On 14th April 2016 the National Taxing Director issued a direction to taxing officers that costs relating to investigations carried out prior to the commencement of proceedings, are not to be allowed from central funds. Section 17 of the Prosecution of Offences Act 1985 (“the Act”) allows the Court to award prosecution costs from Central Funds. The Court can order the payment “of such amount as the court considers reasonably sufficient to compensate the prosecutor for any expenses properly incurred by him in the proceedings.”

The statutory duty to determine costs out of central funds in criminal cases rests with the National Taxing Director of the National Taxing Team (NTT). Following Orders made by District Judge Ashworth in the cases of TM Eye Ltd v Green and TM Eye Ltd v Papaphotis, on 8th April 2016 the National Taxing Director received advice from the Central Legal Team of the Legal Aid Agency (“LAA”) that the correct legal position is that investigative costs incurred before proceedings are issued, are not recoverable from central funds under a prosecution costs order made under s.17 of the Act.

The direction was as follows:

“In determining whether work has been actually and reasonably done or whether a disbursement has been actually and reasonably incurred in the proceedings in accordance with Regulation 7 sub-paragraphs (1) and (5) , determining officers are not to include work done or disbursements incurred where such work or disbursements relate to investigations carried out by or on behalf of the prosecutor prior to the commencement of proceedings.”

“The expression “commencement of proceedings” in this direction is to be interpreted as when a warrant, requisition or summons relating to the proceedings is first issued for the first appearance in the magistrates’ court regardless of whether the matter is subsequently sent for trial to the Crown Court.”

The ability of a private prosecutor to recover costs, even where the prosecution fails (as in the recent case of the ‘cycling barrister’ Mr Porter, who was awarded costs in the region of £25,000) has made the concept of private prosecutions increasingly popular. However, the direction by the National Taxing Team highlights the fact that commencing a private prosecution is not always straightforward and requires careful consideration.