Exolum Pipeline System Ltd, R (on the application of) v Crown Court at Great Grimsby
[2023] EWHC 2811 (Admin)
The Director of Public Prosecutions, R (on the application of) v Northampton Magistrates Court
11 September 2024
[2024] EWHC 2324 (Admin)
High Court
The CPS was sued for wrongly charging people with harming badgers' homes without getting expert advice first. A lower court judge made the CPS pay all the defendants' legal bills. The High Court agreed that the CPS made a mistake, but said that wasn't enough to make the CPS pay all the bills because the rules for making the CPS pay are very strict. The case will be reviewed to see how much – if anything – the CPS should pay.
Key Facts
- •Interested Parties (IPs) charged with interfering with badger setts (contrary to s.3 Protection of Badgers Act 1992).
- •Prosecution discontinued; IPs applied for costs under s.19 Prosecution of Offences Act 1985 and reg. 3 Costs in Criminal Cases (General) Regulations 1986.
- •District Judge ordered Claimant (Director of Public Prosecutions) to pay IPs £37,909.04 in costs.
- •Judge's rationale: Claimant's failure to obtain expert evidence before charging was an unnecessary omission.
- •Claimant sought judicial review, arguing the judge erred in law and that the omission didn't warrant a costs order.
- •Expert evidence was obtained post-charge, with experts disagreeing on the sett's activity at the time of the alleged offence.
Legal Principles
Strict construction of the Protection of Badgers Act 1992 (POBA).
POBA s.3 and s.14, DPP v Green, McLintock v Harris, Foster v CPS
Expert evidence is not legally mandated for all POBA s.3 prosecutions but is almost invariably needed when the question of current sett use is disputed.
DPP v Green, McLintock v Harris, Foster v CPS, this judgment
Costs orders against prosecutors under s.19 Prosecution of Offences Act 1985 and reg. 3 Costs in Criminal Cases (General) Regulations 1986 are rare, requiring a 'clear and stark error'.
R v Cornish, this judgment
Section 31(2A) Senior Courts Act 1981: Relief can be refused if the outcome would likely have been the same even if the error hadn't occurred.
Senior Courts Act 1981 s.31(2A), this judgment
Judicial review is a remedy of last resort. However, a deliberate choice to pursue judicial review instead of a case stated appeal, made before the appeal deadline, doesn't automatically bar relief.
R (Hacking) v Stratford Magistrates Court, this judgment
Outcomes
Ground 1 (judge erred in law) failed.
The judge correctly concluded that, given the evidence presented, obtaining expert evidence before charging was necessary; failure to do so was an error.
Ground 2 (costs order was unlawful/irrational) succeeded.
The judge didn't apply the correct test for awarding costs against a prosecutor; he failed to determine if the error was sufficiently grave to warrant a full costs order.
Judge's costs order quashed; case remitted for reconsideration of the costs application based on the correct legal principles.
The initial costs award was based on an incorrect application of the law, and the court found that alternative remedy arguments did not preclude relief.
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