Jason Huggitt, R (on the application of) v The Crown Court at Winchester

A prosecution costs order under Prosecution of Offences Act 1985 and the Criminal Procedure Rules 1998 requires a high threshold. The prosecution conduct must involve stark impropriety or an unnecessary act or omission that is readily established without extensive investigation.

A reasoned Crown Court ruling will not be amenable to judicial review merely because aspects of the prosecution could have been clearer, more focused or competently drafted. The question is whether the decision falls outside the range of reasonable decisions. Where the lower court has carefully analysed the prosecution’s conduct and applied the correct legal test, a renewed permission application will fail absent a realistic prospect of demonstrating public law unreasonableness.

The claimant sought judicial review of a ruling by HHJ Morris dated 31 March 2023. The ruling refused his application for prosecution costs following criminal proceedings arising from an illegal entry at Marwell Zoo.

The claimant argued that there had never been evidence supporting the charges and that the prosecution had acted improperly or unnecessarily. Permission was refused on the papers by Sir Duncan Ouseley. The claimant renewed the application before Fordham J. The central issue was whether the Crown Court’s ruling was arguably unreasonable in the public law sense.

1. The renewed application for permission to seek judicial review was refused. There was no realistic prospect that the Court would overturn the Crown Court’s ruling for public law unreasonableness.
2. The statutory test under section 19(1) of the Prosecution of Offences Act 1985 and rule 45.8 of the Criminal Procedure Rules 1998 required costs to have been incurred as a result of an unnecessary or improper act or omission by the prosecution. The threshold was high. The conduct had to be starkly improper, with the impropriety capable of being established without any great investigation into the facts or decision-making process.
3. HHJ Morris had correctly directed herself in law and had conducted a clear and careful analysis of the investigation and proceedings. Her conclusions that the investigation was not unnecessary, that allegations of impropriety were unfounded, and that any lack of clarity or focus in the drafting of charges fell well short of the statutory threshold were rationally open to her.
4. The prosecution’s continuing review of the evidence, including its decisions not to pursue particular charges, did not disclose arguable unreasonableness. The differing positions of the co-defendants and the claimant’s decision to give a no-comment interview did not alter that conclusion.
5. There was no need or utility to determine the scope of judicial review of the Crown Court because the claim was unarguable on the alleged unreasonableness.

• High Court (Administrative Court): Permission was refused on the papers on 23 May 2024 by Sir Duncan Ouseley. On renewal, Fordham J refused permission on 30 January 2025.
• Crown Court at Winchester: HHJ Morris refused the claimant’s application for prosecution costs on 31 March 2023.