On 17 March 2021, the High Court of Justice, Queen’s Bench Division, unanimously allowed an appeal by the Football Association Premier League (FAPL) and Sports Information Services Ltd (SISL) of a decision by Costs Judge (Master) Rowley, who had refused to award the costs incurred by FAPL and SISL prior to the commencement of criminal private prosecutions to be paid from central funds..
The High Court upheld the appeal, deciding that costs incurred prior to the issue of a summons are recoverable. The decision is important for safeguarding private prosecutions and ensuring that reasonable costs incurred by a private prosecutor are reimbursed so as not to deter private prosecutions.
The Appellants both conducted private prosecutions to which the defendants had either pleaded guilty or were found guilty. In each case an order was made that the private prosecutors should receive costs out of central funds pursuant to s.17 of the Prosecution of Offences Act 1985 (POA).
An initial determination of costs was conducted by the National Taxing Team (now the Criminal Cases Unit). Costs and expenses incurred prior to the commencement of criminal proceedings were not allowed. Such costs include investigative costs. These sums were substantial, being £87,050.33 incurred by the FAPL and £78,846.30 incurred by SISL.
The private prosecutors appealed to a Costs Judge and both appeals were heard by Master Rowley in August 2020. Master Rowley accepted evidence which said that if investigative costs were not recoverable, then essentially private prosecutions could not be brought, however, he held that costs or expenses incurred before the commencement of the criminal proceedings could not be recovered out of central funds. The appeal of his decision was ultimately heard by a Divisional Court composed of Dingemans LJ, Nicol and O’Farrell JJ.
The issue was phrased by Master Rowley as: ‘What is the correct approach for the Court to apply in determining the level and extent of recovery of expenses where they are incurred before the commencement of proceedings?’
Master Rowley’s Decision
Master Rowley recognised that the same phrase ‘in the proceedings’ was used in both s.17(1) (prosecution costs out of central funds) and s.16(6) (defence costs out of central funds) of the POA. He accepted that the same meaning should be given to the phrase, in both contexts. However, whilst he considered the case R (Hale) v North Sefton JJs  EWHC 257 allowed some elasticity in the recovery of a defendant’s costs incurred before proceedings had begun, he considered that this elasticity was fairly limited in the context of a prosecutor’s costs incurred before an information was laid and would not stretch to the beginning of an investigation into a private prosecution. In Hale, the court considered attendance prior to charge was encompassed by the phrase ‘in the proceedings’.
Master Rowley also concluded: ““in the proceedings” cannot include all investigation and other pre-charge work which may eventually bear fruit in a conviction. To take that construction of the phrase would be to provide the publicly funded safety-net which was deprecated by Lod Bridge [in Steele Ford and Newton  1 AC 22].”
The Decision of the High Court
Nicol J wrote the lead judgment to which Dingemans and O’Farrell JJ both agreed.
Nicol J considered that Master Rowley was wrong to treat the commencement of the prosecution as a bright line, before which no costs incurred by the private prosecutor could be reimbursed out of central funds. He considered that given ‘in the proceedings’ was used both in s.17(1) and s.16(6) of the POA, Parliament must have intended the phrase to have the same meaning in both contexts. Yet, taking Master Rowley’s argument, a defendant could be reimbursed out of central funds for costs incurred before the commencement of the prosecution, whilst prosecutors could not.
He said that even if costs were incurred before the issue of a summons or the laying of an information, steps may properly be regarded as having been taken ‘in the proceedings’ for the purposes of s.17(1) or s.16(6). He gave the example of drafting the summons or charge, assembling witness statements to be used in the prosecution or in assembling materials which the prosecutor would be required to produce by way of disclosure.
Importantly, Nicol J considered Murli Mirchandani v Lord Chancellor  EWCA Civ 1260. He agreed with the proposition by Davis LJ in Mirchandani that there were strong policy reasons as to why private prosecutors costs recoverable out of central funds were intended to be more generous than the circumstances in which a defendant’s costs could be recouped from central funds. He noted that the decision of Master Rowley has the opposite effect.
He also noted that both Mirchandani and Zinga emphasised the public interest in private prosecutions, particularly in the fields of fraud and intellectual property rights. He noted that while there were limits on the extent to which a purposive interpretation could trump clear language to the contrary, he considered there to be no such clear language in this case.
He drew a parallel with Mirchandani in which it was said that, absent the enforcement of a confiscation order, confiscation proceedings would be ‘toothless’. Similarly, he found that if investigative costs could not be recovered out of central funds, private prosecutions would not get off the ground (as had been argued by the Appellants).
What Does this Mean for Private Prosecutors?
Private prosecutors are able to apply for costs incurred prior to the issue of a summons. This includes investigative costs which must be reasonable.
Private prosecutions are expressly preserved by Parliament by way of the POA. This judgment importantly highlights this and endorses the value of private prosecutions. Such value was reiterated in Mirchandani at :
“… there are policy reasons why provisions governing payment to a private prosecutor may be more favourable than those applying to a defendant: namely a desire not to deter private prosecutions: see R (Virgin Media) v Zinga  EWCA Crim 1823,  Costs LR at .”