On 8 May 2014 the Queen’s Bench Division of the High Court handed down a Judgment relating to costs orders in criminal cases; The Queen (on the application of Maninder Singh) v Ealing Magistrates Court and the CPS.

A case progression unit failed to transfer relevant prosecution case papers between the police and CPS. The defendant (who was privately paying) and his legal representatives attended Court only for the hearing to be adjourned off to a later date as a direct result of the failure. The defence consequently applied for payment of their costs by the prosecution.

The application was refused by the Magistrates’ Court, largely because the Judge considered the relevant statutory test in section 19 of the Prosecution of Offences Act 1985 required him to identify the “party at fault” for the mistake.  The High Court disagreed, noting that all too often in such circumstances the police and CPS end up pointing respective fingers of blame at one another. For the purposes of section 19 they decided that no distinction can be drawn between the “police” and “CPS” and that they collectively fall under the unifying umbrella of “The Crown”. The party concerned was therefore clearly identified and the Judge’s reasoning was found to be an error of law.

In addition, and particularly of note for defence practitioners, a submission by the CPS that costs should not be awarded as the mistake in question was an “isolated incident” was rejected. The Court pointed out that “there is no doctrine in this area that every dog is entitled to one bite.”  Therefore, if an act or omission is the result of a party not conducting his case properly, a judicial discretion arises to award costs to the other party.  This does not become a duty and if there is a “satisfactory explanation” for a mistake the court may decide that it would not be just to make any order. In the instant case however, none existed, and the order was made for the Crown to pay the defence costs.

The discretion to award costs cuts both ways; the defence are rendered as vulnerable to wasted costs as the prosecution if mistakes are made and hearings aborted. However, when properly prepared and ready to proceed defence practitioners may now feel they can argue more robustly for costs even where the issue is a “single mistake”.

Co-author: Alexandra Matthews