Director of Public Prosecutions v Northampton Magistrates' Court

In a judicial review concerning a criminal cause or matter, the court has a choice between the criminal costs regime and the civil regime under section 51 of the Senior Courts Act 1981. The criminal regime applies unless the circumstances are exceptional. A statutory restriction preventing recovery in the particular circumstances does not make that regime inapplicable. It may instead disclose a lacuna which the court cannot fill by extending its civil costs jurisdiction. The reasoning in Hargreaves was confined to an appeal by way of case stated where only one costs scheme was available.

The Director of Public Prosecutions successfully sought judicial review of a district judge’s costs order made after criminal proceedings were dismissed. The Administrative Court held that the district judge had erred in ordering costs against the prosecution. The court then considered whether it had power to award the Director’s costs of the judicial review.

The issue was whether the criminal costs regime under the Prosecution of Offences Act 1985 applied, or whether costs could instead be awarded under section 51 of the Senior Courts Act 1981, because the criminal regime did not permit recovery by a public authority prosecutor.

1. The application for an order awarding the claimant its judicial review costs was dismissed. The court had no power to award those costs in the circumstances.

2. Judicial review proceedings concerning a criminal cause or matter remain criminal in character for costs purposes. The authorities establish a choice between the criminal costs regime under the Prosecution of Offences Act 1985 and the civil regime under section 51 of the Senior Courts Act 1981. The criminal regime applies unless the case or circumstances are exceptional. This approach originated in Murphy v Media Protection Services and was applied in R (Bahbahani) v Ealing Magistrates’ Court and R (AB) v Uxbridge Youth Court.

3. The fact that the criminal regime permits prosecution costs only in defined circumstances, and excludes public authorities under section 17(2)(a) of the 1985 Act, does not mean that the regime is inapplicable. It means that the regime makes no provision for costs in the circumstances which arose.

4. Hargreaves v Powys County Council concerned an appeal by way of case stated. In that context, the court considered section 28A(3) of the 1981 Act to be the only available scheme for the prosecutor. That reasoning did not displace the general exceptionality approach in judicial review claims involving criminal matters.

5. The possible gap in the criminal costs regime did not justify extending the civil costs jurisdiction. As explained in R (Morjaria) v Westminster Magistrates’ Court, it was for Parliament, rather than the court, to fill any such lacuna.

The claimant had previously succeeded in judicial review proceedings challenging the district judge’s costs order. The present judgment determined the consequential question of whether the claimant could recover its costs of that judicial review. The judgment does not identify a citation for the earlier decision.