Najib And Sons Ltd v Crown Prosecution Service

An order for costs against a prosecutor under regulation 3 requires an unnecessary or improper act or omission. A failed prosecution, including one which fails in law, does not alone meet that demanding threshold. The conduct must be starkly improper and the remedy remains exceptional.

Where a prosecution was upheld after substantial argument at first instance and permission to appeal was initially refused, it may not be proper to characterise its institution or initial pursuit as improper. However, once the appellate court has clearly identified the absence of an apparent legal basis for the charge, a prosecutor who cannot provide one may be liable for the costs subsequently incurred.

The appellant’s conviction and sentence for an alleged offence under regulation 17(1) of the Transmissible Spongiform Encephalopathies (England) Regulations 2010 had been quashed in the earlier appeal judgment, [2018] EWCA 909 (Crim). The court held there that an inspector had no power under the Regulations to require the appellant to provide samples, so the alleged offence did not exist in law.

The appellant then sought its costs in the Crown Court and Court of Appeal under regulation 3 of the Costs in Criminal Cases (General) Regulations 1986. The issue was whether the CPS had pursued the prosecution through an unnecessary or improper act or omission, and, if so, what costs should be awarded.

1. The court granted the appellant a costs order of £10,000. The requirements of regulation 3 were satisfied in respect of the appeal proceedings incurred after 9 March 2018.

2. The court accepted the principles stated in R v Cornish [2016] EWHC 779 (QB). A failed prosecution does not itself establish impropriety. The test is impropriety rather than mere unreasonableness, and a costs order against a public prosecutor is a rare remedy for a clear and stark error.

3. Although the prosecution failed because the charged offence did not exist in law, it was not improperly brought or advanced in the Crown Court. The trial judge had rejected the appellant’s legal challenge after four days of argument in a detailed judgment. A single judge had also initially refused permission to appeal. It was therefore impossible to conclude that the absence of legal merit had been, or should have been, plain at that stage.

4. The position changed after the oral permission hearing on 9 March 2018. The court’s observations put the CPS on notice that it needed to identify a provision in the Regulations supplying a proper legal basis for the charge. Its failure to identify such a provision in its subsequent written or oral submissions made the regulation 3 test satisfied.

5. The court declined to award the full scheduled costs. Most had been incurred before the relevant date; the appellant’s representatives’ fees were excessive for an inter-party order; and the appellant had pursued two unsuccessful appeal grounds. On a summary assessment, £10,000 was appropriate.

• Court of Appeal (Criminal Division): In [2018] EWCA 909 (Crim), the court allowed the appeal and quashed the conviction and sentence because the alleged offence did not exist in law.
• Derby Crown Court: The appellant’s preliminary legal challenge was rejected in a written judgment handed down on 17 January 2017. The appellant then pleaded guilty in light of that ruling.