Funding and Costs

Question 0

What is the preamble wording regarding interests of Justice?

Answer 0

In deciding what the interests of justice consist of for the purposes of such a determination, the following factors must be taken into account—

Question 1

What two things must be examined to determine whether to give a person legal funding?

Answer 1

1. Means test.

2. ‘Interests of Justice’ test.

Question 2

What is the first issue regarding the interests of justice (hint: losses)?

Answer 2

(a)​whether, if any matter arising in the proceedings is decided against the individual, the individual would be likely to lose his or her liberty or livelihood or to suffer serious damage to his or her reputation.

Question 3

What is the second issue for interests of justice test?

Answer 3

(b)​whether the determination of any matter arising in the proceedings may involve consideration of a substantial question of law.

Question 4

The third issue of interests of justice test (hint: difficulty)?

Answer 4

(c)​whether the individual may be unable to understand the proceedings or to state his or her own case.

Question 5

What are final two issues to interests of justice test?

Answer 5

1. whether the proceedings may involve the tracing, interviewing or expert cross-examination of witnesses on behalf of the individual, and
2. Whether it is in the interests of another?

Question 6

What is the costs position of a defendant who is acquitted?

Answer 6

A defendant who is acquitted (or whose appeal against conviction succeeds) may have his costs paid from central funds. Costs which have been covered through legal aid are excluded.

Question 7

When may an acquitted defendant not get their costs?

Answer 7

The Practice Direction says that a defendant’s costs order ‘should normally be made unless there are positive reasons for not doing so, for example, where 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’.

Question 8

What is the costs position of: acquitted corporate defendants, and individual
Defendants in the Mags or Crown Courts?

Answer 8

Under s 16A(2)-(5)), corporate defendants cannot recover their legal costs; individuals can recover their legal costs in respect of proceedings in a magistrates’ court but not in respect of Crown Court proceedings (unless those costs relate to an appeal against conviction and/or sentence from the magistrates’ court). This means that legal costs incurred in the context of a trial on indictment can no longer be recovered.

Question 9

How are legal costs defined?

Answer 9

Legal costs are defined as ‘fees, charges, disbursements and other amounts payable in respect of advocacy services or litigation services including, in particular, expert witness costs’ (s 16A(10)).

Question 10

How are public prosecutors paid their costs?

When will they not get their costs?

Answer 10

Private prosecutors (but not public prosecutors, such as the Crown Prosecution Service) to obtain their costs from central funds. According to the Practice Direction, an order should be made save where there is good reason for not doing so, for example, where proceedings have been instituted or continued without good cause.

Question 11

What is the position if D is convicted?

Answer 11

Where a defendant is convicted, the court may order that he pays some or all of the prosecution costs. An order should be made where the court is satisfied that the defendant has the means and the ability to pay. It follows that the court must take account of the defendant’s means when deciding whether to make an order and, if so, the amount.

Question 12

What must a judge, making a costs order, bear in mind? (Proposition 1)

Answer 12

An order to pay costs to the prosecutor should never exceed the sum which, having regard to the defendant’s means and any other financial order imposed upon him, the defendant is able to pay and which it is reasonable to order the defendant to pay.

Question 13

What must a judge, making a costs order, bear in mind? (Proposition 2)

Answer 13

Such an order should never exceed the sum which the prosecutor has actually and reasonably incurred.

Question 14

What must a judge, making a costs order, bear in mind? (Proposition 3)

Answer 14

The purpose of such an order is to compensate the prosecutor and not to punish the defendant. Where the defendant has by his conduct put the prosecutor to avoidable expense he may, subject to his means, be ordered to pay some or all of that sum to the prosecutor. But he is not to be punished for exercising a constitutional right to defend himself…

Question 15

What must a judge, making a costs order, bear in mind? (Proposition 4)

Answer 15

0While there is no requirement that any sum ordered … to be paid to a prosecutor by way of costs should stand in any arithmetical relationship to any fine imposed, the costs ordered to be paid should not in the ordinary way be grossly disproportionate to the fine.

Question 16

What must a judge, making a costs order, bear in mind? (Proposition 5)

Answer 16

It is for the defendant facing a financial penalty by way of fine or an order to pay costs to a prosecutor to disclose to [the court] such data relevant to his financial position as will enable [the court] to assess what he can reasonably afford to pay. In the absence of such disclosure [the court] may draw reasonable inferences as to the defendant’s means from evidence they have heard and from all the circumstances of the case.

Question 17

What must a judge, making a costs order, bear in mind? (Proposition 6)

Answer 17

It is incumbent on any court which proposes to make any financial order against a defendant, whether by way of fine or costs, to give the defendant a fair opportunity to adduce any relevant financial information and make any appropriate submissions.

Question 18

When may a court make a wasted costs order?

Answer 18

Where the court is satisfied that one party to criminal proceedings has incurred costs as a result of an unnecessary or improper act or omission by, or on behalf of, another party to the proceedings.

Question 19

Who else may be the subject of a wasted costs order? What is the first of the relevant tests?

Answer 19

A legal representative.

A three-stage test or approach is recommended when a wasted costs order is contemplated. (i) Has there been an improper, unreasonable or negligent act or omission?

(ii) As a result have any costs been incurred by a party?
(iii) If the answers to (i) and (ii) are “Yes,” should the court exercise its discretion to disallow or order the representative to meet the whole or any part of the relevant costs, and if so what specific sum is involved?

Question 20

What is the threshold for wasted costs order vs legal representative in second test?

Answer 20

A mere mistake is not sufficient to justify an order. There must be a more serious error.

Question 21

When may costs orders against third parties be made? When? What is threshold test for awarding so?

Answer 21

Against someone who is not a party to the proceedings if there has been serious misconduct by the third party, and the court considers it appropriate, having regard to that misconduct, to make a third party costs order against him.