Magistrates’ Courts Rules Committee
Costs in criminal cases
1. Introduction.................................................................................................... 3
2. Background ................................................................................................... 5
3. The responses to the consultation............................................................. 7
4. Conclusions and next steps ........................................................................ 9
1. 1 This document sets out the final decisions of the Magistrates’
Courts Rules Committee in response to the consultation paper
Costs in criminal cases (magistrates’ courts): consultation on
proposals to (1) increase the maximum amount of costs that can be
awarded by a magistrates’ court in respect of solicitors and counsel;
(2) update the scale of allowances payable to witnesses as part of
an order for costs in a magistrates’ court; and (3) establish a regular
review of the above.
1. 2 Further copies of this report and the consultation paper can be
obtained by contacting:
Miss Louise Mehaffey
Jurisdictional Redesign Division
Department of Justice
Tel: (028) 9041 2910
or (028) 9016 9545
Textphone: (028) 9072 8944
or (028) 9016 3426
1. 3 A copy of this report is available at www.courtsni.gov.uk. Alternative
formats (including large print, audio cassette, Braille, computer disc
and other languages) are also available on request.
1. 4 You may make additional copies of this report without seeking
permission. If you require further printed copies of this report, we
would invite you to access the document through the above web
site and make the copies yourself. If you do not have access to the
Internet and require us to provide you with further copies, please
contact the Magistrates’ Courts Rules Committee Secretariat
(contact details at paragraph 1.2 above).
2. 1 The Costs in Criminal Cases Act (Northern Ireland) 1968 (“the Act”)
provides that a court may:
in cases of conviction, order the person convicted to pay the
whole or any part of the costs of the prosecution;
in cases of acquittal, dismissal or discharge, order the
prosecutor to pay to the accused the whole or any parts of the
costs of the defence, and to pay compensatory sums to defence
witnesses, except in cases where legal aid is payable.
2. 2 These costs are subject to rules, and the Magistrates’ Courts (Costs
in Criminal Cases) Rules (Northern Ireland) 1988 (“the Rules”)
provide at Schedule 1 that the court may order a maximum of £75
each for solicitor’s costs and counsel’s fees (unless the case is
exceptionally lengthy, difficult or complex); and at Schedule 2 a
scale of allowances and expenses for witnesses.
2. 3 Magistrates’ courts rules are made by the Magistrates’ Courts Rules
Committee, after consultation with the Department of Justice and
with the agreement of the Lord Chief Justice.
2. 4 On 17 October 2011, the Rules Committee published a consultation
paper on costs in criminal cases in magistrates’ courts. There were
three main proposals:
to increase the maximum amount of costs that can be awarded
by a magistrates’ court in respect of solicitors and counsel;
to update the scale of allowances payable to witnesses as part
of an order for costs in a magistrates’ court; and
to establish a regular review of the above.
2. 5 Views were sought from those with an interest in criminal cases in
magistrates’ courts in Northern Ireland, and from the general public.
2. 6 The twelve-week consultation period was due to end on 6th January
2012 but was extended to 13th January to make allowance for the
Christmas and New-Year holiday period.
2. 7 A summary of responses was published on 11 May 2012 and is
available at www.courtsni.gov.uk. This paper should be read in
conjunction with the summary of responses.
2. 8 Before making its final decisions, the Committee considered all the
responses and consulted with the Lord Chief Justice and the
Department of Justice (which, in turn, consulted with the Committee
for Justice of the Northern Ireland Assembly).
3. The responses to the consultation
3. 1 22 responses were summarised in the summary of responses
document that was published on 11 May 2012.
3. 2 Some key findings from the responses received are set out below:
There was clear support for an increase in the amount of
There was no consensus, however, about how this should be
achieved. Half of the respondents appeared content with a
straightforward increase of the maximum amount. The other
half favoured a move away from a single maximum amount.
Most of those favouring such a change proposed that the
maximum should not apply where costs were increased as a
result of the unreasonable actions of a party to the
proceedings. Other suggestions were to apply a different
maximum amount to awards against businesses, or to remove
the maximum altogether and allow the court discretion to award
all reasonable costs incurred.
Most respondents agreed that a maximum of £300 would
normally provide for reasonable compensation, but there was
concern that many cases would incur much higher costs.
A small majority of respondents was content with the existing
provision in relation to the award of costs in exceptional cases.
All respondents agreed that the scale of allowances and rates
for witness expenses should be revised in line with those
provided by the Public Prosecution Service.
All respondents agreed that there should be a three-yearly
review of the maximum amount and the scale and rates for
4. Conclusions and next steps
The Schedule 1 maximum
4. 1 Advice received by the Committee is that the intention behind the
Act is to enable a party to proceedings to achieve an order for costs
that is reasonably sufficient to compensate for expenditure that has
been properly incurred. In considering the outcome of the
consultation, therefore, the key consideration for the Committee
was whether or not the responses provided sufficient confidence
that a normative maximum of £300 (or some other figure) would
achieve the object of the Act.
4. 2 Generally, no consensus emerged from the consultation, with only
half of the respondents favouring a straightforward increase of the
maximum, and less than half supporting the specific proposed
increase to a normative £300.
4. 3 The majority of those who answered the specific question about a
normative £300 maximum, however, was content that it would
normally provide reasonable compensation in today’s marketplace.
While this may provide some confidence that the proposed
normative maximum would achieve the object of the Act in the
majority of cases, the converse is that there would be a minority of
cases in which reasonable and properly-incurred costs could not be
4. 4 Even though a “normative” maximum would not be a strict cap, we
would expect that a point somewhere above the maximum would
eventually be reached, above which higher amounts of reasonable
costs would not be awarded. Otherwise, the maximum would not be
serving any purpose. While there is provision for higher awards in
exceptional cases, it is likely that there would always be some
cases where costs are too far in excess of the maximum for the
court to be able to award the full amount, yet are not deemed to be
4. 5 The Committee was conscious, therefore, that setting a maximum
would inevitably mean that there would be a number of cases in
respect of which reasonable costs were significantly greater than
the maximum but which were not exceptional, and for which the
intention of the Act may not therefore be met. Obviously, the higher
the maximum, the fewer cases would fall into this “gap”, but setting
a maximum that is so high that it includes almost all cases would
surely defeat the purpose of having a maximum in the first place.
4. 6 The Committee has decided, therefore, following consultation with
the Lord Chief Justice (in particular about the impact on judicial
time) and the Department of Justice, to amend the Rules so as to
remove the Schedule 1 maximum.
4. 7 This will enable magistrates’ courts to award all reasonable costs
that it sees fit. This will allow public authorities to recover more of
their costs from convicted defendants and should benefit taxpayers
4. 8 Conversely, convicted defendants against whom costs awards are
made would be expected to pay larger sums than they do
presently. This can be justified, however, on at least two grounds.
First, that the court must have regard to the means of the offender
when determining the amount of costs to award, and therefore an
award of costs against a convicted defendant should be affordable
and should not cause financial hardship. Second, a costs order is a
direct consequence only of conviction of a criminal offence:
acquitted defendants are not required to pay prosecution costs. (It
should also be remembered that, in the vast majority of cases,
defendants are not ordered to pay costs.)
4. 9 Removal of the Schedule 1 maximum would mean that there
would no longer be any need for separate provision to deal
with exceptional cases.
The Schedule 2 scale of allowances
4. 10 The consultation clearly endorsed the Committee’s proposal to
revise the scale by replacing it with a new scale based on that used
by the PPS.
4. 11 The one issue raised relates to allowances for professional and
expert witnesses. Schedule 2 currently provides specific
allowances for examinations and reports by professional and expert
witnesses. Under the PPS scale, however, there is no such
provision: it provides only for compensatory allowance for absence
from practice or home or to cover the cost of employing a locum,
and this applies only to professional witnesses.
4. 12 The proposed new Schedule 2 included a general allowance for
expert witness fees, but not for professional witness fees. It is
probably reasonable to expect that this general provision would
allow a court to award costs for examinations and reports by expert
witnesses, but there does not appear to be scope for the award of
such costs in respect of a professional witness.
4. 13 The Committee therefore proposes to address this by adopting the
revised Schedule 2, but with the addition of the following
paragraph after paragraph 7: “A sum that the court considers
to be reasonable may be paid in respect of other fees paid to
4. 14 The consultation clearly endorsed the Committee’s proposal that
there should be a triennial review of Schedule 1 and Schedule 2.
The removal of the Schedule 1 maximum, however, would mean
that only Schedule 2 will need to be reviewed. The Committee will
therefore review Schedule 2 every three years, beginning three
years after the coming into effect of the relevant rules.
4. 15 Section 2(1) of the Act provides that a court may order, subject to
rules, a convicted person to pay to the prosecutor “the whole or any
part of the costs of the prosecution, including any costs incurred in
connection with any matter preliminary or incidental to the trial”.
Case law has determined that this provision is not sufficient to
include investigation costs.
4. 16 The Committee does not, therefore, have the power to make rules
that would provide for the award of investigation costs.
Disparity between fines and costs in Northern Ireland and England and
4. 17 The Northern Ireland Local Government Association recommended
that the Committee should seek to address a claimed disparity
between the level of fines and costs awards in Northern Ireland and
in England and Wales.
4. 18 The Committee’s role is confined to the making of rules to regulate
the practice and procedure of magistrates’ courts: this does not
extend to making rules about the level of fines that may be
awarded, and so the Committee does not have the power to
address any claimed disparity in fines.
4. 19 As regards costs, any disparity between the level of awards in
Northern Ireland and England and Wales must be due primarily to
the absence of any award maximum in the latter jurisdiction. Such a
disparity would be addressed by the removal of the maximum in
Northern Ireland. Any further disparity with regard to the actual
amount of costs incurred would not be a matter within the
Reduction in fines in the event of an increase in the amount of allowable
4. 20 The Loughs Agency was concerned that courts may reduce fines
significantly were awards of costs to increase.
4. 21 Under Article 29(1) of the Criminal Justice (Northern Ireland) Order
1996, a sentencing court must have regard to the means of the
offender when imposing a fine. Case law has determined that the
same principle applies when making an order for costs and that,
where the total sum of a fine and costs exceeds the defendant’s
means, it is preferable to achieve an acceptable total by reducing
the sum of costs rather than by reducing the fine.
4. 22 Fines ought not to reduce, therefore, as a result of any increase in
the amount of allowable costs.
Distinction between costs
4. 23 TV Licensing said that it would seem more appropriate to award
costs for litigation and advocacy rather than (if a distinction is to be
made) for solicitor and counsel.
4. 24 The Committee considers that the removal of the Schedule 1
maximum will reduce the significance of this distinction in the
Legally-aided defendants who may seek costs rather than remuneration
from legal aid
4. 25 The Public Prosecution Service (PPS) was concerned that legally-
aided defendants may seek costs against the prosecution rather
than seeking remuneration from the legal aid fund if they deemed it
to be more financially beneficial.
4. 26 Section 6 of the Act provides that, where a defendant’s costs are
paid by legal aid, no order for costs shall be made. This would
appear to address the PPS’s concern.
Costs against parties in family proceedings
4. 27 Finally, a district judge (magistrates’ courts) proposed that courts
should be permitted to award costs against parties in family
proceedings in magistrates’ courts.
4. 28 Under Article 163(3) of the Magistrates’ Courts (Northern Ireland)
Order 1981, a magistrates’ court may, when making an order for
adjournment, order that one party shall recover from another the
costs of the adjournment. This paragraph covers civil and criminal
proceedings and would appear to provide the power that the district
judge seeks. Article 163(1) also allows more generally for costs to
be awarded against parties in civil proceedings.
4. 29 The Committee now intends to make the necessary rules to bring
the above policy into effect. Before making rules, the Committee is
required to consult with the Department of Justice and obtain the
agreement of the Lord Chief Justice.