A peculiar aspect of the criminal costs regime is that a private prosecutor can apply for their costs to be paid by the State, regardless of whether they win or lose the case. This situation allows persons to pursue prosecutions which other bodies such as the Crown Prosecution Service may have declined to take up, with no financial risk.
Some fear that this lacuna in the rules may encourage vexatious and frivolous prosecutions.
In 2018 Anthony Wollenberg secured summonses against four defendants, alleging fraud. The defendants made an application to have the charges dismissed, which was successful before Her Honour Judge Taylor at Southwark Crown Court.
Wollenberg’s own application, to have his costs paid from central funds was refused. Wollenberg renewed his application to seek judicial review of that decision, but the High Court on 17 July 2020 refused permission.
What do we learn from this case?
The principles which emerge, and which should be applied when a court is asked to consider an application for prosecution costs under section 17 of the 1985 Act, may be summarised as follows:-
(i) the general rule is that costs should be paid from central funds, unless a lesser sum is appropriate; the amount of costs to be paid are those that the court considers to be reasonably sufficient to compensate the prosecutor for any expenses properly incurred;
(ii) there is a discretion to decline to make an order if, for example, the prosecution was started or continued unreasonably;
(iii) or there is some other good reason for not doing so; examples include where proceedings have been instituted or continued without good cause or there has been misconduct;
(iv) whilst those examples are given in the Practice Direction and in the rules, they are not determinative of the extent of the discretion upon whether to refuse costs to the prosecution. The touchstone is objective reasonableness and proper conduct. Therefore, if the prosecution has behaved unreasonably and/or improperly then the court may refuse to award costs from central funds. Whether the private prosecutor’s conduct of the prosecution can be reasonably described as unreasonable or improper is essentially a fact-specific question: each case will depend on its own facts such that reference to other decided cases on their facts is of little assistance.
Since these proceedings were for judicial review in respect of a criminal cause on indictment in the Crown Court, namely cost orders consequential upon their completion, ordinarily, a decision of the Crown Court cannot be challenged by the High Court – see section 29(3) of the Senior Courts Act 1981.
Where, however, there is a jurisdictional error of sufficient gravity to take the case out of the jurisdiction of the Crown Court, the High Court may intervene.
In the Crown Court at Maidstone, ex-parte London Borough of Harrow  1 CR App R 117 it was held that a judge had no jurisdiction to make the order he purported to make, such that it could no longer be categorised as a matter relating to a trial on indictment so as to fall within the exclusion in section 29(3) of the 1981 Act.
It was, therefore, amenable to judicial review. Also, in R(M) v Kingston Crown Court  1 Cr App R 31 Cr App R 3 it was said at paragraph 32:-
“There is a binding decision to the effect that, where an order is made relating to a trial on indictment, nonetheless it may be quashed in circumstances where the defect is so severe that it deprived the court below of jurisdiction to make it …the question is whether there is a jurisdictional error of such gravity as to take the case out of the jurisdiction of the crown court“.
The High Court has dealt a blow to the idea that a private prosecution offers a free-ride so far as costs are concerned. While there is nothing inherently wrong with the ability to pursue a private prosecution, it is to be hoped that this decision will act as a disincentive to pursue weak and frivolous cases.
The court also makes clear that the remedy offered by judicial review will rarely be available as the bar is set very high in that regard, as per R (M) v Kingston Crown Court.
Where our clients are privately prosecuted, we will not hesitate to ensure the court is fully appraised of all relevant costs law where the prosecutor seeks monies from public funds.
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