2.1 Defence Costs from the Central Funds

An order in favour of a defendant for payment of his costs may be made under section 16 of the 1985 Act (‘a Defendant’s Costs Order). A Defendant’s Costs Order may be made in favour of an accused:

(a) In a Magistrates’ Court where: an information laid before a Justice of the Peace for any area charging any person with an offence is not proceeded with; a Magistrates’ Court determines not to transfer for trial proceedings for an indictable offence; or the Magistrates’ Court dealing summarily with an offence dismisses the information.

(b) In the Crown Court: where a person is not tried for an offence for which he has been indicted or in respect of which proceedings against him have been sent for trial or transferred for trial; a notice of transfer is given under a relevant transfer provision, but a person in relation to whose case it is given is not tried on a charge to which it relates; or any person is tried on indictment and acquitted on any count in the indictment.

(c) Also in the Crown Court where a person convicted of an offence by a Magistrates’ Court appeals under Section 108 of the Magistrates Courts Act 1980 and, in consequence of the decision on appeal, the conviction is set aside or a less severe punishment is awarded.

(d) In the Administrative Court: on determining proceedings in a criminal cause or matter.

(e) In the Court of Appeal (Criminal Division): (i) in favour of a successful appellant under Part 1 of the Criminal Appeal Act 1968; (ii) in respect of an appeal against an order or ruling at a preparatory hearing; (iii) to recover the costs of representing an acquitted defendant in respect of whom there is an Attorney General’s Reference under section 36 of the Criminal Justice Act 1972; and, (iv) in the case of a person whose sentence is reviewed under section 36 of the Criminal Justice Act 1988 [].

2.2 The court has power to make a defendant’s Costs Order for payment of part only of the expenses incurred under section 16(7) of the 1985 Act, where a court is of the opinion that there are circumstances that make it inappropriate that the person in whose favour the Order is made should recover the full amount.

2.3 As is clear from paragraph 2.3 of the Practice Direction http://www.courtservice.gov.uk/cms/media/costs_pd_180504.pdf the court has a discretion, in the light of the circumstances of the particular case, whether to make such an award of costs. An order should normally be made unless there are positive reasons for not doing so. Regard must be had to the presumption of innocence. If the court declines to make an order for costs out of Central Funds the Judge should explain in open court that the reason for not making an order does not involve any suggestion that the defendant is guilty of any criminal conduct but that the order is refused because of the positive reason that should be identified, e.g. that the defendant’s own conduct has brought suspicion on himself and has misled the prosecution into thinking that the case against him was stronger than it was.

2.4 Amount of costs payable

The amount of the costs shall be ‘such amount as the court considers reasonably sufficient to compensate him for any expenses properly incurred by him in the proceedings’. The effect of section 21(4A) of the 1985 Act is that the amount of any costs payable under the representation order is not taken into account in the determination of the amount payable out of Central Funds under the defendant’s Costs Order. Thus the amount payable out of Central Funds in such cases will reflect only the defendant’s out of pocket expenses.

Where a defendant has been represented privately he will be personally liable to discharge the relevant costs and would therefore benefit from such an order. A defendant who is acquitted is entitled to an allowance for travelling and subsistence as if he had been a witness. An allowance which he would not receive if no defendant’s costs order was made. He is not entitled to be paid his loss of earnings. The solicitors acting for a CDS-funded defendant may, in certain circumstances, charge him, pursuant to Regulation 22 of the Criminal Defence Service (General) (No.2) Regulations 2001 [http://www.legislation.hmso.gov.uk/si/si2001/20011437.htm], for the expenses or fees incurred in preparing, obtaining or considering any report, opinion or further evidence provided by an expert witness or otherwise or obtaining any transcripts or recordings where an application for an authority to incur such fees or expenses has been refused by the Costs Committee. Those expenses would be covered by a defendant’s costs order. The Judge should therefore make a defendant’s costs order in favour of an acquitted defendant, whether legally assisted or not, in every case when it is appropriate to do so.

2.5 Ascertaining the amount of costs

The amount of the costs must:

(a) be specified in the order if the amount is agreed by the person in whose favour the order is made, or

(b) be determined in accordance with Part III of the General Regulations.

2.6 A Defendant’s Costs Order will include any costs incurred in any court below (section 21(1) 1985 Act). If the court wishes to exclude the costs incurred before the Magistrates or before the Crown Court then it must make an order for payment of part only of the costs under section 16(7) and must specify the amount in its order.

2.7 When making a defendant’s costs order the court should have regard to paragraph 5.1 of the Practice Direction http://www.courtservice.gov.uk/cms/media/costs_pd_180504.pdf of 18 May 2004. The following points need to be borne in mind:

(a) Where the Judge is minded to disallow or limit costs out of Central Funds or to make observations for consideration by the determining officer, it is vital that the procedure set out in the Practice Direction be followed in detail. It is not sufficient for the Judge to pass adverse comments on the performance of a party or his counsel or solicitor to the court clerk confidentially or unofficially, with the intention that they should be reflected on determination, without the person criticised first being given an opportunity by the Judge to show cause why the adverse comment should not have been made.
(b) Counsel’s clerks and solicitors regularly appear before determining officers and Leading and Junior counsel and solicitors appear in person before Costs Judges in support of their own appeals. It is therefore essential that the Judge’s observations, be they complimentary or critical be explicit and detailed if they are to be properly reflected on determination and the precise terms of such observations must be entered on the court log.