Chapter 4 Corp Dba Supreme, R (on the application of) v The Crown Court at Southwark

An order is determined by what the judge pronounced in open court. A later formal order may be corrected if it fails accurately to record that pronouncement, but the court cannot use correction to alter the substance of the original order after its power to vary it has expired.

A direction that a determining officer should have regard to Crown Prosecution Service rates is guidance when assessing what is reasonably sufficient to compensate a private prosecutor. It does not constitute a restriction under section 17(2A) of the Prosecution of Offences Act 1985 unless the order specifies the reduction or the means by which it is to be calculated.

After convictions following a private prosecution, the Crown Court ordered payment of the prosecutor’s costs from central funds. The formal order stated that the amount would be determined, while the judge said that the determining officer should have an eye on Crown Prosecution Service rates.

Thirteen months later, the judge purported to correct the order by stating that costs were capped by reference to those rates. The prosecutor sought judicial review, arguing that the judge had no jurisdiction to make a substantive change after the 56-day slip-rule period. The central issue was whether the later order corrected the record or changed the original order.

1. Claim succeeded. The order made on 19 July 2022 was made without jurisdiction and was quashed. The order pronounced in open court on 25 June 2021 remained extant.
2. Under the principles stated in R v Kent [1983] 3 All ER 1, the order of the court is what the judge pronounces in open court. Court staff must record that pronouncement accurately. The formal order did not accurately record the June 2021 order insofar as it referred to investigation costs and omitted the judge’s observations concerning Crown Prosecution Service rates.
3. The judge’s words that the determining officer should have an eye on Crown Prosecution Service rates rather than anything else did not specify a restriction as required by CPR 45.4(7). They directed the officer to take those rates into account when assessing what was reasonably sufficient under section 17(1) of the Prosecution of Offences Act 1985. They did not impose a cap under section 17(2A).
4. The judge’s later intention was irrelevant. The meaning and effect of the June order had to be determined from what he said at the time. The later order imposed a substantive restriction, rather than correcting an error. The judge’s power to vary the order under section 385 of the Sentencing Code 2020 had expired.
5. The jurisdictional error was sufficiently grave to make the decision amenable to judicial review, despite its connection with a trial on indictment. The failure to comply with CPR 45.4(4)(b) did not justify refusing relief, although it remained relevant to costs.
6. Despite success on the claim, there was no order for costs. The prosecutor’s procedural failures materially contributed to the later dispute, and the opposing party had acted reasonably.

• Crown Court at Southwark: on 25 June 2021 ordered payment of prosecution costs from central funds. On 19 July 2022 it purported to record a restriction by reference to Crown Prosecution Service rates.
• High Court (Administrative Court): the claim for judicial review succeeded. The 19 July 2022 decision and consequent order were quashed.