Since the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”) came into force on 1 October 2012, individuals acquitted in the Crown Court have been unable to recover their legal costs from central funds, except in relation to appeal proceedings against a conviction or sentence of the magistrates’ court.

Recent case law (R v James Binning) has however provided new options for individuals acquitted of crimes in Crown Court cases to recover their costs. This has come from the provision for the Crown Prosecution Service (CPS) to pay costs where their conduct is found to be improper or unnecessary (Section 19(1) of the Prosecution of Offences Act 1985 and regulation 3 of the Costs in Criminal Cases (General Regulations) 1986). This provision could also extend to corporate defendants, who, since LASPO, have been unable to recover legal costs from central funds in the most cases, with the exception of proceedings in the Supreme Court.

On 18 October 2012, a maintenance worker was carrying out repairs to the roof of a large hangar at a farm.  He died after falling through a fragile perspex skylight in the roof. The farm was owned by the defendant’s father, who was also the maintenance man’s employer. The defendant actually ran a separate business from the farm. Despite this, the CPS brought proceedings against both the defendant and his father, arguing that they were both the deceased’s employer. The defendant’s father had pleaded guilty to breaching section 2 of the Health and Safety at Work etc. Act 1974 and was fined £67,500.

On 23 October 2013, the defendant made an application to dismiss the charges against him on the basis that he did not owe the deceased an employer’s duty of care and there was therefore insufficient evidence for a proper conviction.  Prior to the hearing of the application, the CPS confirmed that it would not oppose it and all charges against the defendant were formally dismissed.  The defendant then made an application that the CPS pay his costs because they were incurred as a consequence of the CPS’ unnecessary and/or improper act in bringing a prosecution in the absence of any material evidence to substantiate or otherwise to support it.

HHJ Eccles QC agreed that the CPS failed to carry out proper enquiries about the employment position before charge and that act or omission amounted to improper conduct. This breached the prosecutor’s code which established a need for the prosecutor to be satisfied that there is sufficient evidence to provide a realistic prospect of conviction. Without this, a case must not proceed no matter how serious or sensitive it may be.  The judge made an interim award of £40,000 towards the defendant’s costs. An appeal was made by the CPS, who argued that the costs should be assessed on the basis of lower legal aid rates. Whilst that was the accepted position where defendant cost orders are made in respect of payments from central funds, there was previously no specific guidance as to how the courts should assess costs orders in relation to costs awarded against the CPS. On 29 May 2014, HHJ Eccles QC held that the CPS’ attempt to restrict defence costs to legal aid rates failed and that costs could be determined at the higher commercial rates.

This case is important as it provided guidance as to when Defendants may be able to recover their costs from the CPS. HHJ Eccles QC explained at paragraph 33 that “A prosecutor’s duty to act properly seems to me to require him or her to carry out sensible enquiries to see whether a relevant fact or proposition of law does meet the evidential test at the time the charging decision is made. Where a process of decision making is required and when executed it turns out to have been carried out in a flawed manner, but the process if correctly followed would have established that the Crown’s case could not be made out, it is both the failure of process and the erroneous decision flowing from it that is then capable of being characterised as an “improper act or omission”. “Properly” in this context denotes in my judgment a correct application of the right process to arrive at a proper decision, having regard to the interests of justice”.

Given the restrictions imposed by LASPO, similar applications are sure to follow. It will be interesting to see whether the Court will follow a similar approach for corporate defendants, and allow them to recover costs from the CPS if the CPS’ conduct is found to be improper or unnecessary.