News Criminal Prosecution - Private 5th Mar 2018

Brian O’Neill QC and Sarah Przybylska Win Costs Hearing Following Successful Defence of Private Prosecution

Following a fully contested two days hearing, Brian O’Neill QC and Sarah Przybylska have secured s.19 costs for their clients (two senior professionals) against a private prosecutor.  The defendants had been accused of conspiracy to defraud in a private prosecution brought against them and another by the daughter of a client.  Following successful representations the CPS took over and discontinued the prosecution.  Brian and Sarah were instructed by Richard Burger of RPC.

Our analysis of recent cases in this field indicates that the approach of the courts to questions of costs will be guided by the following principles:

(i) Private prosecutors are subject to the same obligations as public prosecutors and must conform to the highest standards; as “ministers of justice”.

(ii) Prosecutions and appeals in criminal cases are subject to the criminal costs regime.

(iii) In determining an application for costs from central funds the court will expect the private prosecutor to have sought tenders or quotations before selecting the solicitor and advocate instructed and to have ensured that steps were taken to ensure that the terms on which the solicitors and advocates were engaged were reasonable.

(iv) Whilst it has not (yet) been suggested that the defendants to a private prosecution ought to take similar steps before instructing solicitors and advocates, defendants ought to bear in mind that all costs must be reasonable and proportionate.

(v) A prosecutor should expect to have to bear the costs of a defendant in criminal proceedings where, on proper analysis, the prosecution never had any realistic chance of success and whether, in that sense, it was a reasonable and proper prosecution.

(vi) A private prosecutor would not be liable for costs merely because the prosecution failed or was withdrawn.

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