1.1 Introduction

These notes have been prepared by the Senior Costs Judge assisted by the Criminal Costs Sub-Committee for the guidance of those who have to deal with orders for costs in criminal cases. They are also available on the JSB’s website at www.jsboard.co.uk, with links to the primary and secondary legislation referred to throughout.

1.2 Statutory framework

The principal statutes underlying costs in criminal cases are the Prosecution of Offences Act 1985 (the 1985 Act) and the Access to Justice Act 1999 (the 1999 Act) The Regulations made under the 1985 Act referred to in the text include the Costs in Criminal Cases (General) Regulations 1986 (the General Regulations), which also deal with costs out of Central Funds, allowances to witnesses and related matters. Cases funded out of the Criminal Defence Service Fund are governed by Regulations that include: the Criminal Defence Service Funding Order 2000; the Criminal Defence Service (General) (No.2) Regulations 2001 and the Criminal Defence Service (Recovery of Defence Costs Orders) Regulations 2001. The Practice Direction Costs in Criminal Cases http://www.hmcourts-service.gov.uk/cms/files/costs_pd_180504.pdf made on 18 May 2004 is of central importance.

1.3 General considerations

The initial assessment of criminal costs is carried out by determining officers (authorised court officers) who assess costs in accordance with the relevant statutory regulations, which are binding upon them. Guidance on the proper application of those Regulations and the principles of assessment are to be found in the Determining Officers Notes for Guidance (DONG), the Graduated Fee Guidance and the guidance to be derived from decisions by High Court Judges and Costs Judges contained in the Taxing Compendium and commercial Law Reports. The decisions contained in the Taxing Compendium are binding upon the determining officer on any matter of principle.

1.4 Where a Judge making an order for costs draws the attention of the Determining Officer to the conduct of a particular advocate, or solicitor, the Determining Officer will have regard to the matters stated. Such expressions of opinion are, however, not binding on determining officers (see also paragraph 10.2 CDS-funded Costs).

1.5 Costs in criminal cases fall into five main categories:

(a) costs payable out of Central Funds to an acquitted defendant or successful appellant under section 16 of the 1985 Act (a ‘Defendant’s Costs Order’);

(b) prosecution costs payable out of Central Funds under section 17 of the 1985 Act;

(c) costs payable by an offender or unsuccessful appellant under section 18 of the 1985 Act;

(d) costs payable between the parties in respect of unnecessary or improper acts or omissions, either by the prosecutor to a defendant or by a defendant to the prosecutor under s.19 of the 1985 Act and General Regulation 3 or by a legal representative as ‘wasted costs’ under section 19A of the 1985 Act;

(e) costs payable under a Criminal Defence Service (CDS) funded order, section 17 Access to Justice Act 1999 and the Criminal Defence Service (Recovery of Defence Costs Orders) Regulations 2001 as amended.

1.6 These five categories, which are dealt with in turn, are not mutually exclusive. For example, even though a defendant is CDS-funded, if convicted, he may still be ordered to pay costs, and, if acquitted, may still receive a Defendant’s Costs Order for his own out-of-pocket expenses.

It should be remembered that:

(a) costs payable out of Central Funds and CDS-funded costs are payable out of Central Government funds, being paid in each case out of the appropriate vote;

(b) unless an order is made under section 17 of the 1985 Act, the costs of a private prosecutor fall upon him;

(c) CDS-funded costs belong to the solicitor or counsel appearing under the legal aid order or representation order and do not cover any personal expenses of an acquitted defendant or successful applicant;

(d) an order for costs out of Central Funds made under section 16 of the 1985 Act (a ‘defendant’s costs order’) in favour of a legally assisted person does not include, either costs payable pursuant to the representation order or legal aid order, or any amount which the legally assisted person might be liable to pay under a Recovery of Defence Costs Order, but does cover any expenses (but not loss of earnings) reasonably incurred by the defendant or appellant personally;

(e) orders for costs out of Central Funds may only be made where there is statutory provision for such orders.

1.7 The effect of combining various orders for costs is as follows:

(a) where a private prosecutor’s costs are ordered to be paid out of Central Funds under section 17 of the 1985 Act, and an order is also made for the payment of the whole or part of those costs by a convicted defendant under section 18, or a defendant under section 19 and General Regulation 3, any costs recovered from the defendant will be credited to Central Funds under General Regulation 26;

(b) where a prosecutor is ordered under section 19 and General Regulation 3 or section 19A to pay the whole or part of the costs of a defendant who was CDS-funded, any costs so recovered will be credited to the Community Legal Service (CLS) Fund;

(c) where a Defendant’s Costs Order is made under section 16 of the Act for payment out of Central Funds of costs in favour of an acquitted defendant who is represented privately, the costs will fall on Government Funds, but any costs recovered under an order for payment of the whole or part of these costs by the prosecutor under section 19 and General Regulation 3 or section 19A will be credited to Central Funds.

1.8 Costs recovered without an order

An order is not required for payment of Criminal Defence Service-funded costs. A solicitor or counsel acting under a representation order has a statutory right to payment of their fees, costs and disbursements in accordance with the criminal contract.

1.9 The expenses of defence or private prosecution witnesses are paid automatically from Central Funds, regardless of whether an order is made under sections 16 or 17 of the 1985 Act, unless the court gives a specific direction to the contrary.

1.10 The costs of a prosecution carried out by a public authority (e.g. the Crown Prosecution Service), including counsel’s fees and witness expenses, are paid by the public authority at its discretion. The court has no powers or discretion concerning those costs, except to order a convicted defendant or unsuccessful appellant to contribute towards or pay such costs; or to order the prosecution to pay a defendant’s costs incurred through an unreasonable act or omission.