Regina (Macmillan Cancer Support) v Andrews

Compensation from central funds under section 17 of the Prosecution of Offences Act 1985 must be reasonably sufficient to compensate expenses properly incurred. A costs assessor must evaluate the work actually required, rather than apply terminology or assumptions drawn from a different remuneration scheme.

Where investigators attend on separate occasions to interview different witnesses, the later attendance may be justified. The appropriate remuneration may reflect which investigator’s time and expense provides the reasonable measure, including relevant geographical considerations. Counsel’s fees for separate hearings should be assessed on their own merits. They should not be artificially reduced because a hearing is not the main trial hearing. Preparation time should likewise be allowed where the work undertaken reasonably justified it.

Macmillan Cancer Support, acting as a private prosecutor, appealed under regulation 10 of the Costs in Criminal Cases (General) Regulations 1986 against a determining officer’s assessment of fees payable from central funds under section 17 of the Prosecution of Offences Act 1985.

The appeal concerned one investigator’s return attendance to interview further witnesses and three items of counsel’s fees: two court appearances and two hours of trial preparation. The central issues were whether the attendances and work were properly incurred and what constituted reasonable compensation.

1. Appeal allowed. The determining officer’s decision was based in part on the mistaken premise that the second investigator attendance involved finalising statements from previously interviewed witnesses. It concerned interviews with further witnesses. One investigator’s attendance was therefore justified and compensable.

2. Although both investigators attended, the appropriate measure for remuneration was the time and expense of the investigator who lived nearer to Norwich. The starting locations of the investigators could not be ignored when assessing reasonably sufficient compensation from central funds. The fee in line 12, rather than line 13, was allowed.

3. The determining officer had apparently used the expression “basic fee” from the graduated fee scheme under the Criminal Legal Aid (Remuneration) Regulations 2013. That terminology did not apply under the Costs in Criminal Cases (General) Regulations 1986. Each hearing in a privately paid prosecution required assessment on a substantially stand-alone basis. The two fees of £600 for the magistrates’ court appearance and PTPH hearing were reasonable and should not have been reduced because they were treated as subsidiary hearings.

4. Travel to and from court may form part of the assessment of an appropriate brief fee, even though a separate travel fee is unusual. Time allowed for travel should not automatically be removed from the brief fee calculation.

5. The two hours of trial preparation were reasonably required. They included consideration of the defence statement, the alleged loss of the money in transit, and a potential bad-character application arising from separate CPS proceedings. The possibility of a pandemic-related adjournment did not justify reducing the work where counsel needed to be ready for trial at short notice. The claimed £500 was allowed.

6. The court made no formal determination on the hourly rate, although it noted a possible issue concerning the Evans v Serious Fraud Office ceiling. Macmillan was successful on all aspects of the appeal and was awarded £3,000 plus VAT for costs and the £100 appeal fee.

1. Senior Courts Costs Office: The determining officer assessed the private prosecutor’s fees and disallowed or reduced the items challenged.
2. High Court (Senior Court Costs Office): On appeal under regulation 10 of the Costs in Criminal Cases (General) Regulations 1986, Costs Judge Rowley allowed the challenged items and awarded the appellant its appeal costs.