R (Director of Public Prosecutions) v Aylesbury Crown Court & Anor

Under section 19 of the Prosecution of Offences Act 1985 and regulation 3 of the Costs in Criminal Cases (General) Regulation 1986, a Crown Court may order one party to pay another’s costs only where the costs resulted from an unnecessary or improper act or omission by, or on behalf of, that party. An independent expert instructed by the prosecution is not thereby part of the Crown, and the expert’s error is not automatically attributable to the prosecution. Any prosecution responsibility requires a distinct act or omission by the prosecution. Impropriety requires more than negligence or unreasonableness. The court must follow the statutory sequence, assess the relevant costs itself and specify the amount. A sufficiently grave jurisdictional error permits judicial review of a costs order connected with an indictment.

The Crown Prosecution Service sought judicial review of a costs order made by HH Judge Sheridan at Aylesbury Crown Court on 14 September 2016 under section 19 of the Prosecution of Offences Act 1985 and regulation 3 of the Costs in Criminal Cases (General) Regulation 1986.

An independent digital forensic expert instructed by the Crown incorrectly treated one image as accessible. After the error was identified, the prosecution offered no evidence and the proceedings ended. The Crown Court ordered the Crown to pay the defendant’s full defence costs, to be taxed.

The CPS argued that the expert was independent, that no unnecessary or improper act by the CPS had been established, and that the order failed to specify the amount payable. The central issues were whether the order was amenable to judicial review, whether the statutory threshold was met, and whether the form of the order was lawful.

Lady Justice Sharp delivered the judgment, with Mr Justice Julian Knowles agreeing. The claim was allowed and the costs order was quashed.

1. Jurisdiction. The exclusion of decisions relating to trial on indictment did not prevent judicial review where the Crown Court had made a jurisdictional error of sufficient gravity to take the decision outside its jurisdiction. The approach was supported by R v Smalley [1985] 1 AC 622, Re Sampson [1987] 1 WLR 194, R v Crown Court at Maidstone, ex parte London Borough of Harrow [2001] 1 Cr App R 117, and R (DPP) v Sheffield Crown Court [2014] 1 WLR 4639.
2. Independent expert. Regulation 3 required the relevant act or omission to be by, or on behalf of, the party ordered to pay. An expert’s relationship with the CPS was contractual, not one of agency. Under rule 19.2 of the Criminal Procedure Rules, the expert was an independent witness whose overriding duty was to the court. The expert was not part of the Crown merely because the CPS instructed him. This was distinct from the position of the police and CPS, which could be treated as one Crown party: R (on the application of Maninder Singh) v Ealing Magistrates’ Court [2014] EWHC 1443 (Admin).
3. Impropriety. Even if the expert’s error could be attributed to the CPS, the judge had made no finding that it was improper. The relevant threshold required more than negligence or unreasonableness and involved a clear and stark error. A prosecution’s failure, without more, did not satisfy section 19. Such orders were rare and exceptional.
4. Assessment of costs. Regulation 3 required the judge to identify the unnecessary or improper act, establish causation, exercise the discretion whether to order payment, identify the costs incurred as a result, and specify the amount. The court could direct an enquiry to assist assessment, but it had to assess the amount itself. An order for full costs to be taxed was therefore ultra vires.
5. The errors were sufficiently grave to deprive the Crown Court of jurisdiction. The order was quashed. The CPS did not seek costs against any other party.

Aylesbury Crown Court: HH Judge Sheridan made the costs order on 14 September 2016 under section 19 of the Prosecution of Offences Act 1985.

High Court (Administrative Court): The claim for judicial review was allowed and the costs order was quashed.