The Unseemly Disparity of Central Funds Costs as Between Private Prosecutor And Acquitted Defendant

Thursday, 11 January 2024 | David Janes

After all an innocent  defendant has  endured, the ordeal and ignomny of a criminal trial, the final rebuff of the criminal justice system is  that he will not recover his costs (save in limited circumstances to a paltry amount) out of central funds . After all the defendant has been through – not only the trial but normally years of trauma during the investigation and then the interminable wait leading up to the trial – this rebuff is the final straw.


The defendant will have out laid a very considerable sum – may be his life savings, or sought assistance from his family and friends – and although he or she has been vindicated by the verdict of the jury, the court is constrained from allowing their legal costs to be recouped out of central funds, except under certain conditions where legal aid has been applied for and refused on a means basis,  and then at the applicable legal aid rate, normally a fraction of what the defendant has paid his lawyers.


Conversely, a private prosecutor, whether an individual or a corporation such as the Post Office*, other than a public authority, may choose to prosecute a defendant in the safe knowledge that whatever the result or outcome of the case – whether conviction or acquittal – their costs will almost undoubtedly be recouped from central funds (i.e. the tax payer) at commercial rates.


The ultimate irony follows that if a private prosecutor, say the Post Office, prosecutes an innocent defendant (as was the case in virtually every Horizon instance) , the prosecutor is entitled to seek their costs out of central funds – even if the defendant is acquitted – whereas the defendant who has been treated so ignominiously and is acquitted  is left without such recompense . Surely this is an exact reversal of what the position should be , and an afront to justice. Nevertheless this remains to this day the position in respect of private prosecutions.


It will be interesting to see what steps, if any, are taken to stop and hopefully reverse this sorry state of affairs in light of the Post Office scandal.


((Please see James Mullion’s article here for further guidance on private prosecutor’s costs.))


*Although its shares are owned by the government, the Post Office is a private limited company and therefore would not appear not to be a public authority as defined for the purposes of section 17 Prosecution of Offence Act 1985. However, the position is not crystal clear and the CCRC were unclear of the position when presenting their report to Parliament in relation to their referral to the Court of Appeal.

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