Re Somaia and the Recovery of Costs in Enforcement Proceedings in the High Court
Introduction
It is clear that private prosecutors may pursue confiscation proceedings in the Crown Court: see David Whittaker QC’s article. Furthermore, if successful, they can expect to recover from central funds costs incurred in such proceedings and in appeals against confiscation orders (although reference should be made to R (Virgin Media Ltd) v. Zinga[1] for guidance on the amount likely to be recovered).
The position, however, is different in enforcement proceedings, according to the recent case of Re Somaia.[2] Although a private prosecutor may apply for a receiver to be appointed in respect of the defendant’s assets, he cannot recover from central funds any costs incurred in doing so. Such proceedings are civil proceedings, and so there is no power to award costs from central funds.
Re Somaia concerned enforcement proceedings in the High Court, brought under section 80 of the CJA 1988. As explained below, an argument could be advanced that the reasoning in Re Somaia would not apply to enforcement proceedings in the Crown Court, brought under section 50 of POCA 2002. However, on balance, it appears that a Crown Court judge would find that costs from central funds cannot be awarded in such proceedings.
Analysis of legislation in Re Somaia
The power to award a private prosecutor costs from central funds can be found in section 17 of the POA 1985. This provides that a court may award such costs in any proceedings in respect of an indictable offence; and in any proceedings before a Divisional Court of the QBD or the Supreme Court in respect of a summary offence.
The provisions present something of a conundrum, according to Jefford J. It would make sense if section 17 (prosecution costs from central funds) applied to the same proceedings as section 16 (defence costs from central funds); after all, it would be surprising if a successful prosecutor could recover costs but a successful defendant in the same type of proceedings could not. On the other hand, if Parliament had intended sections 16 and 17 to apply to the same types of proceedings, identical wording would have been used. In section 16, certain types of proceedings are prescribed, whereas in section 17, the broader expression “in respect of an indictable offence” is used, suggesting that the ambit of section 17 could be wider. Moreover, the public interest in enforcement proceedings would be a persuasive reason to section 17 more broadly.[3]
However, Jefford J agreed with the Lord Chancellor’s submission that section 17 should be interpreted narrowly: as with section 16, section 17 did not apply to enforcement proceedings. The “most persuasive” of the arguments in favour of the narrow interpretation was that the broader interpretation would be inconsistent with regulations[4] made under the POA 1985. The regulations provide that costs shall be determined by the appropriate authority. There is no appropriate authority in respect of proceedings in the High Court (other than in the Divisional Court), and so Parliament could not have intended section 17 to apply to enforcement proceedings under the CJA 1988, which take place before a single judge in the High Court.[5]
Enforcement proceedings under POCA 2002
Under the POCA 2002 regime, enforcement proceedings take place in the Crown Court. Therefore, the absence of an appropriate authority to determine costs incurred in proceedings before a single High Court judge would be immaterial. Proceedings in the Crown Court are catered for in the regulations,[6] and so, it follows, there would be no difficulty in interpreting section 17 widely, so to include enforcement proceedings under POCA 2002.
Therefore, it could be argued that an important part of Jefford J’s reasoning does not apply to enforcement proceedings under POCA 2002, and so the decision in Re Somaia does not prevent a private prosecutor from being awarded costs from central funds in such proceedings. Moreover, Re Somaia, being a first instance decision of the High Court, would not bind a Crown Court judge.
However, in her judgment, Jefford J hinted that there were several reasons why costs from central funds may not be recovered in enforcement proceedings under POCA 2002. She said, “It is unclear to me what the Lord Chancellor’s position would be in respect of [proceedings under POCA 2002] but I infer that it would be argued that that does not alter the position under s. 17 because the enforcement proceedings are still not ‘criminal proceedings’ but involve the Crown Court exercising a civil jurisdiction”.[7] She referred to the apparent distinction made in the Practice Direction[8] between costs under Part II of the POA 1985,[9] and awards of costs between the parties in restraint or receivership proceedings under POCA 2002. She went on to observe, “It is arguable that the Criminal Procedure Rules and [the relevant part of] the Regulations do make provision for assessment where the enforcement proceedings are in the Crown Court but that assumes that an order for payment out of central funds may be made under section 17”.[10]
Furthermore, the legislative background to the cost regime in civil cases, examined by the House of Lords in Steele Ford and Newton v Crown Prosecution Service,[11] supports the argument that absent specific provisions, costs incurred in civil proceedings are not recoverable from central funds.
Therefore, whilst it could be argued that Re Somaia does not apply to proceedings under POCA 2002, and despite the clear public interest in ensuring that confiscation orders are enforced, it appears unlikely that private prosecutors would be able to recover from central funds costs incurred in enforcement proceedings.
[1] [2014] EWCA Crim 1823. For overview of the costs regime applicable to private prosecutions, see Brian O’Neill QC and Sarah Przybylska’s 2017 article.
[2] [2019] EWHC 1227 (QB), 15th May 2019
[3] Re Somaia para 25
[4] Costs in Criminal Cases (General) Regulations 1986, SI 1986/1335
[5] Re Somaia paras 27 to 29
[6] Regulation 5(1)(2)(c) of the Costs in Criminal Cases (General) Regulations 1986
[7] Re Somaia para 36
[8] Practice Direction (Costs in Criminal Proceedings) 2015 [2015] EWCA Crim 1568 (as amended)
[9] Section 17 falls within Part II
[10] Re Somaia para 38
[11] (1993) 97 Cr App R 376
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