks were made here. The Recorder had expressly regretted the statutory restriction.
3. Section 16A did not infringe article 6(3)(c). The claimant was represented by lawyers of his choice. Financial considerations might influence that choice, but the Convention did not guarantee reimbursement of the costs of privately selected representation where legal aid was available.
4. The article 14 argument was unsustainable. The claimant identified no clear protected characteristic and the prosecution or state was not an obvious comparator. In any event, the Government’s stated objectives of controlling public expenditure, maintaining parity between legal aid and central-funds payments, and avoiding reimbursement at private rates supplied sufficient justification.
5. Common law and constitutional arguments. The Bill of Rights 1688 did not regulate the allocation of criminal costs. Following Holden & Co. v CPS (No. 2) [1994] 1 AC 22, clear statutory language is required before public money may be paid from central funds. The court could not create a common law power which contradicted section 16A or rendered it redundant.
6. Permission was refused on the Bill of Rights and common law grounds. Permission was granted to challenge the post-27 January 2014 scheme, but the judicial review claim was dismissed. The court held that neither complete denial of recovery nor recovery limited to legal aid rates was incompatible with Convention rights.

The judgment was a first-instance decision in the Administrative Court. The claimant challenged the Crown Court’s refusal to make a defendant’s costs order, but did not pursue direct judicial review of that decision after considering section 29(3) of the Senior Courts Act 1981.