Expert Witness Journal Dec 24 - Journal - Page 102
prosecution must be starkly improper such that no
great investigation into the facts or decision-making
process is necessary to establish it (Evans).
obtained expert evidence the judge did not take a step
back and consider whether the error was of such a
grave or stark kind that a costs order under section 19
was appropriate.”
(d) Where the case fails as a matter of law, the
prosecutor may be more open to a claim that the decision to charge was improper, but even then, that
does not necessarily follow because “no one has a
monopoly of legal wisdom, and many legal points are
properly arguable” (Evans).
As such, the costs order was quashed, and the case
remitted for determination of costs on the correct legal
basis.
Opinion
It is perhaps of interest that the High Court (and indeed the court below) do not appear to have considered the issue of the causation of the Defence costs. If
the Prosecution had indeed obtaining expert evidence
as the District Judge found they ought to have, and
assuming that Mr. Pearce was the expert instructed,
they would have had sufficient evidence to charge the
defendants. It is difficult to see how the costs in question were incurred by virtue of the failure to obtain
such evidence; the Defence costs, or at least a significant portion of them, would likely have been the same
even if Mr Pearce had been instructed at the outset.
(e) It is important that s.19 applications are not used
to attack decisions to prosecute by way of a collateral
challenge, and the courts must be ever vigilant to
avoid any temptation to impose too high a burden or
standard on a public prosecuting authority in respect
of prosecution decisions (R v P, Evans).
(f) In consequence of the foregoing principles, the
granting of a s.19 application will be “very rare” and
will be “restricted to those exceptional cases where the
prosecution has made a clear and stark error as a result of which a defendant has incurred costs for which
it is appropriate to compensate him” (Evans).”
Author
Carolina Cabral, Senior associate
The Court then considered the District Judge’s
approach, and concluded that he had not applied the
correct test, noting at paragraph 95 (emphasis added):
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“[The District Judge] did not approach the matter on
the basis that something more than an error resulting
in costs being incurred and even more than an error
leading to an unsuccessful prosecution was needed.
Having concluded that the Claimant had erred in
charging the Interested Parties without having
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EXPERT WITNESS JOURNAL
100
DECEMBER 2024
