Quayum v Director of Public Prosecution

A court’s jurisdiction to make a wasted-costs order under Prosecution of Offences Act 1985, section 19 and the associated regulations, must be exercised during the criminal proceedings. Where a final hearing has concluded and the court has already resolved the costs issue, the court is functus officio and cannot entertain a later application. The position is different where proceedings are withdrawn or discontinued, because the court retains jurisdiction to deal with costs. Criminal Procedure Rules governing the form and timing of an application do not create jurisdiction where the statute does not provide it.

The appellant was convicted in his absence by magistrates of using a car without insurance for business purposes. His appeal to the Crown Court was allowed after the prosecution offered no evidence of business use. At the conclusion of that appeal, the Crown Court made a defendant’s costs order payable from Central Funds.

Two working days later, the appellant applied under section 19 of the Prosecution of Offences Act 1985 for wasted costs against the Crown Prosecution Service. A different Crown Court judge held that the court lacked jurisdiction because the application was made after the proceedings had concluded. The issue on the case stated was whether the Crown Court was functus officio.

1. The appeal was dismissed. The Crown Court was functus officio when the later wasted-costs application was made. The proceedings had concluded when the appeal was allowed, the conviction quashed and the court had dealt with costs.

2. Section 19 of the Prosecution of Offences Act 1985 permitted regulations authorising a costs order at any time during the proceedings. Regulation 3(1) of the Costs in Criminal Cases (General) Regulations 1986 reflected that statutory limitation. It did not confer jurisdiction to make an application after the proceedings had ended.

3. Part 76 of the Criminal Procedure Rules did not assist the appellant. Part 76.1 applied only where the court could already order one party to pay another’s costs. Procedural rules could not create a jurisdiction which had not been created by law. Further, the application should have been made as soon as the grounds for it were known.

4. Director of Public Prosecutions v Denning [1992] 94 Cr App R 272 was confined to proceedings brought to an end by a notice of discontinuance. In that situation, the court retained jurisdiction to determine costs. It did not apply to ordinary proceedings ending after a final hearing and a completed costs determination.

5. The court also observed that prosecutors must keep under review whether sufficient evidence remains to justify continuing proceedings. There is no principle requiring a prosecutor to resist an appeal where the basis of the conviction has become untenable. The court criticised any contrary Crown Prosecution Service policy, although that observation was not necessary to the jurisdictional decision.

6. The appellant’s application for costs against the Crown Prosecution Service was therefore unavailable after the appeal had concluded. No order for costs was made in the Administrative Court.

• High Court (Administrative Court): The appeal by way of case stated was dismissed. The court upheld HHJ Gosling’s ruling that the Crown Court was functus officio and could not hear the later wasted-costs application.
• Derby Crown Court: The appellant’s conviction appeal was allowed and a defendant’s costs order was made payable from Central Funds. HHJ Gosling subsequently refused jurisdiction to hear the later application under section 19 of the Prosecution of Offences Act 1985.