Coll v Director of Public Prosecutions

Costs under section 19 of the Prosecution of Offences Act 1985 are exceptional. A failed prosecution, discontinuance, or dismissal for no case to answer does not, without more, justify an order.

The applicant must show an unnecessary or improper act or omission. Impropriety requires a clear and stark error, generally one which no reasonable prosecutor could have made. The jurisdiction must not become a collateral challenge to the decision to prosecute. Evidential deficiencies, premature charging, or rectifiable procedural breaches may be insufficient. The court should adopt a summary approach and avoid a minute examination of the evidence.

The appellant was prosecuted before magistrates for offences concerning the setting of snares and alleged unnecessary suffering to a fox. Three charges were discontinued. The magistrates dismissed the remaining charge after finding no case to answer.

The appellant sought £8,709.90 in costs under section 19 of the Prosecution of Offences Act 1985. The district judge refused the application, concluding that the prosecution decisions were within the range of decisions reasonably open to a prosecutor.

On appeal by way of case stated, the issues were whether the correct legal test had been applied and whether the prosecution involved an unnecessary or improper act or omission.

1. Appeal dismissed. The district judge had sufficiently applied the correct legal principles, although his reasoning on the authorities was unclear in form.
2. The applicable test was that summarised in R v Cornish and Maidstone and Tunbridge Wells NHS Trust, and approved by the Court of Appeal in R v M Najib & Sons Ltd (No. 2) and Asif v Ditta and another. Simply because a prosecution fails, or a defendant has no case to answer, does not satisfy section 19.
3. Improper conduct means conduct that would not have occurred if the party had conducted its case properly. The test is impropriety, not mere unreasonableness. The conduct must be starkly improper, and the jurisdiction is generally confined to exceptional cases involving a clear and stark error.
4. The application is summary. The court should not undertake a minute examination of the facts to decide whether the prosecutor’s assessment was correct. The relevant question is whether no reasonable prosecutor could have made the decision. The appellant could succeed only if no reasonable district judge could have refused the costs order.
5. The discontinuance of charges and dismissal of the remaining charge did not establish impropriety. Charging before receipt of an expert statement could be viewed as premature, but it was not capable of amounting to an improper act on these facts. The expert evidence was equivocal, and defects in another statement were capable of rectification.
6. The questions in the case stated were reformulated to reflect the correct threshold. The district judge’s decision was open to him, and he was correct to refuse the costs order.

• Magistrates’ Court: The remaining prosecution charge was dismissed after a submission of no case to answer.
• District Judge (Magistrates’ Courts): The application for costs under section 19 of the Prosecution of Offences Act 1985 was refused on 12 November 2021.
• High Court (Administrative Court): The questions were reformulated and the appeal by way of case stated was dismissed.