A Deputy District Judge had erred in not granting the costs of a privately paying defendant where the Crown had failed to produce papers for a first appearance.
On the 29th April 2013 the claimant was charged with possession of a controlled drug and driving whilst unfit. He was bailed to attend Ealing Magistrates' Court on the 17th May 2014. He instructed a solicitor on a private fee basis who attended. The hearing was aborted through no fault of the claimant as there were no prosecution papers available. The claimant applied for costs against the prosecution pursuant to section 19 of the Prosecution of Offences Act 1985.
On the 23rd May 2014 the claimant appeared before a deputy district judge and pleaded guilty to possession of a controlled drug. He was sentenced to a fine of £75 and ordered to pay prosecution costs of £85 and a victim surcharge of £20. He pleaded not guilty to driving whilst unfit and that matter was adjourned for trial. The Judge refused the application for costs for the aborted hearing of the 17th May 2014. The note taken by the deputy clerk in regards to the judge's reasoning stated that the judge took the view that there was no clear identification of the party at fault (CPS or the police) and for this reason the deputy district judge refused the application.
The claimant sought to judicially review the judge's decision to refuse his application of costs. It was accepted by the prosecution that the judge had erred in law by not treating the Crown as one party. It was asserted however that a mere mistake, without repetition, cannot be a ground for an order under section 19 of 1985 Act as the sanction under the section is punitive. Furthermore the court's discretion should not be exercised where "the fault is the result of a mistake". Also it was argued the CPS had pressure on its resources.
Held, The judge erred in his approach as the first consideration was for him to consider whether there had been an unnecessary or improper act or omission. Secondly he then had to consider whether costs had been incurred as a result of that unnecessary or improper act or omission by one of the parties. Thirdly he had to consider whether he will as a matter of discretion order all or part of the costs incurred to be paid to the other party by the party in default.
Furthermore section 19 makes no distinction between parties, the CPS and the police are both part of the Crown. Therefore the judge made an error in law. The Court further rejected the submission that a mere mistake without repetition cannot be grounds for an order under section 19 as there is no doctrine in this area that every dog is entitled to one bite. Also the Crown's argument based on current pressure on resources was unsuccessful as anyone working in the criminal justice system is aware of that pressure on defence and prosecution. The introduction of the Criminal Procedure Rules in 2005 state that the overriding objective is that criminal cases are dealt with justly which includes dealing with them efficiently and expeditiously. In summation the failure of the Crown not having the prosecution papers available on the 17th May 2013 was a clear mistake for which no satisfactory explanation was provided. The order for costs should have been made and the Crown must pay the claimant's costs of £864 in regards to the aborted hearing
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