Which Costs Regime Should Apply Following Withdrawal Of Judicial Review In Criminal Proceedings?

AB, R (On the Application Of) v Uxbridge Youth Court concerned an application by the claimant AB for an order that the defendant, the Director of Public Prosecutions (DPP), pay the costs of judicial review proceedings brought by AB.

Relevant background:

• AB was charged with robbery and battery offences alleged to have occurred when he was 14 years old.
• AB has been recognised as a victim of human trafficking by the Single Competent Authority (SCA) on 3 occasions, including in a decision on 25 November 2022 which accepted there was a nexus between AB’s trafficking and the alleged offending.
• The Crown Prosecution Service (CPS) decided to prosecute AB. The DPP confirmed this decision following the SCA’s latest decision, applying the wrong test in assessing whether it was in the public interest to prosecute AB as a child victim of trafficking.
• AB unsuccessfully applied for a stay of proceedings in the Youth Court and brought judicial review proceedings challenging that refusal.
• The parties agreed that the DPP would withdraw his decision to prosecute and make a fresh decision, if AB withdrew his claim for judicial review.

Key events:

• 18 March 2022 – Alleged robbery and batteries by AB, aged 14
• 25 November 2022 – SCA decision recognising AB as victim of trafficking
• CPS decides to prosecute AB
• DPP reviews and confirms prosecution decision
• 3 March 2023 – AB’s stay application refused by Youth Court
• 19 April 2023 – AB issues judicial review claim
• 9 June 2023 – AB serves a Part 18 Request for clarification of the decision making process which led to the prosecution
• 28 June 2023 – DPP serves Reply to Part 18 Request
• 3 August 2023 – AB applies to amend his Statement of Facts and Grounds to take a point which was conceded by the DPP and which resulted in the agreement that a fresh decision would be made and the claim for judicial review would therefore be withdrawn.

The point taken, and conceded, was as follows:

Whether or not a potential defendant in criminal proceedings would have a defence under s45 of the Modern Slavery Act 2015, and the Claimant would not have such a defence in relation to the charge of robbery, prosecutors are required to consider whether it is in the public interest to prosecute a suspect who is a victim of human trafficking. They do so in accordance with the CPS guidance on “Modern Slavery, Human Trafficking and Smuggling” which requires the application of a four stage test. Stage 4 requires consideration of whether it is in the public interest to prosecute. It requires the seriousness of the offence, the level of culpability of the victim of trafficking, the harm caused to the victim of the offence and the age and maturity of the suspect to be taken into account. In addition to this, where the suspect is an adult, the Guidance states that the prosecutors should consider:

“Whether there is a nexus between the trafficking/slavery or past trafficking/slavery and the alleged offending; and, if so,

“Whether the dominant force of compulsion from the trafficking/slavery or past trafficking/slavery acting on the suspect is sufficient to extinguish their culpability/criminality or reduce their culpability/criminality to a point where it is not it the public interest to prosecute them.”

This was referred to as “the dominant force of compulsion test”.

Issues in dispute

What costs regime should apply – civil or criminal?

For the DPP it was argued that the criminal costs regime should apply in line with the principle set out in Murphy v Media Protection Services Ltd that save for exceptional cases, criminal proceedings are subject to criminal costs rules. This was not an exceptional case. Specfically, it was argued:

• Parliament has created specific costs rules for criminal proceedings and intended these rules to govern criminal causes, including for any appeals or judicial reviews arising out of such criminal proceedings. As Stanley Burnton LJ stated in Murphy, “save in exceptional cases, prosecutions and appeals in criminal cases should be and will be subject to the criminal costs regime“
• This principle was binding on the court and reflected Parliament’s intention in enacting the distinct criminal costs regime in the Prosecution of Offences Act 1985. It was therefore not open to the claimant to challenge.
• Moreover, there were no exceptional circumstances displacing the application of the criminal costs regime here. Challenges to prosecution decisions arise routinely in criminal matters in the courts. For the civil costs regime to apply, the reasons must be exceptional and compelling to justify departure from the criminal costs regime intended by Parliament.
• The reasons put forward by the claimant (below) related to features that were not exceptional in the context of criminal matters and judicial reviews thereof. As such, the proceedings retained their criminal character and there was no basis to apply the civil costs regime.

For the Claimant it was argued that the civil costs regime should apply as this was an exceptional case. Specifically:

• Decisions on whether to prosecute are akin to typical judicial review decisions, so the usual principle that costs follow the event should apply.
• When deciding whether to prosecute, “the prosecutor’s decision as to whether there is a public interest in a prosecution is similar in nature to the sort of decision which is typically considered in the context of a claim for judicial review.“
• When a prosecutor makes an unlawful decision that it is in the public interest to prosecute, “ex hypothesi, s/he is not acting in the public interest and the rationale for reducing the prosecutor’s exposure to costs falls away.” There was no reason decisions on the public interest in prosecution should be treated differently to other public law decisions susceptible to judicial review.
• The prosecutor should be encouraged to concede unlawful decisions on the public interest early, just as public bodies are in judicial reviews, per the reasoning in R (M) v London Borough of Croydon [2012] 1 WLR 2607.
• It would create difficulties for firms doing legal aid work in similar cases in the future if they are not able to recover costs, referring to In re appeals by Governing Body of JFS & others [2009] UKSC 1.
• Although challenges to decisions to prosecute rarely succeed, that statistical exceptionality and their ‘conceptual exceptionality’ means the civil costs regime should apply. The Claimant relied on the summary of the Divisional Court’s reasoning in R (Belhaj) v Director of Public Prosecutions [2018] UKSC 33. [26].

If the criminal costs regime applies, should the court make a costs order against the DPP under s19 Prosecution of Offences Act 1985?

For the Claimant it was argued:

• If the criminal costs regime applied, the court should still make an order for costs against the DPP pursuant to section 19(1) Prosecution of Offences Act 1985.
• Section 19(1) allows a criminal court to order one party to pay the costs of another party where it is satisfied this was incurred due to an “unnecessary or improper act or omission” by the other side.
• The DPP’s application of the wrong test in assessing the public interest in prosecuting the claimant, a child victim of trafficking, was an improper omission satisfying section 19(1).
• Relying on the Divisional Court case of Director of Public Prosecutions v Denning [1991] 2 QB 532, where a flawed charge met the test of an improper omission, it was argued that the error here was similarly clear and should suffice under section 19(1), referring to the analysis of impropriety for these purposes in R v Evans (No 2) [2015] 1 WLR 3595.
• Applying the incorrect test failed to meet the standards reasonably expected of a prosecutor, meaning an order could be justified against the DPP on that basis

The DPP argued that:

• Section 19(1) of the Prosecution of Offences Act 1985 does not give the High Court power to make a costs order against the prosecution. Rather, it only empowers magistrates’ courts, the Crown Court and the Court of Appeal to make costs orders where satisfied the conditions of section 19(1) are met.
• Therefore, the High Court had no ability to award costs against the DPP under the criminal costs regime based on section 19 in this case.
• Further, even if the High Court could invoke section 19, the DPP submitted that the error in applying the incorrect test for assessing the public interest in prosecuting a child victim of trafficking did not meet the high threshold for “impropriety” under that provision.
• As Hickinbottom J made clear in R v Evans (No 2), the threshold is very high and cases where costs will be ordered against prosecutors are “very rare”. At [146], he stated costs based on an improper prosecutorial decision would generally only be warranted where “the decision was one which no reasonable prosecutor could have made“.
• The initial decision to prosecute was reasonable and at most, there was an error in one aspect of the multi-faceted public interest assessment. This did not render the overall decision so unreasonable that it was improper for section 19 purposes.
• As such, even if the court could invoke its powers under section 19, it would not be appropriate to make a costs order against the DPP on the facts here. The high threshold for improper prosecutorial decisions was not met.

Decision

On Issue 1 – What costs regime should apply

The court applied the principle set out in Murphy that “save in exceptional cases, prosecutions and appeals in criminal cases should be and will be subject to the criminal costs regime“. It held that the Murphy principle is “well established” and rejected the claimant’s attempt to challenge its correctness:

“Beguiling though Mr Buttler’s submissions were, and skilfully made, I reject them. With respect to him, much of his argument was in truth an attempt to challenge the correctness and authority of the Murphy principle. This flew in the face of the decision of the Divisional Court in Bahbahani where arguments similar to some of Mr Buttler’s were considered and rejected and where, in any event, the application of the Murphy principle was affirmed. In my view, the principle is well established.”

The court found that there was nothing exceptional about this case to warrant application of the civil costs regime:

“If one then asks whether there is anything about the present case which took it out of the run of criminal causes or matters, or which meant that it was very far from being a typical claim for judicial review of a decision of the Youth Court, the answer is a resounding “No”. The decision directly under challenge in this case was a decision to refuse an application to stay the proceedings in the Youth Court. That was a routine decision in a routine criminal case with which the criminal courts are well accustomed to dealing. Indeed, the case is so far from being exceptional that it is not necessary to accept Mr Buttler’s invitation to explore where the boundary may lie or what principles might apply on different facts.”

On Issue 2 – If the criminal costs regime applies, should the court make a costs order against the DPP under s19 Prosecution of Offences Act 1985?

The court accepted the DPP’s argument that Section 19 does not give it, as the High Court, the power to make a costs order.

“The Murphy principle was also stated in the context of an application which included the costs of the proceedings in the criminal courts, so that the Divisional Court may have had in mind the fact that it was a civil court dealing with costs incurred in the criminal courts. Here, the application is solely for the costs of the claim for judicial review. Moreover, in Murphy there was a power under which costs might realistically have been awarded under the criminal costs regime. In the present case it is now common ground that costs could not be awarded in the Claimant’s favour under section 19(1) of the 1985 Act.”

The court also held the DPP’s omission was not improper for Section 19 purposes, not meeting the high threshold set in cases like R v Evans (No 2).

“I do not accept that costs would have been awarded in the Youth Court in the present case had the error in the application of the Guidance emerged there. It seems to me that the relevant decision in this case was the decision to prosecute the Claimant. That is the step which led to costs being incurred by him and which he would have to show was improper or unnecessary. However, all that has been established at this stage is that in assessing the various factors which required to be assessed at stage 4 of the process of deciding whether to prosecute, the case worker mistakenly took an overly narrow approach to the circumstances which might lead to the conclusion that it was not in the public interest to do so.”

In conclusion therefore:

“So for all of these reasons I accept Mr Douglas-Jones’ submission that there are no exceptional features of this case. The claim for judicial review concerned a routine prosecution brought by the relevant public authority. There was nothing to take it out of the ordinary run of cases which come before the criminal courts. The criminal costs regime therefore applies to the Claimant’s application and it is common ground that under that regime I do not have a power to order that the DPP pay the costs of the claim.

“I therefore permit the Claimant to withdraw his claim but dismiss his application for costs.”