Costs

Aborted criminal trial - failure to investigate defendant's antecedents following agreement between counsel - wasted costs order not appropriateIn re a barrister (Wasted Costs Order) (No 9 of 1999):CA (Clarke LJ, Kay J and Judge Dyer): 4 April 2000

During the trial of a defendant on a count of indecent assault the defendant informed his counsel that he had no previous convictions for sexual offences (although he in fact had a conviction for importuning dating from 1959), and that his only previous convictions were one conviction for deception in 1981 and a later driving matter.

It was agreed between counsel that 'the old matter' would not be referred to if evidence as to charitable works were put in, and defending counsel had assumed that matter to be the 1981 conviction.

However, when in evidence the answer was elicited that the defendant had never been accused of an offence of a sexual kind the 1959 conviction had come to light, as had the agreement between counsel.

The defendant subsequently dismissed the barrister and the jury was discharged.

The judge made a wasted costs order under s.19A of the Prosecution of Offences Act 1985 on the ground of the barrister's failure to check the defendant's antecedents.

The barrister appealed.Edward Rees QC (instructed by Richards Butler) for the appellant.Held, that although in most cases counsel would be bound to check a client's antecedents, that might not be a fair view in every case; that a copy of the antecedents had been sought before trial and in light of the assurances given it had been reasonable to suppose that the only 'old matter' was the 1981 conviction; and that, in the circumstances, the mistake was understandable and a wasted costs order should not have been made; but that compliance with the requirements of Practice Direction (Crime: Antecedents) (No.

2) [1997] 1 WLR 1472 would ensure that such problems did not recur.