Neutral Citation Number: [2011] EWCA Crim 1130
Case No: 2011/1467/B5
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Thursday, 7 April 2011
 
B e f o r e:

THE VICE PRESIDENT
(LORD JUSTICE HUGHES)
MR JUSTICE TREACY 
 
MR JUSTICE EDWARDS‑STUART 
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R E G I N A 

v 

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APPEAL UNDER SECTION 3C COSTS IN CRIMINAL CASES REGULATIONS 1991 
 
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Computer Aided Transcript of the Stenograph Notes of  
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Mr A Edis QC appeared on behalf of the Appellant Crown 
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J U D G M E N T (As Approved by the Court)
1.	THE VICE PRESIDENT:  At the conclusion of a Crown Court trial in which the defendant was acquitted by the jury, the judge made an order that the Crown Prosecution Service pay costs.  It is clear that he did so because he disagreed with the decision either to mount or to continue the prosecution.  The Crown Prosecution Service appeals.  
2.	The judge had given notice at the end of the trial that he had it in mind to make a costs order and he had adjourned to give the Crown Prosecution Service the opportunity to consider the position and attend to make representation.  There was a hearing about four weeks later.  At the conclusion of that hearing the judge announced his decision in the following terms:  
"In my judgment, this case proceeded either because no thought or no proper thought was given to it and/or for reasons of political correctness and/or of fear of criticism.  That is no basis upon which to proceed with a serious allegation or, indeed, any allegation of any kind of criminal conduct ... 
I find that the CPS has incurred costs by way of unnecessary act, the bringing of this case at all.  I direct that it pays for the costs of this case in its entirety.  Effectively, that means costs incurred by the defence at the Crown Court and those incurred by the defence solicitors.  
The costs incurred at the Crown Court have been considered by the court staff and, in round figures, are £3,000.  The solicitors' costs should be ascertained and paid so long as they are reasonable."
3.	Subsequently, the Crown Court issued not one but two letters purporting to incorporate this order.  The first directed the Crown Prosecution Service to pay £3,000 to "HMPG Woolwich Crown Court."  It would appear that what was intended to be comprised there were legal aid fees payable to defence counsel which would have been paid no doubt via the Crown Court.  The second letter directed the Crown Prosecution Service to pay £6,229.38 to the solicitors who had acted for the acquitted defendant under a representation order, which is to say on legal aid.  
4.	Both of those letters bore the date 13th January 2011 which was the day of the hearing and of the ruling which we have quoted.  In fact at least the second letter must have been written subsequently because it is apparent from the ruling that as at 13th January the amount of the solicitors' costs was not known.  It may be, however, that the letters carried the date that they did because that had been the date of the judge's ruling.
5.	Neither order identified the statutory power under which it had been made.  A subsequent written request to the Crown Court elicited the response by telephone that the order had been made under section 19A of the Prosecution of Offences Act 1985.  No written document has ever identified the power.
6.	Leaving aside orders for the payment of costs of an acquitted defendant from central funds and orders for the payment of prosecution costs, there are three separate powers which the statute provides which might be applicable in this kind of situation.  It is not necessary to set out the terms of the statute in full.  They amount to these:  
1.  Under section 19A of the Prosecution of Offences Act 1985 an order may be made against a legal representative that he pay "wasted costs".  Wasted costs are costs incurred as a result of improper, unreasonable or negligent act or omission on the part of any representative or the employee of any representative.  This is the power which according to the oral notification issued by the Crown Court, which was presumably on the authority of the judge, the judge was purporting to exercise.  A legal representative is however fully defined in the section.  It means "a person exercising a right of audience or a right to conduct litigation on behalf of a party".  In the context of a criminal case, the parties are the Crown on one side and the defendant on the other.  The legal representative is the advocate or litigator appearing or acting for one or other of those parties.  In other words, in very simple terms this power to make wasted costs is a power exercisable against a lawyer personally.  
2.  Under section 19 of the same Act and Regulation 3 of the Costs in Criminal Cases (General) Regulations 1986, 1986/1335 made under that section, an order may be made that one party pay the costs of the other party to criminal proceedings.  Such an order may be made when the judges is satisfied that the costs in question have been incurred by party A as a result of "an unnecessary or improper act or omission by or on behalf of" party B.  
3.  Under section 19B of the 1985 Act, an order may be made against a "third party" that he pay the costs incurred by any other party to the proceedings.  This order can be made only when the third party has been guilty of "serious misconduct".
7.	It can thus be seen that the conditions for the making of such orders vary, as does the person against whom the order may be made.  For this reason, as well as on the ordinary principle which requires any court order to be securely anchored to the power which authorises it, it is essential that the order identify the power being invoked.  The Criminal Procedure Rules 2010 expressly so provide at 76.2(4):  
"If the court makes an order about costs, it must—
 (a) specify who must, or must not, pay what, to whom; and
 (b) identify the legislation under which the order is made, where there is a choice of powers." 
8.	This order or orders comprehensively failed to make any attempt to meet those requirements as to identifying the power.  We have asked ourselves whether it is nevertheless clear which power was being exercised.  
9.	There can clearly be no question of the third power under section 19B applying.  The order was made against the Crown Prosecution Service which was a party to the trial and not a third party.  
10.	If the order was of the first kind, made under section 19A, as the Crown Court, apparently on the authority of the judge, has asserted and as the reference in the two letters to "wasted costs" would appear to suggest, then such an order is simply beyond the judge's power for the very elementary reason that the Crown Prosecution Service is a party and not a legal representative acting for a party.  
11.	Other language used by the judge might suggest rather an order of the second kind, that is to say under section 19, regulation 3.  This however is not the power which has expressly been invoked.  It is true that an order that the Crown Prosecution Service pay the costs of defence counsel and defence solicitors might be framed in a way which qualified as a party and party order, if that second power had been invoked.  On this hypothesis, however, and that is all it can be in this case, the order would still suffer from three significant defects.  First, it could only be made payable to a party, namely the defendant.  No doubt, however, if such an order were regularly and justifiably made the legal aid authorities would take steps to recover the costs paid and it would be right to make a provision for payment in the first instance either to the solicitors or some identifiable fund, in order to ensure that the money did not get lost in transit.  This, however, was plainly simply never considered.  Second, the amount of the solicitors' costs was clearly not specified by the judge, nor was it ever quantified by him although regulation 3(3) requires this.  Third, the Crown Prosecution Service never had any opportunity as prospective payers to make any representations as to the amount of the second sum, the solicitors' costs.  We accept that by itself the last defect might, if it had stood alone, have been capable of being cured, if, as we suspect, the costs are assessed by the relevant authorities on the basis of reasonably clear scales and if that had been the only defect no doubt the Crown Prosecution Service could and would have asked for an opportunity to make representations.
12.	It needs to be said that the difference between the statutory powers is also significant for the mechanisms available for challenging any order.  An order of the first kind under section 19A is challengeable by way of appeal to this Court by the legal representative: see regulation 3C of the same regulations.  By contrast, a party against whom an order of the second kind, under section 19 and regulation 3 is made, has no such right of appeal.  His method of challenge would have to be by application for judicial review on the grounds that the order was defective in law.  That is another reason why it is essential that the power which is being exercised must be identified.
13.	More generally, the making of a costs order against the Crown in circumstances such as this is a very serious and unusual matter.  That it should be exercised even after adjournment in a manner which is, on any view, thoroughly flawed throughout is a matter of the greatest regret.  Moreover, we are satisfied that this is an order which should never have been made.  The decision to prosecute or not is a thoroughly difficult and delicate one.  It is one on which two perfectly responsible lawyers may easily differ.  It is only in the clearest possible cases that a decision taken by the appropriate authority in good faith could possibly justify a penalty in costs.  
14.	We accept that there did exist in this case a number of potentially quite strong indicators which might, and possibly for all we know which should, have led the decision maker within the Crown Prosecution Service to reach the opposite conclusion from the one that she did:  
A.  The allegation was rape and the issue consent.  There were a number of indications in the complainant's behaviour which might be argued to suggest consent, but those were probably equivocal and of the kind which will exist and be the subject of argument in a great many cases.  However, a statement had also been taken from an older man who lived in the flat where the offence was said to take place.  He was there at the time of the alleged offence.  His evidence directly contradicted the complainant's assertion that she had screamed loudly.  Further, he said that some time after the relevant act of sexual intercourse the couple had been found sleeping peacefully and apparently affectionately together.  That evidence was also quite inconsistent with what the complainant said had happened.  The Crown had disclosed his statement (properly) but they must therefore have anticipated that he would be called on behalf of the defendant, as indeed he was.  Most people would, we think, conclude that this evidence, unless of course there was reason to doubt it, made acquittal more likely than conviction.  
B.  Crown counsel had advised that in her view the prosecution was unlikely to result in a conviction.  It is a matter of no little regret that when the Crown Prosecution Service was invited by the judge to explain the position, it did so by means of a letter which did not state that this advice was given, nor did it decline to reveal whether it had been given or not, as might have been permissible; rather it carried the implication that there had simply been a discussion between counsel and the lawyer which did not involve such advice.  The decision is no doubt that of the lawyer within the Crown Prosecution Service.  It is possible no doubt for a trial advocate sometimes to be cautious about the likely outcome of a pending trial.  However, counsel is instructed for his or her trial experience which will not necessarily be shared by the decision‑making lawyer.  Her considered opinion was highly relevant and it ought to have been accorded considerable weight.  
C.  Contrary to the submission which we understand to be made in writing on behalf of the Crown Prosecution Service, the fact that the judge determined, correctly, at the conclusion of the Crown case that there was a case to answer does not demonstrate that the decision to proceed with the prosecution had been right.  As the Code for Crown Prosecutors makes very clear, the decision whether to prosecute involves an examination of the evidence as a whole and, critically, an assessment of whether a conviction is more likely than not ‑ see paragraphs 4.5 and 4.6 of the Code.  When a judge is deciding whether there is a case to answer, he is applying a wholly different test ‑ see R (B) v Director of Public Prosecutions [2009] EWHC 106 (Admin), [2009] 1 WLR 2072 at paragraphs 47 and 48.  The judge is taking the Crown evidence ‑‑ and in a case like this that means the evidence of the complainant ‑‑ at its highest.  Absent a case of evidence which no reasonable jury could possibly believe, the judge is not entitled to ask himself whether or not the jury is likely to accept the evidence.  That, however, is exactly the question which a prosecutor is required by the Code to address.  The prosecutor, in other words, is not doing her job properly if she simply says to herself "If the complainant is believed this is rape" and thinks no further.
15.	That said, the question in this case was not whether the decision to prosecute was right or wrong.  It is simply not the judge's function to sit on appeal from a decision of the Crown Prosecutor.  There may be very rare cases where the decision is wholly unreasonable.  R (Oddy) v Bugbugs Ltd [2003] EWHC 2865 (Admin) was a different case altogether.  That prosecution was brought by a private interest group in pursuit of a commercial objective.  The point at issue was one of pure law.  It had been decided previously against the prosecution.  There could have been a challenge to the ruling by way of appeal to the High Court but there had been none.  Unlike that case, in most cases such as the present, there will be room for a legitimate difference of opinion.  It is important that the making of that decision should not be overshadowed by the fear that if a prosecution is continued and fails there may be an order for the payment of costs.  An acquitted defendant will normally receive his costs from central funds unless there is a good reason why he should not.  We do not say that there will never be a case where a decision to prosecute is so unreasonable that a costs order is appropriate, but we are satisfied that this case was not arguably such.  Here, the complainant's evidence might have been assessed as likely to be accepted.  The flatmate's evidence might have been assessed as capable of disbelief.  There was, we note, some material which perhaps suggested possible partiality.  There were, it was said, some possible injuries to the complainant.  We want to make it clear that we simply do not know whether the decision to prosecute was right or wrong.  It is clear that it was made in good faith.  Supposing, however, that it was a wrong judgment on a difficult issue, that is not enough to justify an order for costs and it would not have been even if the relevant powers had been properly considered.  The judge's pejorative reference to political correctness was ill conceived and inappropriate.  There was no basis for his conclusion that no thought had been given to this case.  
16.	Accordingly, we allow the appeal and quash the orders apparently made without jurisdiction under section 19A.  In order finally to resolve this matter and to avoid the need for expensive separate proceedings, we agree to the application to us to sit as a Divisional Court of Queen's Bench.  All possible parties to the Crown Prosecution's application for judicial review have been notified that we might be asked to do so and none wishes to make any representations against our doing so, or against a grant of judicial review and an order quashing any order, if it was made under section 19.  On the undertaking of the Crown to lodge a claim form for judicial review within 48 hours of today, we abridge all time limits, we grant permission to move for judicial review and on the application we quash any order that was made, if it was, under section 19 of the Prosecution of Offences Act.