London, WC2A 2LL
B e f o r e :
(LORD JUSTICE HUGHES)
MR JUSTICE TREACY
MR JUSTICE EDWARDS-STUART
|R E G I N A|
APPEAL UNDER SECTION 3C COSTS IN CRIMINAL CASES REGULATIONS 1991
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"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."
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".
"If the court makes an order about costs, it mustó
(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."
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  EWHC 106 (Admin),  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.