Murphy, R (On the Application Of) v Media Protection Services Ltd

A defendant in criminal proceedings who is ultimately exonerated and has behaved properly may recover costs from central funds under section 16 of the Prosecution of Offences Act 1985. That entitlement may be appropriate where a previous costs order against a private prosecutor is practically worthless and pursuing a non-party costs order would expose the defendant to disproportionate costs risk. The court may take account of subsequent appellate authority concerning the jurisdiction to make civil costs orders in criminal proceedings.

The claimant operated a public house and was convicted of copyright offences after being prosecuted by Media Protection Services Ltd on behalf of the Premier League. Her convictions were later quashed following a reference to the Court of Justice of the European Union. A Divisional Court subsequently ordered Media Protection Services Ltd to pay her costs under the civil costs regime. The company later ceased operations and could not satisfy the order.

The claimant sought an order for her costs from central funds. The issue was whether, in light of the unenforceable earlier order and the risks of pursuing a non-party costs order against the Premier League, such an order should be made under section 16 of the Prosecution of Offences Act 1985.

1. The court ordered that the claimant’s costs be paid from central funds under section 16 of the Prosecution of Offences Act 1985. She was ultimately exonerated, had not misbehaved during the proceedings, and remained a defendant in a criminal case despite the unusual commercial context.

2. The previous order against Media Protection Services Ltd provided no realistic means of recovery because the company had ceased operations and had no funds. The court also considered that pursuing a non-party costs order against the Premier League would expose the claimant to an enormous and unjustified costs risk.

3. In reaching that conclusion, the court took account of the Court of Appeal’s view in Darroch v Football Association Premier League Limited, [2017] 4 WLR 6, para 25, that a Divisional Court had no power to make a civil costs order in a criminal case. The present court used that development to assess the practical futility of relying on the earlier order, without determining the jurisdictional issue afresh.

4. The order was made subject to a proviso. It would not become final until it had been served on the Ministry of Justice and 21 days had elapsed without an application to vary it, or, if such an application were made, until further order.

• Divisional Court: On 24 February 2012, the claimant’s criminal convictions were quashed after the European reference. On 8 March 2012, the court ordered Media Protection Services Ltd to pay costs under the civil costs regime.
• Divisional Court: On 18 July 2017, the court ordered the claimant’s costs to be paid from central funds under section 16 of the Prosecution of Offences Act 1985, subject to notice being served on the Ministry of Justice.