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Costs

Guidance

The scope of Prosecution Costs

Prosecution Costs exclude the costs of the investigation, which must be met by the police. Investigation costs include:

  • Obtaining sufficient evidence either at the initial stage or later at CPS request;
  • Re-interviewing witnesses;
  • Seeking medical or expert evidence as part of the investigation, (where a witness is required to attend Court, the cost of the attendance falls on the CPS).

This is now set out in the Criminal Costs Practice Direction which provides at paragraph 3.7 that:

"Generally it will not be just or reasonable to order a defendant to pay costs of investigation which the prosecutor itself will not satisfy."

Where police provide assistance in providing items in the Prosecution process, the cost falls on the CPS e.g. although the cost of providing initial material to review the case falls on the police, if they were to provide extra copies for the purpose of court presentation this cost will fall on the CPS.

The CPS can only apply to recover costs directly incurred. It cannot recover costs incurred by any other agency. Fees, costs and other expenditure incurred by the police, including the cost of bringing absconders from bail to the court, must not be included in the CPS application. However where the CPS is going to reimberse the agency concerned and the costs are just and reasonable then they can be included within the scope of the prosecution costs application, see Balshaw v Crown Prosecution Service [2009] 2 Cr.App. R (S) 109. In this case the costs order included the fees for an accountancy report commissioned by the police. This report was not part of the initial investigation, but was commissioned after charge and might equally have been commissioned by the CPS rather than the police. Since the CPS acknowledged its obligation to pay the fees to the police, and given that the report formed an importnant part of the CPS's presentation of the case, it was just and reasonable to include it within the costs order.  This case is refered to at paragraph 3.7 of the Criminal Costs Practice Direction, concluding that:

"Where substantial research is required in order to counter possible defences, the court may also award costs in respect of that work if it considers it to be justified."

http://www.judiciary.gov.uk/publications-and-reports/practice-directions/criminal-practice-directions

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Power to award costs

Costs are usually awarded under the Prosecution of Offences Act 1985 of which the most important costs provisions are sections 18, 19 and 19A, and the Costs in Criminal Cases (General) Regulations 1986 as amended.

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Procedure

Section 18 of the Prosecution of Offences Act 1985: Applying for costs against the defendant

Under Section 18 of the 1985 Act, the Court can order the payment of costs by a convicted defendant or in the Crown Court an unsuccessful appellant and a person committed for sentence or in breach of a Court order.

The Court can order the defendant to pay such costs as it thinks "just and reasonable". The Practice Direction states that an order should be made where the defendant has the means to pay.

The prosecution application should be made before mitigation and sentence. Often the full background of the defendant will only come to light during mitigation and then the Court can make its decision.

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Good reasons for not applying for costs under section 18

An application for costs need not be made if, in the circumstances of an individual case, it would be unmeritorious or impractical. However, there are no general exceptions to the policy set out herein. A guilty plea, for example, may well affect the amount of costs to be sought; but it does not prevent you making an application.

Consider very carefully before deciding not to make an application. If in doubt, make the application.

Some examples of good reasons not to make the application are as follows:

  • Means - there is firm information on the file that the defendant is in such dire financial circumstances that the Court are likely to consider the award of costs as oppressive. The imposition of a substantial custodial sentence or other financial penalties will influence the Courts decision whether to award costs. If a long sentence, hospital order etc. is likely to be imposed then an application need not be made;
  • Other Circumstances - In exceptional circumstances an application may be inappropriate as it will cause undue hardship e.g. where it is clear that the defendant suffers from a serious physical or mental illness.

The Court will regard payment of compensation as a higher priority than prosecution costs if a defendant has limited means.

The policy of a particular Court concerning the awarding of Costs is not a good reason for not making the application. If there appears to be such a policy at a particular Court this should be reported to your line manager so that it can be taken up at a Court User Group Meeting.

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Action where no application for costs is made

  • In the Magistrates Court: make a clear and full note on the file for the decision;
  • In the Crown Court: full reasons for not making the application should be noted on the brief.

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Magistrates' Courts Act proceedings

Where the defendant has been notified of the claim the Court can award costs where there has been a written plea of Guilty under section 12 of the Magistrates Courts Act 1980. Prosecutors should make the application to the Court. Where cases are "specified proceedings" the costs are awarded to the police and not to the CPS.

Statutory limits on the courts power to order costs

There are some restrictions imposed by statute on the powers of the courts to award costs:

  • No costs should be ordered where a fine of five pounds or less has been imposed unless in the peculiar circumstances of the case the Court believes it right to do so (Section 18(4) of the 1985 Act);
  • Where a person under 17 is convicted of an offence the court cannot impose costs greater than any fine imposed. A parent or guardian can be required to pay any costs (Section 55 Children and Young Persons Act 1933).

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Calculating Prosecution Costs

The award of costs in favour of the prosecution is limited to the expenses reasonably incurred in carrying out the prosecution. In general costs should include:

  • Costs incurred through the preparation of the case by the CPS (staff costs);
  • Counsel fees and disbursements; and
  • Witness expenses.

Be prepared to provide the Court with a reasonable estimate of costs. In many cases it is impractical to maintain detailed time and costs records and in any event the defendant is generally only asked to make a contribution to costs. For that reasons tables are produced which provide assistance in calculating a) the staff costs incurred for different levels of proceedings, called Scales of Costs, and b) the advocacy cost for different levels of proceedings, called Calculation of Advocate's Fees under GFS.

In respect of the Scale of Costs, the figures take into account the hourly rate of CPS staff and relate to single defendant cases only. A 20% uplift should be applied for each further defendant. Where a case is particularly complex or the costs incurred clearly outweigh the standard amount, more can be requested.

Witness costs, counsel's fees and other specific disbursements should be added to these fees if appropriate.

It is good practice to have the guidance tables with you in Court and before the close of the Prosecution case you will need to have:

  • Calculated the costs of preparation including in the crown court, costs from the Magistrates' Court; and any Counsel's fees;
  • Calculated the number of witnesses called and estimated their expenses;
  • Noted the fees of any expert witness, which should have been calculated in advance;
  • Calculated the total costs including any items listed above.

A copy of the latest scales, witness expense allowances and expert fees can be found at :

R v Kesteven [2012] EWCA Crim 2029 held that the purpose of the cost order is to compensate the prosecutor and not to punish the defendant. Costs should not be grossly disproportionate to the fine.

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Non-Prosecution Functions

The CPS has discretion not a duty to carry out certain case related functions. Many of these are not covered by the costs regulations. However, in the legislation there may be specific reference to the award of costs. See Supplementary Functions undertaken by the CPS, elsewhere in the Legal Guidance.

Where the CPS is not a party to the proceedings but acting on behalf of the police any cost received will go to the police. Equally the police are responsible for any costs awarded against the prosecution and agreement should be reached about the liability for such orders between the police and the CPS. Usually the CPS will only normally act if it is agreed with the police that awards made against "the prosecutor" will be paid for by the police. If costs are to be paid by the police they should be given sufficient time to so.

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The amount ordered

The amount to be paid in pursuance of an order under section 18 must be specified in the order. There is no current provision for the taxation of costs orders against an accused.

Orders for costs should not be made which are beyond the means of the defendant. The general rule was that a defendant should not be ordered to pay costs in such a sum, which through lack of means, could not be paid within a reasonable period of one year. However the case of R v Olliver and Olliver, 11 Cr.App.R.(S)10, CA where fines, costs and compensation would take two and half years to pay by instalments it was held that there was nothing wrong in principle with the period being much longer than a year, provided that it was not an undue burden and so too severe a punishment, having regard to the nature of the offence and the offender.

Costs against a large company should be paid immediately or within days of the order being made.

Where the defendant has been convicted on only some of several counts, it would be wrong to order him to pay the whole of the prosecution costs, but a mathematical approach is not required (R v Splain [2010] Cost L.R. 465,CA).

Where the defendant had been convicted at a third trial of only some counts, the two previous trials had been aborted due to poor quality CCTV evidence, it was held that the judge had erred in taking a global approach to the question of costs. The defendant should not have been required to pay the costs of the abortive trials and allowance should have been made for the acquittals on some counts (R v B & Q plc, The Times, 3 November 2005, CA).

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Several defendants

Where only some of the defendants have the means to pay costs, it is wrong to divide the total prosecution costs between just them. If it is not possible to say what part of the total costs is attributable to any particular defendant, the court should divide the total costs between the total number of defendants, including those you are not in a position to pay, and to order those who can pay to pay their share only.

The defendant should pay his share of the whole of the prosecution costs notwithstanding that he came into the proceedings at a later stage than his co-defendants or that others had been charged initially.

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Costs in Higher Courts Cases

Section 28A of the Senior Courts Act 1981 provides that the Divisional Court has the power to award costs inter partes on an appeal by way of case stated and on an application for any prerogative orders and whether from or in respect of a decision of a magistrates' court or the Crown Court. Such orders are at the discretion of the court.

Where the court allows a prosecution appeal by way of case stated, it is unjust to make an order for costs against the respondent who was neither present nor represented at the hearing and who had not been asked whether she would consent to the appeal being allowed in her absence.

See Appeals to the Court of Appeal and Appeals to the Administrative Court, elsewhere in the Legal Guidance.

Costs in Extradition Cases

From 1 January 2014 prosecutors should apply the CPS Policy on Claiming Costs in Extradition Cases when claiming costs in extradition proceedings.

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Cost of transporting Prisoner Witnesses from Abroad

Where prisoner witnesses are transported from abroad the CPS is responsible for:

  • Cost of travel of the prisoner;
  • Cost of travel for the escort;
  • Subsistence for the escort during travel to the jurisdiction.

The prison service is responsible for:

  • The costs of administration;
  • The salary costs of the escorts;
  • The costs of accommodating/transporting the prisoner in this Country.

The Prison Service will invoice CPS at the initiating point for the travel and subsistence costs.

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Wasted Costs Orders

Section 19 and Section 19A of the Prosecution of Offences Act 1985.

The power to order costs against the CPS, as a party to the proceedings, is exclusively dealt with in section 19 of the 1985 Act. Section 19 means that a party to Criminal Proceedings may be ordered to pay another party's costs incurred as a result of an unnecessary or improper act or omission. Such an order may only be made in favour of another party, and cannot be made in favour of a legal representative. Accordingly an application for an order under section 19 in favour of anyone other than a party to the proceedings should be resisted. R v Bolton Crown Court [2012] EWHC 3570 (Admin) held that defence counsel was not a party to the proceedings and therefore could not recover loss of fees from the CPS for an adjourned PCMH hearing caused by the CPS not preparing the case properly.

Section 19A of the 1985 Act means that a legal or other representative can be ordered to pay costs incurred as the result of an "improper, unreasonable or negligent acts or omissions" by them or any of their employees. This is usually known as a wasted costs order. The CPS is a party, not a legal representative (see R. v P. [2011] EWCA Crim 1130. An individual prosecutor could in theory be the subject of an order under section 19A. If any such application is made the court should adjourn the case so that the prosecutor can take advice and make representations.

Where costs are asked for against the CPS the prosecutor should make sure that what is sought is an order under section 19 and should seek to avoid confusion with "wasted costs" under section 19A. The term "wasted costs" should strictly only be used for an order against a legal representative under section 19A of the Act.

The Court can also award costs which the Court think that it is unreasonable to expect a party to incur, in the light of the negligent act or omissions committed after the costs were incurred. The costs should be by way of compensation and the Court should not add to this figure to show its disapproval.

The award, which must be for a specified sum, can be made at any stage in the proceedings and should be taken into account when the Court is considering any other award of costs in the proceedings.

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When to make an application for costs under section 19 or 19A

There are three requirements before an order may properly be made under section 19:

  1. The applicant must be a party to the proceedings;
  2. There was an unnecessary or improper act or omission;
  3. The costs have been incurred as a result of that act or omission.

It is essential to make sure the court addresses these three requirements.

These three requirements were considered in detail  in R v Bolton Crown Court [ 2012] EWHC 3570 (Admin):

1. In R v Bolton Crown Court [ 2012] EWHC 3570 (Admin) the defence counsel could not recover loss of fees from CPS because they were not a party to the proceedings.

The Court commented that there was no corresponding incentive for the CPS to the Graduated Fee Scheme to ensure hearings, such as PCMH are effective. The jurisdiction to make wasted costs orders does not provide a satisfactory solution to the problem, since that involves identifying a specific CPS lawyer who is at fault, whereas the issue may simply be ( as in this case) with the overall performance of CPS.

Section 19 could not be used as a means to circumvent the problems caused by the structure of the Graduated Fee Scheme.

2. The act or omission is one that would not have occurred had the party concerned conducted the case properly, DPP v Denning [1991] 3 All ER 439.

Such an application should only be made where the act or omission relied upon is very clear.

3. The applicant may be put to proof on the causal link between any alleged default and the costs claimed. Only costs that have actually been incurred as a result of the default should be considered by the court. If costs would have been incurred within the proceedings in any event they should not be included in an order that relates to an unnecessary act or omission. In R v Bolton Crown Court the Court observed that the fact that the first PCMH was ineffective did not lead to any increase in the fee payable to counsel. A point might, however, arise if, for example, there should be a case in which there had been more than four standard appearances and an additional amount was then payable to defence counsel under the Graduated Fee Scheme in respect of a further appearance that proved to be a wasted appearance.

Applications under section 19 should be made sparingly, but there are some lapses in standards which can never be excused, for example gross inefficiency or serious impropriety. Some lapses can result in such inconvenience or substantial costs that the CPS ought to apply for costs. For example, when witnesses have attended a trial but the defence are unreasonably unable to proceed and have given no prior warning to the CPS. Or when witnesses have been required to attend completely unnecessarily.

R v SVS Solicitors [2012] EWCA Crim 319 held that defence solicitors have an overiding duty to the court and were not entitled to break the rules with impugnity. Failure to serve a defence statement was not breach of the rules, however failure to serve a cross-notice opposing a hearsay application (resulting in a prosecution witness traveling unnecessarily from Australia for the trial) was held to be deliberate breach to keep the defendant's options open and therefore the defence solicitors conduct was improper, unreasonable and negligent.

Prosecutors should keep a careful note of such applications and any reasoning given by the court.

The Court is in the best position to say whether the conduct falls under section 19 or 19A and we cannot be required to elect whether to make the application under 19 or 19A. An application should be made under section 19 and the Court can decide whether the conduct complained of falls under section 19A. In addition, an order against the defence representative is likely to be appealed and we will only appear as respondent if we initiated it.

The Court can make an order under section 19 or 19A of its own motion.

The procedure is set out in Part 76 section 4 of the Criminal Procedure Rules.

http://www.justice.gov.uk/courts/procedure-rules/criminal/rulesmenu

The restriction on the recovery of defence costs following acquittal in proceedings in the Crown Court introduced by section 16A of the Prosecution of Offenders Act 1985 may result in an increase in applications under section 19 or section 19A of the Prosecution of Offences Act 1985, on the basis that it was "improper" or "unnecessary" to bring proceedings. Such applications should be opposed citing R v P [2011] EWCA Crim 1130, in which the Court of Appeal stated (at paragraph 13) that "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".

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Applications under section 19 by the CPS or Counsel

If you believe that an application should be made try to discuss it first with a senior Prosecutor.

A full entry should be made on the file by the prosecutor or caseworker of the fact that the application was made and the reasons for the application. This must be done whether the application is successful or not. Record whether the award is at the investigation of the CPS or the Court as this will affect who is the respondent in any appeal proceedings.

The Court should specify the amount of any costs. A report of the proceedings should be made to your line manager.

Costs order against the CPS

Be alert to the possibility of an application being made. By being properly prepared you will be in a position to provide the court with an adequate explanation and to resist applications under section 19 where appropriate.

Although an order may be made where a defendant is legally aided the existence of a legal aid order is a relevant factor. Any order would be in favour of the defendant, who will not have paid the costs. The Lord Chancellor is then entitled to recover the costs. In some cases the process may represent a poor use of resources, particularly where the amount being considered is low. If an order is made the court will have to draw it up, requiring the CPS, as a publicly funded body, to arrange payment to the defendant, only for the Lord Chancellor to later order recovery for the public purse.

In addressing the court in relation to the factors to be considered under rule 76.9 of the Criminal Procedure Rules, it may be appropriate to refer the court to CPR 1.2 (1) (c) which provides:

"at once inform the court and all parties of any significant failure (whether or not that participant is responsible for that failure) to take any procedural step required by these Rules, any practice direction or any direction of the court. A failure is significant if it might hinder the court in furthering the overriding objective."

http://www.justice.gov.uk/courts/procedure-rules/criminal/rulesmenu  

The defence should take reasonable steps to draw such failures to the attention of the court and the other party. If the defence have not done so until costs have been incurred then (a) it may be possible to argue that the link between the act or omission and the costs is not made out or (b) failure to comply with the duty on participation may be a factor under Rule 76.2.

A court may, however, conclude that the parties are entitiled to assume that some issues will be resolved at the hearing, in accordance with the principles behind the "stop delaying justice" initiative.

The case of DPP v Bury Magistrates' Court [2007] EWHC 3256 (Admin) has some useful comments. In that case the Crown's application to quash the order did not succeed but the court indicated the issues were relevant to the amount that should be ordered.

If the defendant is acquitted or an appellant is unsuccessful the award of Costs should be from Central Funds under section 16 of the Act unless the criteria for 19 or 19A are satisfied.

The Court must specify the amount to be paid.

Where an order is made the endorsement should confirm that the court has been guided to, and complied with, the relevant law and procedural rules.

The case MUST be referred back to the relevant manager after court.

The court has an inherent power to reconsider the validity of its own order. If the court concludes that the original order was invalid it is arguable that it can then go on to consider making a fresh order - see Re Harry Jaghdev & Co (Solicitors)  1999 WL 477990.

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Wasted costs orders against members of the CPS

A Crown Prosecutor falls within the category of legal representatives on behalf of a party to proceedings. A Crown Prosecutor is employed by the Service to carry out its functions and at all times exercises delegated powers. Associate Prosecutors exercising a right of audience on behalf of the Service, solicitor agents and counsel are in the same category.

If an application is being made under section 19A, be ready to argue that an application under section 19 is more appropriate when the failure is not directly attributable to the advocate present in court, or an identifiable legal representative.

The Criminal Procedure Rules 2013, the Criminal Practice Directions and the Criminal Costs Practice Direction which came into force on 7 October 2013 sets out the procedure to be followed, part of that involves a three stage test or approach to be followed when a wasted costs order under section 19A is contemplated:

a) Has there been an improper, unreasonable or negligent act or omission?
b) As a result have any costs been incurred by a party?
c) If the answer to (a) and (b) are "yes", should the court exercise its discretion to disallow or order the representative to meet the whole or any part of the relevant costs, and if so what specific sum is involved?

http://www.judiciary.gov.uk/publications-and-reports/practice-directions/criminal-practice-directions

Ridehalgh v Horsfield and others, [1994] Ch. 205. CA (Civ. Div) provided the following definitions (which are of value to criminal courts):

  • "improper" covered, but was not confined to, conduct which would ordinarily be held to justify disbarment, striking off, suspension from practice or other serious professional penalty;
  • "Unreasonable" describes conduct which was vexatious, designed to harass the other side rather than advance the resolution of the case and it makes no difference that the conduct was the product of excessive zeal and not improper motive. Conduct could not be described as unreasonable simply because it led in the event to an unsuccessful result;
  • "Negligent" denotes a failure to act with the competence reasonably expected of ordinary members of the profession.

The Court of Appeal gave further guidance in In re P (A Barrister) [2001] EWCA Crim 1728; [2002] 1 Cr App R 207 as follows:

  1. The primary object is not to punish but to compensate;
  2. The jursidiction is a summary jurisdiction to be exercised by the court which has "tried the case in the course of which the conduct was committed";
  3. Fairness is assured if the lawyer alleged to be at fault has sufficient notice and a proper opportunity to respond;
  4. Mere mistake is not sufficient;
  5. The trial judge should usually deal with such applications as it does not normally constitute bias or the appearence of bias so it is unnecessary to transfer it to a different judge;
  6. The normal civil standard of proof applies but if the allegation is one of serious misconduct or crime clear evidence will be required to meet that standard.

A wasted costs order may be appealed. In the case of an order made by a magistrates' court the appeal is to the Crown Court, and Part 63 of the Criminal Procedure Rules sets out the procedure. In the case of an order made by the Crown Court the appeal is to the Court of Appeal and the procedure is set out in Part 68 of the Criminal Procedure Rules. In both cases the time limit is 21 days from the date of the order. Having heard the submissions the appeal court may affirm, vary or revoke the order. 

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Awards against the CPS as a result of a culpable act or omission by the police

An award can be made under Regulation 3 of the General Regulations in respect of an unnecessary act or omission on behalf of another party to the proceedings. Having carefully considered the relevant authorities, the CPS view is that it is not unlawful for the court to order costs against the CPS when they have been incurred as a result of an improper act or omission by the police.

It is important to remember that any award by the court must be confined to costs actually incurred as a result of the act or omission complained of, so it may well be necessary to argue the amount of the award.

Procedure where a costs application is made against the CPS or CPS representative under section 19 or 19A.

The procedure where a costs application is made against the CPS or CPS representative under section 19 or 19A is set out in the Practice Direction (Costs in Criminal Proceedings) [2013] EWCA Crim 1632. Guidance was also given by the Court of Appeal in In re A Barrister (Wasted Costs Order) (No 1 of 1991) [1993] Q.B. 293.

It is vital to keep a full note on the file including any reasoning as to why the order was made. An immediate report should be made to your line manager so that an appeal can be considered.

Only in exceptional circumstances would the CPS look to an individual Prosecutor to reimburse the Service for costs incurred under section 19A. However it is not possible to say that this will never happen and any such decision will be dependant on the conduct complained of.

In such circumstances disciplinary action may be likely and a number of options may be considered.

If a wasted costs order is made against a CPS representative, Strategy and Policy Directorate should be informed.

Practice Direction (Costs in Criminal Proceedings) [2013] EWCA Crim 1632 at paragraph 4.2.9 provides for appeals of wasted costs orders.In the case of an order made by a magistrates' court, appeal is the the Crown Court. Part 63 of the Criminal Procedure Rules sets out the procedure.

In the case of an order made at first instance by the Crown Court, the appeal is to the Court of Appeal and the procedure is set out in Part 68 of the Criminal Procedure Rules. All appeals to the Court of Appeal must be notified to the Appeals and Review Unit, Special Crime and Counter Terrorism Division (SCCTD) (SCD.Appeals@cps.gsi.gov.uk).

In both cases the time limit is 21 days from the date of the order.

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Third party costs orders for serious misconduct

Advocates and agents will need to be made aware of the powers of the courts to make cost orders, either by application or of the court's own volition, which may be triggered if the blame for delay/disruption is placed on a third party at court.

Costs in Criminal Cases (General) (Amendment) Regulations 2004 amended the 1986 Regulations to enable a court to make a third party costs order, on the application of any party to criminal proceedings or of its own initiative, at any time during or after the criminal proceedings.

Before this amendment, the courts only had power to make wasted costs orders against the legal or other representative of a party to the proceedings where "wasted costs" had been incurred by any party to the proceedings as a result of any improper, unreasonable or negligent act or omission on the part of a legal representative or employee.

This Order enables a magistrates' court or the Crown Court and the Court of Appeal to make a wasted costs order against third parties where it is considered that there has been serious misconduct. It also sets out the procedures to be adopted on an application for such an order, or, when a court is minded to make one of its own volition. It also provides for an appeal from a magistrates' court to the Crown Court and from the Crown Court to the Court of Appeal.

The regulations do not attempt to define 'serious misconduct', even though the Act enabled this to be done. However, examples of serious misconduct would include prejudicial reporting, juror impropriety and witness intimidation.

The Regulations set out the procedure for making a claim, the outcome of which will have to be determined by evidence, usually, though not exclusively, after the termination of proceedings. The term 'proceedings' includes committal proceedings and other preliminary hearings.

Although there is no time limit for making an application, it would seem sensible for such applications to be made reasonably proximate to the events complained of.

Applications against the media are likely to attract much publicity. Areas are asked to notify Press Office and Strategy and Policy Directorate. (hqpolicy@cps.gsi.gov.uk).

A copy of the Order may be found at UK Statutory Instruments no 2408 of 2004.

Guidance is also contained in Part 76.10 of the Criminal Procedure Rules, the Criminal Practice Directions and the Criminal Costs Practice Direction which  came into force on 7 October 2013.

http://www.judiciary.gov.uk/publications-and-reports/practice-directions/criminal-practice-directions

http://www.justice.gov.uk/courts/procedure-rules/criminal/rulesmenu

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