The Divisional Court quashed the order of Judge Sanders at Wood Green Crown Court on 12 April 1991 that the CPS should pay the whole of the defence costs incurred after committal in the case of R v Brealey, Aram and Lee.
In May 1990, the defendants were committed for trial at Wood Green. Thereafter, the CPS neglected to properly prepare the prosecution case.
On 8 April 1991, the date fixed for trial, the defendants applied for the trial to be stayed as an abuse of process. The prosecution decided to offer no evidence and verdicts of not guilty were recorded.
The defendants' applications for costs were under regulation 3 of the Costs in Criminal Cases (General) Regulations 1986.
The prosecution accepted that the costs wasted on the hearing in the Crown Court were costs incurred as a result of proven improper omissions within regulation 3. Judge Sanders made the wider order.
On the prosecution's application for judicial review, the first issue was whether the Divisional Court's jurisdiction was excluded by section 29(3) of the Supreme Court 1981 because the judicial review was in relation to the Crown Court's jurisdiction 'in matters relating to trial on indictment', and the second was whether the order was flawed and should be quashed.
Philip Singer (CPS) represented the DPP.
LORD JUSTICE MANN said that the order by Judge Sanders was not a decision affecting the conduct of a trial on indictment because assuming there had been such a trial, it had been earlier concluded on the recording of verdicts of not guilty.
The question was thus narrowed to an inquiry as to whether the making of the order, although posterior, was 'so intimately bound up with the trial process that it must be treated as an integral part of it': Re Sampson (1987) 1 WLR 194.
The making of an order for costs at the conclusion of a trial was to be treated as an integral part of the trial process, and if it was adverse to the prosecutor, he would have no right of appeal while an application for judicial review would be met by the exclusion in section 29(3).
The recorded verdicts had the same effect as if the defendants had been tried and acquitted on a verdict of a jury. What occurred here plainly did not fall within the ordinary meaning of the word 'trial'. The order was not within the the exclusion of section 29(3). It might be thought strange that a similar order made after a trial would be within the exclusion but that was an inevitable consequence of the established approach to the construction of section 29(3).
As to the order, the judge had either neglected the need for a causal relationship between the CPS's act or omission and costs incurred or else had assumed that all the defendants' costs after committal were incurred as a consequence of the acts or omissions of the CPS. The order was therefore flawed and should be quashed and the applications for costs be reheard.
Mr Justice Leonard agreed.