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					Magistrates’ Courts Rules Committee

Costs in criminal cases
 (magistrates’ courts)
        Consultation report




                              August 2012
Contents

1.   Introduction.................................................................................................... 3

2.   Background ................................................................................................... 5

3.   The responses to the consultation............................................................. 7

4.   Conclusions and next steps ........................................................................ 9




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1.     Introduction

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
       Massey House
       Stormont Estate
       BELFAST
       BT4 3SX


       Tel:   (028) 9041 2910
              or (028) 9016 9545
       Textphone: (028) 9072 8944
              or (028) 9016 3426
       Email: louise.mehaffey@dojni.x.gsi.gov.uk



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.




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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).




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2.     Background


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.




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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).




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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
           allowable costs.


          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.




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   All respondents agreed that there should be a three-yearly
    review of the maximum amount and the scale and rates for
    witness expenses.




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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
       recouped.


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




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       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
       exceptional.


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
       and ratepayers.


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




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       should also be remembered that, in the vast majority of cases,
       defendants are not ordered to pay costs.)


Exceptional cases


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




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      paragraph after paragraph 7: “A sum that the court considers
      to be reasonable may be paid in respect of other fees paid to
      professional witnesses.”


Regular review


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.


Other issues


Investigation costs


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.




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Disparity between fines and costs in Northern Ireland and England and
Wales


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
        Committee’s remit.


Reduction in fines in the event of an increase in the amount of allowable
costs


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,




                                      13
      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
      Rules.


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.




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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.


Way forward


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.




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