#10376 - Costs - BPC Criminal Litigation (formerly BPTC) 2024/2025

COSTS

D's costs order (DCO) (Prosecution of Offences Act 1865 s16)

• DCO =

  • D who is acquitted OR succeeds in appeal

1. may be awarded sum from central funds (govt) for expenses properly incurred by him in proceedings;

2. may NOT be awarded D's legal costs (fees, disbursements inc. expert Ws) UNLESS:

1. condition A

   • D = individual; AND

   • information NOT proceeded with / mags' dealing summarily with offence dismiss it; OR

   • successful appeal made to CC under MCA 1980 s108; OR

   • insanity / fitness to plead: CA allows appeal against

     • insanity NG verdict

     • finding under Crim P (Insanity) Act

     • order made in cases of insanity / unfitness to plead

2. condition B - permits HC + CA to make DCO including D's legal costs, if dealing with appeal from proceedings in lower court which could've made DCO for D's legal costs under condition A

   • D = individual; AND

   • legal costs incurred in following lower court:

     • mags'; OR

     • CC on appeal against conviction / sentence

3. condition C

   • legal costs incurred in proceedings in SC

• the amount

  • may be:

3. full amount; OR

4. such amount court considers reasonably sufficient to compensate D; OR

5. such lesser amount as court considers just and reasonable (LASPO 2012)

• D's entitlement to costs

  • under ECHR

    • NO absolute right

    • BUT presumption that acquitted D should be awarded costs

    • refusal could breach presumption of innocence

  • generally

    • = discretionary

    • general rule: D awarded costs unless positive reasons for NOT

      • e.g. D's conduct brings suspicion on self AND misleads pros into thinking case stronger than is

• rescinding a DCO

  • can only rescind if D pleads / is found G

• DCO against legally aided D

  • pointless: legal aid pays costs

  • BUT if made, can get allowance for travelling + subsistence, as if W

Pros costs (Prosecution of Offences Act 1865 s17)

1. costs out of central funds for private (NOT CPS etc) prosecutor

   • applies regardless of whether pros succeed

   • amount:

     1. full amount; OR

     2. such amount court considers reasonably sufficient to compensate him for expenses properly incurred; OR

     3. such lesser amount as court considers just and reasonable (LASPO 2012)

---------OR----------

2. order that D pay pros costs (Prosecution of Offences Act 1865 s18)

   • only convicted D (even if committed to CC for sentence) / unsuccessful appellant

   • unsuccessful appeals

     • CC should hesitate before interfering with mags' costs order

     • BUT CC does have power to interfere as seems just and reasonable

   • applies to private AND public prosecutors

   • amount: that which court considers just and reasonable, taking into account D's ability to pay

   • when making, following considered

     1. choice of court of trial - D should NOT be punished by excessive costs order for electing CC trial OR if pros elect CC trial

     2. the plea

     • if D pleads G, can still make (possibly less)

     • if D pleads NG if pros case overwhelmingly strong / when knew G, costs order appropriate

     3. the rest of the sentence

     • custodial - costs unusual (no income) unless D has sufficient funds

     • non-custodial - D pays own costs, if multiple Ds, apportion