R v BDI & Ors

A private prosecutor has no legal duty to report suspected offending to the police or CPS, or to invite the CPS to take over. That does not determine the amount recoverable from central funds. In a significant private prosecution, the court should consider the opportunity given to state prosecuting authorities and the steps taken to test the market for legal representation. Failure to do so may justify refusing costs or reducing them under section 17(2A) of the Prosecution of Offences Act 1985. The court must distinguish between properly incurred expenses and the further question whether full recovery is inappropriate. Where the private prosecution was reasonable, privately funded market rates may be relevant, although CPS rates may still inform the assessment. Here, costs were awarded but capped at the expenses which the CPS would have incurred.

Private prosecutors appealed under section 58 of the Criminal Justice Act 2003 after a Crown Court judge stayed prosecutions for conspiracy to defraud and money laundering as an abuse of process. The Court of Appeal allowed the substantive appeal and permitted the proceedings to resume. It then considered the prosecutors’ application under section 17 of the Prosecution of Offences Act 1985 for costs from central funds incurred in resisting the stay application and conducting the appeal. The central issues were whether costs should be awarded, how the court should assess the reasonableness of legal expenditure, and whether the award should be reduced because the police and CPS had not been given a proper opportunity to prosecute.

1. General entitlement. Section 6 of the Prosecution of Offences Act 1985 preserves the right to bring a private prosecution. There is no duty first to approach the police or CPS, and the CPS has a power, rather than a duty, to take over. Section 17 nevertheless gives the criminal court a discretion to award costs from central funds, including costs of a discrete application or appeal before trial.
2. Statutory sequence. The general rule is that a section 17(1) order should be made unless there is good reason not to do so. The court must first decide whether to make an order, then identify the sum reasonably sufficient to compensate for properly incurred expenses, and finally consider whether section 17(2A) makes it inappropriate to award that full sum. A reduction does not require misconduct. The later assessment of individual items does not replace the court’s prior decision on reduction. This approach was applied in R (TM Eye Ltd) v Crown Court at Southampton [2021] EWHC 2624 (Admin).
3. State authorities and the market. In a significant private prosecution, the court must consider whether the police or CPS had a reasonable opportunity to make an informed decision and what steps were taken to test the market for solicitors and counsel. R (Virgin Media Ltd) v Zinga [2014] EWCA Crim 1823 was applied, but its guidance was not treated as an inflexible rule. The reasonableness of choosing particular representatives is objective and includes comparison with the relevant market. Existing involvement in related work may support the choice, but its force is reduced where the state authorities were not given a proper opportunity.
4. Rates and outcome. Where a private prosecution was reasonable, costs should ordinarily be assessed by reference to the private market rather than solely to CPS rates. CPS rates may nevertheless be relevant where the prosecutor acted without regard to the state’s willingness or ability to prosecute, and may remain relevant in cases commonly prosecuted by the CPS. The prosecutors had failed to show that the CPS could not or would not have prosecuted and had not tested the market. The court therefore ordered payment from central funds, reduced under section 17(2A) so that the award did not exceed the expenses which the CPS would have incurred. The amount was remitted for determination by the Registrar or a determining officer under Part III of the Costs General Regulations.

• Crown Court: stayed the prosecutions as an abuse of process.
• Court of Appeal (Criminal Division): allowed the substantive appeal and ordered that the proceedings could resume. On the costs application, it made a section 17(1) order but directed a section 17(2A) reduction and remitted quantification to the appropriate authority.