Director of Public Prosecutions v The Crown Court at Inner London

The statutory costs jurisdiction for criminal proceedings is limited and exceptional. It is not a means of challenging prosecutorial decisions merely because a prosecution was weak, unsuccessful or stopped by a submission of no case to answer. The relevant question is whether no reasonable prosecutor could have decided to prosecute or continue the proceedings. The error must be clear and stark, assessed by reference to the evidence available at the charging decision and as it developed under the continuing duty of review, without hindsight. On judicial review, the question is a second-order one: whether the costs judge’s conclusion was one which no reasonable judge could have reached. Competing rational evaluations do not establish irrationality.

The Director of Public Prosecutions challenged by judicial review a Crown Court order requiring the DPP to pay £97,000 towards CKH’s costs after CKH’s acquittal on a rape charge following a successful submission of no case to answer. The order was made under section 19(1) of the Prosecution of Offences Act 1985 and Regulation 3 of the Costs in Criminal Cases (General) Regulations 1986.

The Crown Court judge concluded that the decision to prosecute was an improper act because the case had no realistic prospect of success and no reasonable prosecutor could have charged CKH. The DPP alleged error of law and irrationality, and sought to quash the order. The central issue was whether the judge’s conclusion was one which no reasonable judge could have reached.

1. Claim dismissed. The Crown Court judge’s costs order was not vitiated by error of law or irrationality. It was therefore unnecessary to determine the scope of the High Court’s jurisdiction under section 29(3) of the Senior Courts Act 1981.
2. The three-stage approach under section 19(1) requires the court to determine whether there was an unnecessary or improper act or omission, whether it caused another party to incur costs, and whether costs should be ordered and, if so, in what amount. The threshold question must be satisfied before causation and discretion arise.
3. An unnecessary or improper act does not require bad faith. The statutory test may be met where the act would not have occurred had the party conducted its case properly. However, the jurisdiction is confined and exceptional and does not penalise ordinary litigation decisions or failure at trial.
4. Where the alleged improper act is a prosecutorial decision, the question is whether no reasonable prosecutor could have made it. The court must not substitute its own assessment for that of the prosecutor. A case may be weak or unsuccessful yet remain within the range of reasonable prosecutorial judgment.
5. The assessment is anchored to the evidence available when the charging decision was made and to later developments arising through the continuing duty of review. Hindsight must be avoided. Later events may illuminate the position but cannot determine it.
6. On judicial review, the question was not whether the Crown Court judge’s assessment was correct or whether this court would have reached the same conclusion. It was whether the conclusion that no reasonable prosecutor could have charged was one which no reasonable judge could have reached. The judge identified structural evidential deficiencies concerning the timing of the complainant’s loss of consciousness, consent and knowledge, and was entitled to treat them as apparent from the outset. The existence of competing rational views did not make his conclusion irrational.
7. The judge’s reasons, read fairly and as a whole, disclosed no material inconsistency. His references to the prosecution not having acted improperly were understood as findings of no bad faith, distinct from the statutory question whether the decision to prosecute was improper.

• Crown Court at Inner London: On 14 May 2025, the judge ordered the DPP to pay £97,000 in costs after CKH’s acquittal and successful submission of no case to answer.
• High Court (Administrative Court): Permission was granted by Eady J on 16 January 2026. The judicial review claim was dismissed by Ms Justice Obi.