Introduction
On 23rd May 2014, after the summer ball at the Royal Agricultural University, there was an allegation made against four men (their names, ages, and alleged offences are set out in this article) that they had committed a gang rape against a woman.
After 9 months of investigation, the men were charged. They were due to stand trial at the end of March 2016. However, after the jury had been sworn the prosecution decided to ‘pull the plug’ and offer no evidence against the defendants, who were all therefore acquitted.
Three of the four had paid their solicitors privately and had QCs. They had racked up £221,000 in legal costs and tried to apply to get these refunded.
What was the basis of their costs application?
It was under s19 Prosecution of Offences Act 1985 combined with Reg 3 The Costs in Criminal Cases (General) Regulations 1986.
This provides that the Court can order costs if it “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.”
This has been considered in various cases, most recently in Cornish & Maidstone and Tunbridge Wells NHS Trust [2016] EWHC 779 (QB).
The principles are set out at para 16 –
(a) Simply because a prosecution fails, even if the defendant is found to have no case to answer, does not of itself overcome the threshold criteria of s.19 (R v P, Evans).
(b) Improper conduct means an act or omission that would not have occurred if the party concerned had conducted his case properly (Denning).
(c) The test is one of impropriety, not merely unreasonableness (Counsell). The conduct of the prosecution must be starkly improper such that no great investigation into the facts or decision-making process is necessary to establish it (Evans).
(d) Where the case fails as a matter of law, the prosecutor may be more open to a claim that the decision to charge was improper, but even then, that does not necessarily follow because “no one has a monopoly of legal wisdom, and many legal points are properly arguable” (Evans).
(e) It is important that s.19 applications are not used to attack decisions to prosecute by way of a collateral challenge, and the courts must be ever vigilant to avoid any temptation to impose too high a burden or standard on a public prosecuting authority in respect of prosecution decisions (R v P, Evans).
(f) In consequence of the foregoing principles, the granting of a s.19 application will be “very rare” and will be “restricted to those exceptional cases where the prosecution has made a clear and stark error as a result of which a defendant has incurred costs for which it is appropriate to compensate him” (Evans).
Don’t they get their costs back as of right?
No. Which many people think is unfair. It stems from the fact that the government have repeatedly cut back legal aid. It is likely that they realised that a ‘tipping point’ had been reached.
The cuts would have lead to an increasing number of people paying privately. Even though only a proportion of those would win, as the rates for private clients are so much higher than legal aid, the savings made by cutting legal aid risked being offset by the number of Defendants’ Costs Orders.
And so the government stopped defendants in the Crown Court (with a very limited set of exceptions) from recovering their costs.
Why was the case dropped here?
There’s a good report in the Hereford Times. It is quite damning of the Officer in the Case, who was accused of getting too close to the complainant and failing to understand his job.
This seems to have had the consequence that instead of approaching the case neutrally and ensuring that all the evidence was out in the open, he failed “to disclose ‘game changing’ evidence” and failed to properly document his dealings with her.
For example, “Three days before the trial was due to start, Det Con Lewis told the Crown Prosecution Service that “nothing of relevance had emerged” from a search of the telephone“.
The defendants did not accept that and pushed for their own examination. What came out was revealing. Some of the material was “text messages sent by the complainant in the hours after the alleged incident and a conversation with a friend about what would happen if the video became common knowledge“.
Further, it had not been disclosed that “the complainant was a witness to an alleged rape on an army base in October 2014 and that there were inconsistencies in her evidence. The alleged rapist was a soldier but he was later cleared“. The CPS were heavily criticised for not seeking to find out any details of this for months.
In light of that, the Judge found that the test under s19 (which is a very high one) was met in this case and granted the application, sending the case for taxation (another specialist judge to look at what costs were reasonable).
Comment
It should be noted that this is a rare case – a s19 application is very unlikely to succeed (see the case of Cornish and the cases mentioned in there).
For the three defendants, this is clearly a very good result. They have spent a small fortune on their defence and although they may not get it all back, they should get the bulk of it.
On a wider note, it raises the question of what would have happened had these men not been paying privately. Although it is to be hoped that the outcome would have been the same had they been on legal aid, the reality is that the cuts mean that many such lawyers would not have had the resources to investigate all the matters, get their own expert to analyse the phone (which provided the critical evidence) and push for full disclosure.
It’s also a salutary lesson to lawyers (and judges) that when something similar to “nothing of relevance had emerged” from a search of the telephone” is said, that should not always be taken at face value.