Director of Public Prosecutions, R (on the application of) v Manchester City Magistrates’ Court (Consequential Matters)

Where Convention rights are engaged in an individual prosecution under section 4A of the Public Order Act 1986, the statutory offence and defence must safeguard those rights in the individual case. The certified issue is therefore whether that safeguard requires a fact-sensitive proportionality assessment.

Exceptional circumstances may justify applying the civil costs regime to judicial review proceedings arising from a criminal matter. Relevant circumstances include test-case treatment, substantial legal resources, far-reaching legal issues, shifting prosecutorial positions, and the successful parties’ need to respond fully to the prosecution’s case.

This was a consequential judgment following the Main Judgment in [2023] EWHC 2938 (Admin). The prosecution sought certification of a point of law and leave to appeal to the Supreme Court. The interested parties, who had been acquitted, sought their costs of the judicial review proceedings.

The central issues were whether the proposed point concerning proportionality was a point of law of general public importance involved in the decision, whether leave to appeal should be granted, and whether exceptional circumstances justified a civil costs order.

1. The court granted certification of the proposed question: whether a magistrates’ court trying a person for an offence contrary to section 4A of the Public Order Act 1986, where rights under Articles 10 and/or 11 of the Convention are engaged, must conduct a fact-sensitive proportionality assessment. The statutory conditions were satisfied because the question was a point of law, was of general public importance, and was involved in the decision.

2. Leave to appeal to the Supreme Court was refused. The court rejected the submission that the relevant authorities were in tension. The certified question proceeded on the important premise that Convention rights were engaged in the individual case. The prosecution accepted that the ingredients of the offence and the defence must properly safeguard those rights. That required safeguarding in the individual case, and no alternative safeguarding test to proportionality had been identified.

3. The interested parties were awarded their costs of the judicial review proceedings under section 51 of the Senior Courts Act 1981. Exceptional circumstances took the case outside the usual run of criminal causes or matters and justified applying the civil costs regime. The case had been treated as a test case, involved substantial legal resources and far-reaching issues, and required the acquitted interested parties to respond to shifting prosecutorial positions and a misconceived application to state a case.

4. Payment on account of £20,000 was ordered for each interested party, payable within 28 days. Execution of the costs orders was stayed pending determination of proceedings in the Supreme Court.

• High Court (Administrative Court): consequential matters determined following the Main Judgment at [2023] EWHC 2938 (Admin).