Jurisdiction – Crown Prosecution
R (on the application Crown Prosecution Service) v Bolton Crown Court: Queen's Bench Division, Divisional Court (Richards LJ and Ouseley J (judgment delivered extempore)): 16 November 2012
Regulation 3 of the Cost in Criminal Cases Regulations 1986,SI 86/1335, so far as material, provides: ' ... where at any time during criminal proceedings - ... the Crown court, 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 or part of the costs so incurred by that party shall be paid to him by the other party.'
In December 2009, a Crown court judge gave a detailed judgment. In that judgment he expressed serious concerns about the poor performance of the Crown Prosecution Service and the inadequate consideration given by them to cases within their remit. The judge discussed potential remedies in order to persuade the CPS to 'get their house in order'. He maintained that under regulation 3 of the Costs and Criminal Cases Regulation 1986, SI 86/1335 (the 1986 Regulations) which was made under section 19(1) of the Prosecution of Offence Act 1985 (the 1985 act), he had the jurisdiction to make a costs order against the CPS in favour of the defence barrister.
In the instant proceedings a plea and case management hearing (PCMH) was adjourned by the same judge on the basis that the CPS had not prepared the case properly. Relying on his earlier judgment, the judge made a costs order against the CPS in favour of the barrister representing the defendant on the basis that that barrister had lost a day's hearing and under the Advance Graduation Fee Scheme would not be paid the £100 fee. The CPS challenged the making of the order. The Bar Council appeared as an intervener.
The main issue was whether the Crown Court had power under regulation 3 of the 1986 Regulations and section 19 of the 1985 act to make a costs order as part of criminal proceedings against another party's barrister. A jurisdictional point arose as to whether judicial review was available under section 29(3) of the Senior Courts Act 1981 (the 1981 act), which stated to the effect that a matter regarding a trial on indictment could not be the subject of judicial review. If the jurisdictional threshold was passed the issue arose whether the defence barrister was 'a party to the proceedings'. In the Crown court the judge had taken the view that 'party' had to be construed as anyone with a sufficient interest to make him a party. The application would be allowed.
(1) Relying on established authority, it could not be said that a costs order in a PCMH made in favour of the defendant's barrister could fall within the exception of a matter regarding a trial on indictment under section 29(3) of the 1981 act. The High Court therefore had jurisdiction to hear the case. Smalley, Re  2 WLR 538 considered; Re Sampson  1 WLR 194 considered.
(2) On a natural meaning of the word 'party'; the parties were the crown and the defendant. The judge had taken the view that a wider view had to be given to the word 'party' to prevent an unfair situation. That was not a construction that was open to the judge. It was a strained construction and could not have been the intention of the legislature. Problems arising out of the Advanced Graduated Fee Scheme, could not be solved by straining the construction of the 1986 Regulations. The costs order had to be quashed.
Andrew Edis QC (instructed by the Crown Prosecution Service) for the Crown; Nick Lavender QC for the intervener.