The Criminal Procedure Rules 2020

Costs out of central funds E+W

45.4.—(1) This rule applies where the court can order the payment of costs out of central funds.

(2) In this rule, costs—

(a) include—

(i) on an appeal, costs incurred in the court that made the decision under appeal, and

(ii) at a retrial, costs incurred at the initial trial and on any appeal; but

(b) do not include costs met by legal aid.

(3) The court may make an order—

(a) on application by the person who incurred the costs; or

(b) on its own initiative.

[F1 (4) Where a person wants the court to make an order that person must apply as soon as practicable and—

(a) on an application for a defendant’s costs order—

(i) outline the type of costs and the amount claimed, if that person the applicant wants the court to direct an assessment; or

(ii) specify the amount claimed, giving details, if that person the applicant wants the court to assess the amount itself; or

(b) on an application for a prosecutor’s costs order—

(i) apply in writing and serve it on the court officer (or, in the Court of Appeal, the Registrar), and

(ii) in the application specify the amount claimed to the date of the application and provide the information listed in paragraph (5).

(5) The information required by paragraph (4)(b) is—

(a) a summary of the items of work to date done by a solicitor;

(b) a statement of the dates on which items of work were done, the time taken and the sums claimed;

(c) details of any disbursements claimed, the circumstances in which they were incurred and the amounts claimed in respect of them, and

(d) such further particulars, information and documents as the court may require.

(6) The general rule is that the court must make an order, but—

(a) the court may decline to make a defendant’s costs order if, for example—

(i) the defendant is convicted of at least one offence, or

(ii) the defendant’s conduct led the prosecutor reasonably to think the prosecution case stronger than it was;

(b) the court may decline to make a prosecutor’s costs order if, for example, the prosecution was started or continued unreasonably; and

(c) the court may decline to make an order if the applicant fails to provide enough information for the court to decide whether to make an order at all and, if so, whether it should be for the full amount recoverable or for a lesser sum.

(7) If the court makes an order—

(a) the general rule is that it must be for such amount as the court considers reasonably sufficient to compensate the applicant for any expenses properly incurred in the proceedings;

(b) where the court considers there to be circumstances making it inappropriate for the applicant to recover that amount then the order must be for such lesser amount as the court considers just and reasonable;

(c) the court may fix the amount to be paid in a case in which either—

(i) the recipient agrees the amount, or

(ii) the court decides to allow a lesser sum than the full amount otherwise recoverable; and

(d) if the court does not fix the amount itself it must direct an assessment under, as applicable—

(i) Part III of the Costs in Criminal Cases (General) Regulations 1986, or

(ii) Part 3 of the Serious Crime Act 2007 (Appeals under Section 24) Order 2008.

(8) If the court makes a defendant’s costs order—

(a) the order may not require the payment of any amount in respect of fees payable to a legal representative, or disbursements paid by a legal representative (including expert witness costs), but if the defendant is an individual then an order may require payment of such an amount in a case—

(i) in a magistrates’ court, including in an extradition case,

(ii) in the Crown Court, on appeal from a magistrates’ court,

(iii) in the Crown Court, where the defendant has been sent for trial, the High Court gives permission to serve a draft indictment or the Court of Appeal orders a retrial and the defendant has been found financially ineligible for legal aid, or

(iv) in the Court of Appeal, on an appeal against a verdict of not guilty by reason of insanity, or against a finding under the Criminal Procedure (Insanity) Act 1964, or on an appeal under section 16A of the Criminal Appeal Act 1968 (appeal against order made in cases of insanity or unfitness to plead);

(b) any such amount may not exceed an amount specified by regulations made by the Lord Chancellor; and

(c) an order which includes an amount in respect of fees payable to a legal representative, or disbursements paid by a legal representative, must include a statement to that effect.

(9) If the court fixes the amount to be paid itself, it must do so subject to any restriction on the amount that is imposed by regulations made by the Lord Chancellor.

(10) If the court directs an assessment, the order must specify any restriction on the amount to be paid that the court considers appropriate.]

[Note. See also rule 45.2.

An order for the payment of costs out of central funds can be made—

(a) for a defendant—

(i) on acquittal,

(ii) where a prosecution does not proceed,

(iii) where the Crown Court allows any part of a defendant’s appeal from a magistrates’ court,

(iv) where the Court of Appeal allows any part of a defendant’s appeal from the Crown Court,

(v) where the Court of Appeal decides a prosecutor’s appeal under Part 37 (Appeal to the Court of Appeal against ruling at preparatory hearing) or Part 38 (Appeal to the Court of Appeal against ruling adverse to prosecution),

(vi) where the Court of Appeal decides a reference by the Attorney General under Part 41 (Reference to the Court of Appeal of point of law or unduly lenient sentence),

(vii) where the Court of Appeal decides an appeal by someone other than the defendant about a serious crime prevention order, or

(viii) where the defendant is discharged under Part 1 or 2 of the Extradition Act 2003;

(See section 16 of the Prosecution of Offences Act 1985 and regulation 14 of the Costs in Criminal Cases (General) Regulations 1986(1); section 36(5) of the Criminal Justice Act 1972 and paragraph 11 of Schedule 3 to the Criminal Justice Act 1988; article 14 of the Serious Crime Act 2007 (Appeals under Section 24) Order 2008; and sections 61 and 134 of the Extradition Act 2003.)

(b) for a private prosecutor, in proceedings in respect of an offence that must or may be tried in the Crown Court;

(See section 17 of the Prosecution of Offences Act 1985 and regulation 14 of the Costs in Criminal Cases (General) Regulations 1986.)

(c) for a person adversely affected by a serious crime prevention order, where the Court of Appeal—

(i) allows an appeal by that person about that order, or

(ii) decides an appeal about that order by someone else.

(See article 14 of the Serious Crime Act 2007 (Appeals under Section 24) Order 2008.)

Where the court makes an order for the payment of a defendant’s costs out of central funds—

(a) the general rule is that the order may not require the payment of any amount in respect of fees payable to a legal representative, or disbursements paid by a legal representative (including expert witness costs), but if the defendant is an individual then an order may require payment of such an amount in a case—

(i) in a magistrates’ court, including in an extradition case,

(ii) in the Crown Court, on appeal from a magistrates’ court,

(iii) in the Crown Court, where the defendant has been sent for trial, the High Court gives permission to serve a draft indictment or the Court of Appeal orders a retrial and the defendant has been found financially ineligible for legal aid, or

(iv) in the Court of Appeal, on an appeal against a verdict of not guilty by reason of insanity, or against a finding under the Criminal Procedure (Insanity) Act 1964(2), or on an appeal under section 16A of the Criminal Appeal Act 1968(3) (appeal against order made in cases of insanity or unfitness to plead); and

(b) any such amount may not exceed an amount specified by regulations made by the Lord Chancellor.

[F2 Where the court makes an order for the payment of a defendant’s costs out of central funds, see also section 16A of the Prosecution of Offences Act 1985, sections 62A, 62B, 135A and 135B of the Extradition Act 2003 and regulations 4A and 7 of the Costs in Criminal Cases (General) Regulations 1986.]]

Textual Amendments

F1 Rule 45.4(4)-(10) substituted for rule 45.4(4)-(8) (3.10.2022) by The Criminal Procedure (Amendment No. 2) Rules 2022 (S.I. 2022/815), rules 2, 23(a)

F2 Words in rule 45.4 substituted (3.10.2022) by The Criminal Procedure (Amendment No. 2) Rules 2022 (S.I. 2022/815), rules 2, 23(b)

Commencement Information

I1 Rule 45.4 in force at 5.10.2020, see Preamble

(1)

S.I. 1986/1335; regulation 14 was amended by regulations 2 and 11 of S.I. 2008/2448.

(2)

1964 c. 84.

(3)

1968 c. 19; section 16A was inserted by section 25 of the Domestic Violence, Crime and Victims Act 2004 (c. 28).