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1. The court may order a convicted defendant to pay what it considers to be “just and reasonable” costs to the prosecutor 1.
2. In R v Associated Octel Ltd (Costs) 2, the Court of Appeal stated that the prosecution may claim the costs of carrying out the investigation with a view to prosecuting the defendant, provided a prosecution resulted and the defendant was convicted 3. In that case, the Court held that it was just and reasonable that HSE should be awarded the whole of the costs that arose out of the incident for which the convicted defendant was responsible.
3. The Court of Appeal in Howe 4 adopted the approach set out in Associated Octel. It stated that there is no reason in principle either for scaling down the costs awarded so as not to exceed the fine or for not ordering a defendant to pay the whole of the prosecution costs, in addition to the fine, where the defendant is in a position to pay 5. There is no requirement that any sum ordered to be paid to a prosecutor by way of costs should stand in an arithmetical relationship to any fine imposed, but costs ordered to be paid should not ordinarily be greatly at variance to that fine 6
4. It is HSE policy to seek to recover the full costs of any investigation and prosecution which have been ‘just and reasonably’ incurred from convicted defendants. The award of costs is at the discretion of the court and may be less than the total amount sought by the prosecution. The court must look at the whole sum (fine and costs) that it is minded to order and consider the impact on the defendant 7. If the total exceeds the sum the defendant can reasonably be ordered to pay, the court will use its discretion to achieve an acceptable total 8. Any compensation order will take priority over the fine 9.
5. In preparing the bill of costs, time should be costed at full economic cost for each grade from the most recent version of the ‘Prosecution Ready Reckoner' (contact the Financial Accounting and Advice team).
6. All cost applications should include VAT for Solicitors and Counsel costs. Any enquiries about this should be directed to HSE’s VAT Liaison Officer, PEFD Finance Unit 2 (FAA).
7. In all cases where the defendant has pleaded guilty or convicted after trial, you should apply for an award of costs against the defendant. You should ask the defence to agree your bill of costs before the hearing and serve it on them in advance. Where the defendant has pleaded guilty, you should make an application for costs after outlining the facts of the case to the court. The court should be informed of any agreement with the defence in respect of costs. Where the bill of costs has not been agreed, you should present the bill of costs to the court.
8. In all CPS prosecutions where HSE inspectors were involved in the investigation, you should ask the CPS to claim HSE’s costs. HSE takes the view that there is no reason why it may not be ‘just and reasonable’ to order a defendant in a prosecution conducted by the CPS to pay investigative costs incurred by another body. If you require further guidance on this please contact Legal Advisors Office.
9. A corporate or individual defendant may hold liability insurance cover which includes the payment of legal costs. This may include provision for prosecution and/or the defendant's own costs. If it is anticipated that the defendant will argue they are unable to pay costs in full, the prosecutor should check the position with the defence prior to sentence. The prosecutor should then make the sentencing judge aware of the position when appropriate as it may affect the judge's order on both quantum of costs and time for payment.
10. The amount to be awarded must be specified by the court in the costs order 11. There is no power for the court to tax costs.12
11. The court may apportion costs between co-defendants. If a court decides that one co-defendant is more responsible than the others for the criminal conduct for which they are convicted, then it may order that defendant to pay a greater share of the costs than he would have had to pay if he had been tried alone 13. This may be a share of the whole costs of the prosecution, including costs incurred before that defendant was brought into the proceedings 14.
12. The procedure for preparing the prosecution Bill of Costs is detailed in Stage 4.4 of the prosecution procedure. The process differs depending on whether Fee for Intervention (FFI) applies to the intervention. Effectively, where FFI applies, the majority of costs incurred during such interventions will be recovered via FFI, while those exclusively related to bringing a prosecution case to court will be included in the Bill of Costs submitted to the court.
13. The definition of costs is very wide and is capable of covering Inquest costs although it should be emphasised that the award of costs is very much within the discretion of the Court. Aspects of the preparation for, and participation in, an Inquest may be said to be an element of the investigation.
14. The inquest process is designed to inquire into and to bring out matters of fact. HSE usually needs to be present at an inquest to acquire and where necessary follow up new facts/nuances/leads. The need to incur such costs has been generated by the loss of life and the incident which led to the loss of life is usually the event which precipitates HSE’s investigation. It may be said that those inquest costs which were part of the investigation have come about because of the defendant’s breach and it is therefore “just and reasonable” that such costs should be borne by the defendant rather than the public purse.
15. Consequently investigators should clearly identify costs which are associated with the Inquest in the Bill of Costs. For example, meeting the Coroner including pre inquest reviews, preparing a report for the Coroner and attendance at the inquest itself including any legal costs which are attributable to the Inquest should be clearly set out in the Bill. Whilst each case should be considered on its merits such costs should usually form part of HSE’s application for costs against the defendant.
16. If you require further advice please contact Legal Advisors Office.
17. Where FFI is not applicable, e.g. prosecutions after investigations which started before 1st October 2012 or for breaches of the Employers’ Liability Compulsory Insurance Act 1969 as amended, or the Supply of Machinery (Safety) Regulations 2008, all costs associated with the investigation and prosecution should be recorded and form the basis of a costs application to the court.
18. Details of costs incurred by HSE in the course of the investigation and prosecution should be fully set out at each stage of the proceedings and copies taken to court 15. The bill of costs should summarise:
19. A sample [Bill of Costs SI44] can be found later in this section.
20. You should note that the various charging regimes may affect the costs which may be claimed; for example, HID may make a separate charge for certain of its investigations and will not claim the costs of these following a prosecution 16.
21. Table 1: Investigation Costs to be claimed following Non-FFI Investigations and Table 2: Prosecution Costs for all Prosecution Cases (FFI and Non-FFI) appended to Stage 4.4 of the prosecution procedure provide lists of what is likely to be deemed “just and reasonable”, and therefore may, or may not, be included in the prosecution Bill of Costs 18.
22. The majority of costs incurred during interventions will be recovered via FFI while those exclusively related to bringing a prosecution case should be included in the Bill of Costs submitted to the court.
23. A Bill of Costs should otherwise be prepared for use in court in the usual way. As HSE is required by statute to recover the majority of investigation costs (for interventions on and after 1/10/12) separately you should only include the costs directly related to the prosecution i.e. work normally carried out after the laying of an information
24. Legal Costs incurred for the provision of legal advice in preparation for a possible prosecution (rather than as part of the investigation) are not cost recoverable under FFI. Consequently such costs should be included in the Bill of Costs and claimed at the sentencing hearing.
25. In most cases the FFI scheme will be of little or no relevance to the sentencing court. It is not its function to adjudicate upon those charges as they do not form part of HSE’s applications for costs. The basis of HSE’s applications for costs, from the commencement of proceedings, remains unchanged and there is no double counting of costs. The court may order a convicted defendant to pay what it considers to be “just and reasonable” costs to the prosecutor. Therefore, the law remains the same.
26. The prosecutor will need to know, in each case, what fee the defendant has been invoiced for, how this total was arrived at as well as whether it has been paid. In cases where the defendant is expected to raise the issue of costs already recovered via FFI in their mitigation, the prosecutor should in closing their facts of the case explain to the court that:
27. In respect of all offences, the court may make a 'defendant's costs order' in favour of a successful defendant, the effect of which is that his/her costs will be paid out of central funds 20 i.e from monies provided by the tax payer not the prosecutor. Such an order should normally be made unless there are positive reasons for not doing so 21.
The amount to be paid is the sum the court considers reasonably sufficient to compensate the defendant for expenses properly incurred in the proceedings. 22 A costs order will be made following a successful plea of no case to answer or on acquittal, unless there are positive reasons for not doing so (for example, where the defendant's own conduct has brought suspicion on him/herself and misled the prosecution into thinking that the case against him/her was stronger than it actually was). 23
28. Amendments in relation to Defence Costs Orders (DCO) apply to proceedings commenced on or after 1st October 2012. For these purposes, proceedings commence when a summons is issued in the Magistrates Court or a case is committed or sent to the Crown Court.
29. The changes mean that legal costs (which are defined as fees, charges, disbursements and other amounts payable in respect of advocacy services or litigation services, including expert witness costs) cannot be included in a DCO unless the defendant is an individual (eg not a company etc ) and is acquitted in the Magistrates Court or is successful on an appeal to the Crown Court. An acquitted corporate defendant cannot be awarded legal costs in the Magistrates Court or Crown Court and an individual only in the Magistrates Court or on appeal in the Crown Court. If costs are awarded they will be at legal aid rates.
30. This may mean that, in cases in which an acquitted defendant cannot recover legal costs under a DCO, they seek to do so by making an application for a "wasted costs" order against the prosecution under s19 Prosecution of Offences Act 1985. To do so the Court would have to be satisfied that the costs had been incurred as a result of an unnecessary or improper act or omission (see paras 29-34 below). Where there has simply been an acquittal by a jury or magistrates court, it is most unlikely that the court would order any costs against the prosecution. However, if the case is dismissed at the end of the prosecution case, or the prosecution drop or do not proceed on some or all of the charges, the defence may seek to recover their costs in this way. This should be considered when deciding whether to accept pleas to some but not all charges.
31 .Costs may be awarded against any party to the proceedings in respect of sums incurred by one party as a result of an unnecessary or improper act or omission by or on behalf of another party (a ‘section 19 order’) 24. The section could not be used as a means of impugning prosecutorial discretion given to the DPP and other state prosecutors by imposing costs on them. It was not the judge's role to discipline the prosecutor for what he considered was an aberrant exercise of prosecutorial discretion.25
32. HSE has a responsibility to protect public funds and you should, therefore, apply to the court where costs have been incurred as a result of unnecessary or improper 26 conduct by the defence, even in unsuccessful cases. The court must hear all parties and may then order that all or part of the costs so incurred by one party should be paid by another. The court must be reminded to specify the amount of costs to be paid 27 and should also be encouraged to give reasons for the award.
33. HSE may indemnify any inspector against whom a section 19 order has been made 28.
34. Courts may order a legal or other representative (i.e. any person exercising a right of audience or a right to conduct litigation) to meet the whole or any part of any wasted costs 29. ‘Wasted costs’ are those incurred as a result of any improper, unreasonable or negligent act or omission 30 on the part of any representative or an employee of a representative 31.
35. Even if you win a case and are awarded costs, such acts or omissions on your behalf may result in a wasted costs order being made against you. Should you apply for a wasted costs order to be made against a defendant, it is for the court to decide whether s/he or his/her legal representative should bear the costs, and you should draw the court’s attention to sections 19 and 19A of the Prosecution of Offences Act 1985.
36. The court must specify the reasons for making the order 32 and the amount of wasted costs, and must allow the legal or other representatives and any party to the proceedings to make representations 33.
37. The Senior Courts (which includes the Crown Court) 34 retains a general power under its inherent jurisdiction over officers of the court to order a solicitor to pay any costs thrown away by reason of a serious dereliction of duty on his/her part to the court 35. No such order shall be made unless reasonable notice has been given to the solicitor of the matter alleged, and a reasonable opportunity given to be heard in reply 36. This power should only be used in exceptional circumstances not covered by sections 19 and 19A 37.
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