AB, R (on the application of) v Uxbridge Youth Court

Costs arising from a claim concerning a prosecution remain subject to the criminal costs regime where the underlying proceedings are in a criminal cause or matter. The proceedings retain that character when challenged by judicial review.

The civil costs jurisdiction under section 51 of the Senior Courts Act 1981 is available only in exceptional circumstances. The case must be taken outside the ordinary run of criminal cases, and the reasons for departure must be compelling. A legally flawed prosecutorial decision, including an error in applying prosecutorial guidance, does not by itself make a case exceptional or establish an improper act for the criminal costs regime.

The claimant, a child and an accepted victim of human trafficking, faced prosecution for robbery and two batteries. He challenged the refusal of the Youth Court to stay the proceedings, indirectly challenging the Director of Public Prosecutions’ decision to prosecute.

The DPP accepted that the prosecutor had applied the adult rather than the child test in the relevant guidance. He agreed to withdraw the challenged decision, reconsider the prosecution decision and permit withdrawal of the claim. The remaining issue was whether the claimant should receive his costs under the civil regime or whether the criminal costs regime applied.

1. Criminal character of proceedings. The claim concerned a routine prosecution and a challenge to the refusal of a stay in criminal proceedings. It was therefore proceedings in a criminal cause or matter. That character was not lost because the challenge was brought by judicial review, nor because the underlying decision concerned whether prosecution was in the public interest.
2. Applicable costs regime. Under section 51 of the Senior Courts Act 1981, the High Court’s costs discretion is subject to the preservation of the practice in criminal causes. The principle in Murphy v Media Protection Services Ltd required the criminal costs regime to apply unless exceptional circumstances justified use of the civil regime. Exceptional circumstances meant features taking the case outside the ordinary run of criminal cases. The reasons for departure had to be compelling.
3. No exceptional circumstances. A routine prosecution, including one challenged on public-law grounds and later conceded for reconsideration, was not exceptional. The fact that the prosecutorial decision was legally flawed did not alter that conclusion. A prosecutor remains a minister of justice and must have appropriate leeway when making prosecutorial decisions in the public interest.
4. Section 19 costs. The error in applying the child guidance was insufficient to establish an unnecessary or improper act. There was no suggestion of bad faith, no finding that the prosecution decision was one which no reasonable prosecutor could have made, and no concession that the prosecution should never have been brought. The high threshold illustrated by Evans (No 2) and the statutory wording of section 19 remained distinct from the existence of a public-law error.
5. Order. The claimant was permitted to withdraw the judicial review claim. His application for costs was dismissed because the criminal costs regime applied and the High Court had no power under that regime to order the DPP to pay the claimant’s costs.

This was a first-instance judicial review claim in the Administrative Court. The claim was permitted to be withdrawn after the DPP agreed to reconsider the prosecution decision.