Mirchandani v The Lord Chancellor

Section 17(1)(a) of the Prosecution of Offences Act 1985 permits a private prosecutor to seek payment from central funds for expenses properly incurred in High Court proceedings enforcing a confiscation order. Such proceedings are civil in character, but are proceedings in respect of the indictable offence because they directly give effect to confiscation arising from conviction and sentence.

The provision does not require the proceedings themselves to be criminal. The absence of a costs-determination mechanism in the Costs in Criminal Cases (General) Regulations 1986 cannot alter that meaning. In principle, recoverable expenses may include a reasonable liability for a third party’s costs incurred in the enforcement proceedings. Reasonableness and quantum remain for determination.

Following a private prosecution for fraud, the defendant was convicted and a confiscation order was made under the Criminal Justice Act 1988. The Crown Court directed that compensation payable to the private prosecutor and another victim should take priority from sums recovered under that order.

In High Court enforcement proceedings, the prosecutor unsuccessfully alleged that transfers to the defendant’s former wife were tainted gifts. He was ordered to pay her costs. Jefford J initially held that the prosecutor’s own costs and that liability could be paid from central funds, but, after the Lord Chancellor intervened, set that order aside: [2019] EWHC 1277 (QB).

The appeal concerned whether section 17 of the Prosecution of Offences Act 1985 conferred jurisdiction to pay from central funds the costs of enforcing the confiscation order, including costs ordered against the prosecutor.

1. Appeal allowed on both issues. The majority held that the High Court enforcement proceedings fell within section 17(1)(a) of the Prosecution of Offences Act 1985 as proceedings in respect of an indictable offence. The provision required a sufficient connection with the offence, assessed in statutory context.

2. Although enforcement proceedings under Part VI of the Criminal Justice Act 1988 were civil proceedings subject to civil procedure, they arose only from the criminal conviction, sentence and confiscation order. They enabled the confiscation order to operate. Their civil classification did not justify reading into section 17 a further requirement that the proceedings must themselves be criminal.

3. The language of section 17 was express and broad. It referred to any proceedings in respect of an indictable offence and, unlike section 17(1)(b), imposed no limitation by reference to a particular court. The public-interest purposes of private prosecutions, confiscation and compensation reinforced that construction. A private prosecutor could otherwise obtain a confiscation order but be substantially deterred from enforcing it.

4. Steele, Ford & Newton established that an order against central funds requires clear statutory authority; it did not require that section 17 be confined to proceedings which were themselves criminal. The 1986 Regulations’ failure to identify a determining authority for a single High Court judge could not narrow the otherwise clear statutory jurisdiction. The court could fix the amount.

5. The unqualified term “expenses” in section 17 was capable in principle of including reasonable legal costs which the prosecutor had been ordered to pay to a successful third party. Recovery turned on proper and reasonable incurring, not success. The issue of the prosecutor’s own costs and the third party’s costs was remitted to the High Court, where the Lord Chancellor could address reasonableness and quantum.

The President of the Queen’s Bench Division agreed. The Master of the Rolls agreed on the second issue and did not dissent on the first, despite reservations.

• Court of Appeal (Civil Division): Allowed the prosecutor’s appeal and remitted the costs issues to the High Court: [2020] EWCA Civ 1260.
• High Court (Queen’s Bench Division): Set aside its earlier central-funds order and held that it lacked jurisdiction under section 17 of the Prosecution of Offences Act 1985: [2019] EWHC 1277 (QB).