The Divisional Court gave judgment in the case of R (CPS) v Bolton Crown Court  EWHC 3570 (Admin) in late November. This was a Judicial Review by the Crown Prosecution Service of a decision of HHJ Everett that ordered the CPS to pay £100 in wasted costs. The Court quashed the order.
What had happened was that at a Plea and Case Management Hearing (the first appearance in the Crown Court when a defendant is expected to enter a plea and, if it is not guilty, there is then discussion as to how and when the trial should proceed), the CPS were not ready as they had not complied with the direction to serve the case papers on time. As a result, the case had to be adjourned.
The Judge ordered that the CPS pay the defence lawyer £100 (plus VAT). The reason for this is that if a case is adjourned because the CPS are not ready, the defence do not get paid anything for turning up to the Court. The figure is arrived at because that is the amount the barrister who does the trial would have had to pay the person who covered the ineffective hearing.
Does this matter? Why all the fuss over £100?
Behind this lies a much more important point of principle. The CPS are notoriously inefficient. The last report on them shows an astonishingly low rate of compliance with Court Orders – 23%. And that is before you consider all the directions set by Parliament and Secondary Legislation that are ignored.
How then can the CPS be encouraged to do a proper job? In reality, apart from ‘naming and shaming’ the two main mechanisms have been seen as firstly, ordering costs to be paid, and secondly, staying the proceedings as an abuse of process.
Although the second option has been used on occasion, it is very much a ‘nuclear option’. This involves stopping the case and saying that there can be no further prosecution of it. Clearly in many cases there will be a victim (or potential victim) who will suffer because of this. For that reason, Judges are very reluctant to order a case to be stayed and it will only be extreme cases where this is done.
What did the Court decide?
The power to make a costs order comes from the Prosecution of Offences Act 1985 that, amongst other things, set up the CPS – quoting from the judgment:
Section 19(1) of the 1985 Act provides:
“The Lord Chancellor may by regulations make provision empowering magistrates’ courts, the Crown Court and the Court of Appeal, in any case where the court is satisfied that one party to criminal proceedings has incurred costs as a result of an unnecessary or improper act or omission by, or on behalf of, another party to the proceedings, to make an order as to the payment of those costs.”
Regulation 3 of the 1986 Regulations makes provision in terms similar to those of the empowering statute:
“(1) Subject to the provisions of this regulation, where at any time during criminal proceedings ‑
(b) the Crown Court, or
is satisfied that costs have been incurred in respect of the proceedings by one of the parties as a result of an unnecessary or improper act or omission by, or on behalf of, another party to the proceedings, the court may, after hearing the parties, order that all of the costs so incurred by that party shall be paid to him by the other party.
The Court ruled that the defence lawyer was not a ‘party’ to the proceedings – only the defendant himself was. And as the defendant (as almost all are) was on legal aid, the lawyer was paid by the Legal Service Commission. As the regulations only permitted a wasted costs order to be made in favour of a ‘party’, the wasted costs order shouldn’t have been made.
Were they right?
Well, in a word, ‘yes’. In two words, ‘unfortunately yes’. It is interesting to note that there was nobody putting the other side of the argument – that the Crown Court was right. The Bar Council ‘intervened’ (joined in the argument even though they were not a party), but agreed with the CPS – it’s not clear whether that was necessary as that was against the interests of barristers, but there you go.
Notwithstanding that, the issue is pretty clear-cut.
So, is there anything else that can be done?
The Court asked the MoJ to do something. They won’t.
This anomaly, as well as the potential for great unfairness, was pointed out in the case of Fitzgerald  3 Costs LR 437. Since then, nothing has been done. It is unlikely that the MoJ will do anything as if the CPS were routinely liable for delays then it could prove very costly to the public purse and so there is therefore every intention for them to maintain the status quo.
It would be easy to resolve. For example, there is already power for the Minister to make regulations covering this situation, allowing for payment to “any other person who in the opinion of the court necessarily attends for the purpose of the proceedings otherwise than to give evidence”. Or the definition of party could be edited to include this sort of case.
However, for the reasons stated above, don’t hold your breath.