QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
Lord Justice Elias
Mr Justice Mitting
| R (Director of Public Prosecutions)
|- and -
|Sheffield Crown Court
|Peter Barry Goodison
Ministry of Justice
The other parties were not represented at the hearing
Hearing date: 3 April 2014
Crown Copyright ©
Lord Thomas of Cwmgiedd, CJ:
The judge's initial view of the decision to prosecute and the trial
The decision of the judge on costs
The jurisdiction of the judge to make the Order
"First, that the decision whether to prosecute or not must always be made by the Crown Prosecution Service and not the court. The court does not make prosecutorial decisions.
Second, provided there is evidence from which the jury may properly convict, it can only be in the rarest circumstances that the prosecution may be required to justify the decision to prosecute."
Does this court have jurisdiction to hear the application for judicial review and quash the Order against the CPS?
(a) The scope of s.28(2) and 29(3) of the Senior Courts Act 1981
"In relation to the jurisdiction of the Crown Court, other than its jurisdiction in matters relating to trial on indictment, the High Court shall have all such jurisdiction to make mandatory, prohibiting or quashing orders as the High Court possesses in relation to the jurisdiction of an inferior court."
"It is in any event clear, I apprehend, that certain orders made at the conclusion of a trial on indictment are excluded from judicial review as "relating to trial on indictment" not because they affect the conduct of the trial, but rather because they are themselves an integral part of the trial process. This is obviously true of the verdict and sentence. It is equally true, according to the provisional view I expressed in In re Smalley, of certain orders for the payment of costs made under the Costs in Criminal Cases Act 1973."
He continued at page 197:
"An order that a convicted defendant pay the whole or any part of the costs of the prosecution under section 4(1)(a) is appealable under the Criminal Appeal Act 1968 as part of the sentence: Reg. v. Hayden  1 W.L.R. 852. An order that the prosecutor pay the whole or any part of the costs of an acquitted defendant under section 4(1)(b) is not appealable, nor is any decision under section 3(1) either to make or to refrain from making an order for payment of costs out of central funds in favour of the prosecution or the defence. The common characteristic of all decisions made by the Crown Court under these provisions is that the court is exercising a discretion in the light of what it has learned in the course of the trial as to the nature of the case, both for the prosecution and the defence, and in the light of the conduct and the outcome of the trial itself: see the guidance given by the Practice Direction (Costs: Acquittal of Defendant)  1 W.L.R. 1383. It follows that all such decisions are so intimately bound up with the trial process that they must be treated as an integral part of it and thus must be considered as made in the exercise of the Crown Court's Jurisdiction "relating to trial on indictment" and accordingly are not subject to judicial review."
(b) The applicability of s. 28(2) and s. 29(3) of the Senior Courts Act 1981
(c) The other submissions.
The meaning "improper act or omission"
""Improper" means what it has been understood to mean in this context for at least half a century. The adjective covers, but is not confined to, conduct which would ordinarily be held to justify disbarment, striking off, suspension from practice or other serious professional penalty. It covers any significant breach of a substantial duty imposed by a relevant code of professional conduct. But it is not in our judgment limited to that. Conduct which would be regarded as improper according to the consensus of professional (including judicial) opinion can be fairly stigmatised as such whether or not it violates the letter of a professional code."
"We therefore hope that this judgment may give guidance which will be of value to criminal courts as to civil, but we fully appreciate that the conduct of criminal cases will often raise different questions and depend on different circumstances."