Kieran Gray v R

The Court of Appeal has jurisdiction to order payment of costs out of central funds even when leave to appeal has been refused. That jurisdiction is discretionary. For ordinary applications for leave to appeal, the practice is not to make such an order in the normal course. A particular reason is required, assessed in all the circumstances. The same approach applies to applications under section 16 A of Criminal Appeals Act 1968 concerning hospital orders. Effective representation and assistance alone will not necessarily amount to a particular reason. Here, the court was satisfied that the leave application should fail and refused the costs application.

After refusing leave to appeal against sentence, the Court of Appeal considered counsel’s written application for her costs to be paid out of central funds. Counsel had acted for the applicant both below and in the Court of Appeal, although the Crown Court had not formally appointed her. She relied on R v Roberts [2019] EWCA Crim 1270, where costs had been awarded despite refusal of leave.

The central issues were whether the court had jurisdiction to make such an order and what principles governed the exercise of that jurisdiction.

The application for payment of costs out of central funds was refused.

1. The Court of Appeal confirmed that it had jurisdiction to award costs out of central funds notwithstanding that leave to appeal had been refused. R v Roberts [2019] EWCA Crim 1270 demonstrated that such an order could be made. On the facts of that case, including the Registrar’s erroneous grant of a legal aid representation order, costs had been awarded even though leave was refused. The earlier decision did not identify the factors governing such applications.
2. The jurisdiction is discretionary. The principles governing standard applications for leave to appeal also apply to applications under section 16 A of the Criminal Appeals Act 1968, where the Crown Court has made a hospital order.
3. In cases falling within section 11(1), the ordinary practice is not to award costs out of central funds. A particular reason is required before departing from that practice, assessed in all the circumstances.
4. No particular reason existed here. Although counsel had represented the applicant valiantly and assisted the court, the court was in no doubt that the application for leave should fail. Those circumstances did not justify a costs order.

• Court of Appeal (Criminal Division): Leave to appeal against sentence was refused on 31 October 2023. The written application for costs out of central funds was refused on 1 November 2023 in [2023] EWCA Crim 1285.
• Ipswich Crown Court: The underlying proceedings were before HHJ D Pugh.