Cornish & Anor, R. v (rev 1)

A costs order against a public prosecutor under section 19 of the Prosecution of Offences Act 1985 requires more than an unsuccessful prosecution or a finding of no case to answer. The prosecutor's act or omission must be starkly improper, not merely debatable or unreasonable. A court must not use the costs jurisdiction as a collateral appeal against a good-faith prosecutorial decision. Where a charge was reasonably based on expert evidence, weaknesses exposed only through effective cross-examination do not retrospectively make the decision to prosecute or continue improper. Such orders against public prosecutors will be rare and confined to exceptional cases of clear and stark error.

The second defendant NHS Trust had been prosecuted for corporate manslaughter following the death of a patient in its care. At the close of the prosecution case, Coulson J upheld submissions that there was no case to answer. The Crown did not appeal, and the jury returned verdicts of not guilty.

The Trust then sought almost £500,000 in costs from the Crown under section 19 of the Prosecution of Offences Act 1985. It alleged that the decision to prosecute, and the continuation of the prosecution, were improper because the evidence could never support the charge. The issue was whether the Crown's reliance on expert evidence and its conduct of the prosecution met the demanding statutory threshold for a costs order.

1. The Trust's application was dismissed. A failed prosecution, including one stopped on a submission of no case to answer, does not of itself satisfy section 19 of the Prosecution of Offences Act 1985. Following DPP v Denning [1991] 2 QB 532, improper conduct is conduct that would not have occurred had the party conducted its case properly. The threshold is impropriety, not mere unreasonableness.

2. The costs jurisdiction must not become a collateral challenge to a prosecutorial decision. As explained in R v P [2011] EWCA Crim. 1130 and applied from R v Evans (Eric)(No. 2) [2015] EWHC 263 (QB), an order against a public prosecutor will be appropriate only in very rare and exceptional circumstances. Where the alleged impropriety is the decision to prosecute, it will generally require a clear and stark error: in substance, a decision that no reasonable prosecutor could have made.

3. The decision to prosecute the Trust was not improper. One allegation, concerning uncertainty in the supervisory arrangements, had evidential support. The other allegations depended substantially on Professor Hopkins's expert opinion. Although hindsight showed that he had formed views too quickly and defended them unconvincingly in cross-examination, his views were not plainly wrong or obviously untenable when the charging decision was made. The Crown was entitled to rely on them.

4. The expert's inability to answer the Trust's careful cross-examination was the principal reason why the prosecution ultimately failed. That did not establish that the failure was apparent before trial. The Crown had kept the case under review and there was no intervening material that required it to regard the expert as unreliable or the case as untenable.

5. The Trust's failure to make an earlier dismissal application was not a relevant precondition to seeking costs. Conversely, its status as an NHS Trust and the alternative use of public money were immaterial considerations. Since no improper conduct was established, it was unnecessary to decide causation of the costs or the discretionary stage of the application.

High Court (Queen's Bench Division): This was a first-instance costs application in criminal proceedings. The judgment records that, at the preceding trial, the court allowed both defendants' submissions of no case to answer; the Crown did not appeal and the jury returned verdicts of not guilty. The present judgment dismissed the Trust's costs application.