Chaudhary, R (on the application of) v Bristol Crown Court & Anor

In criminal proceedings, pre-existing Crown Court Rules cease to govern costs where the statutory rule-making power has been replaced by the Criminal Procedure Rules. The continuing existence of a particular rule depends on the amended enabling legislation and the scope of the replacement rules.

A Crown Court’s status as a superior court of record does not confer a general inherent jurisdiction to award costs. Its powers under the equivalent of the High Court’s incidental jurisdiction extend only to matters necessary for the proper dispatch of the business before it. A costs order in an application under section 59 of the Criminal Justice and Police Act 2001 was therefore unavailable.

The claimant sought judicial review of a decision in proceedings under section 59 of the Criminal Justice and Police Act 2001. The original judgment awarded costs against him, applying the general rule on costs. The costs issue was adjourned pending the Court of Appeal’s decision in Panesar and others v Her Majesty’s Revenue and Customs, which confirmed that section 59 proceedings were a criminal matter for the purposes of the appellate route.

The remaining question was whether the Crown Court could award costs under rule 12 of the Crown Court Rules 1982, despite the Criminal Procedure Rules, or alternatively under its status as a superior court of record.

1. The Divisional Court held that the Criminal Procedure Rules replaced the Crown Court Rules insofar as they governed costs in criminal cases. The amendments to sections 52 and 84 of the Senior Courts Act 1981, together with section 69 of the Courts Act 2003 and the introduction of the Criminal Procedure Rules, removed the former rule-making basis for rule 12 of the Crown Court Rules 1982 in this context.

2. The court applied the established principle, illustrated by Watson v Winch [1916] 1 KB 688 and R v Ellis (1921) 125 LT 397, that repeal of an enabling power may by implication revoke secondary legislation made under it. The Criminal Procedure Rules consequently replaced the pre-existing costs regime for criminal proceedings. Rule 12 was not available for an application under section 59.

3. The court accepted the relevance of Panesar and others v Her Majesty’s Revenue and Customs [2014] EWCA Civ 1613: section 59 proceedings were a criminal matter. That classification did not itself create a costs power, however.

4. Section 45(4) of the Senior Courts Act 1981 did not assist. Under In re Trinity Mirror plc and others [2008] EWCA Crim 50, [2008] Q.B. 770, powers concerning matters incidental to the Crown Court’s jurisdiction extend only to the proper dispatch of its business. A costs order was not directly linked to that function. The Crown Court, being a creature of statute, had no general inherent jurisdiction to award costs.

5. The existing costs order was wrong and was quashed. The court left unresolved a possible distinction between a judge of the Crown Court and the Crown Court itself in exercising the statutory powers under section 59.

The judgment itself records the earlier costs ruling and the adjournment of the costs issue pending the Court of Appeal’s decision in Panesar and others v Her Majesty’s Revenue and Customs [2014] EWCA Civ 1613. The present judgment determined the outstanding costs issue and quashed the order.