I don’t blame the Top QC for bringing an unsuccessful private prosecution but should we have to pay for it?

The subject of costs in criminal cases is not, it must be admitted, a sexy one but it is important. The rules are often opaque and often misunderstood even by lawyers. Perhaps for this reason some of the grotesque injustices at the heart of the system are seldom given the attention that they deserve. Bear with me if you will, because even if the topic is not very exciting, it is important.

Martin Porter QC is a campaigner. He was in the news this week after he brought a private prosecution for dangerous driving against a man called Aslan Kayardi. The prosecution failed. Despite this the judge ordered that Mr Porter be awarded his costs from “central funds,” in other words from public money.

Lest anyone think that what follows is intended as in any way a personal attack upon Mr Porter, it is nothing of the sort. He is a highly respected lawyer, and has behaved perfectly properly and honourably. Had I been advising him (not that he would want or need me to do so) I might well have advised him to do everything that he in fact did. My complaint is not with him, but with the system within which he and I both operate.

He was called to the bar in 1986, and developed an impressive civil practice. He became a Queen’s Counsel in 2006.

But he was physically inactive. He noticed that his waistline was expanding. Some friends had died of cancer. This prompted him to take up cycling. He rode in charity events, and soon got hooked. He started a blog about cycling and has had various dealings over the years with the Crown Prosecution Service when they have refused to prosecute drivers who may have put cyclists – including himself – in danger, or otherwise broken the law. You can see one such incident involving a driver who swore at him on the blog, here. The lippy driver chose the wrong man to mess with, and ended up with a fine.

His physical inactivity and bulging waistline are now things of the past. He was recently pictured in Cycling Weekly wearing lycra – sometimes, but not in his case, an unflattering material – and looking not unlike a younger and more combative Roger Scruton. I would publish the picture here but for the danger that Cycling Weekly might prosecute me for breach of copyright.

His private prosecution arose out of an incident in February 2015. Mr Kayardi, a driving instructor, was said to have overtaken Mr Porter on the busy A315 in West London, leaving a gap of only 60 – 80cm – about an arm’s length. Mr Porter’s bike was rigged up with various high tech devices, including a computer and a camera, and Mr Kayardi’s car was said to have been speeding at 50 MPH in a 30 MPH limit. As the car overtook Mr Porter’s heart rate – measured by yet another electronic device – shot up. The readings from all this gadgetry were produced to the Metropolitan Police, but they refused even to refer the case to the Crown Prosecution Service, presumably on the grounds that they assessed that there was no reasonable prospect of a conviction.

To cut a long story short, after reaching a dead end with attempts to persuade the Crown to prosecute, he decided to do so himself, or rather to instruct lawyers to do so on his behalf.

Although “private” prosecutions of this sort remain unusual, they appear to be undergoing something of a revival. There are a number of law firms who specialise in this work, notably the London firm of Edmonds, Marshall McMahon, who market themselves almost exclusively as a “boutique” firm specialising in private prosecutions. In some cases they advise their clients to bring prosecutions in preference to, or in tandem with civil proceedings. According to EMM, amongst the advantages of prosecuting rather than pursuing a civil remedy is that prosecutions are “typically quicker and cheaper than civil litigation,” and

In certain criminal prosecutions it’s possible to apply for legal and investigative costs from central government funds. This may mean that criminal litigation might make commercial sense despite the worth of the defendant.”

Anyway, to return to Mr Porter’s case, he was obviously not prosecuting for financial gain. He was uninjured and it is extremely unlikely that he would have been awarded compensation had Mr Kayardi been convicted. His aim seems to have been the public-spirited one of deterring other motorists from driving dangerously. His case was heard over the course of three days. He gave evidence himself, his video was shown to the jury and he called a road traffic expert to give evidence supporting his case.

For his part, Mr Kayardi denied that he had been driving dangerously and accused Mr Porter of having ridden dangerously.

The jury, it seems, were unimpressed with the prosecution case and took about 20 minutes to acquit Mr Kayardi both of dangerous driving, which requires proof of driving “far below the standard of a careful and competent motorist,” and also of the lesser charge of careless driving, which simply requires proof of driving below that standard.

Had Mr Porter been a claimant in a civil case the almost inevitable result of his complete defeat would have been that the judge would have ordered him to pay the costs of the successful party, as well as bearing his own costs. The financial risk of losing a case provides a powerful incentive to the the parties to agree a settlement.

In a criminal case, however, the rules are very different. Despite having been comprehensively defeated – 20 minutes is just about the shortest time in which it is it is humanly possible for a jury to retire, decide and return to court – Mr Porter, through his counsel Ellis Sareen then applied for his costs from “central funds.”

According to BBC Radio 5 Live the amount asked for was in the region of £25,000, and the Daily Mail reported it as £22,714. Mr Porter himself says that the figure was “quite a bit less.”

By way of comparison the Crown Prosecution Service’s scale of preparation costs for a simple trial suggests costs of £2,800, plus advocates’ fees – £950.00 (plus VAT) for a 3 day dangerous driving trial – and witness expenses. The total would probably come to round about £5,000.

The judge ordered that Mr Porter’s costs be paid out of central funds. In doing so he was applying S.17 of the Prosecution of Offences Act 1985:

17.— Prosecution costs.

(1) Subject to [subsections (2) and (2A)] below, the court may—

(a) in any proceedings in respect of an indictable offence; and

(b) …

order the payment out of central funds of such amount as the court considers reasonably sufficient to compensate the prosecutor for any expenses properly incurred by him in the proceedings.

As you can see, the statute does not require the prosecutor to win all or even part of its case. The judge is empowered to award the prosecution its costs even if it loses. Moreover, according to guidance from the Lord Chief Justice himself:

An order should be made save where there is good reason for not doing so, for example, where proceedings have been instituted or continued without good cause.”

The default position, in other words, is that even when a private prosecutor like Mr Porter loses a case he will normally get his costs, or at least a good proportion of them, paid by the state.

The trial judge does not need to fix the amount of costs, and I understand that he did not do so in Mr Porter’s case. The actual costs that he receives will be assessed by others. He is unlikely to get his full £25,000 back, but nor will his costs be limited to the £5,000 odd that the CPS would have charged for the same case.

How does that compare with the defendant’s position?

In this case Mr Kayardi was legally aided. He will probably have had to pay a monthly contribution towards his legal aid, and such contributions can amount to hundreds of pounds per month. It is even possible for the “contributions” to exceed the amount that his lawyers eventually receive in fees.

Fortunately for him he was acquitted of all charges, so he will be entitled to have his contributions refunded in full. But what if he had been acquitted of dangerous driving and convicted only of the very much less serious charge of careless driving? In that case, even though he had been acquitted of the main charge (the reason for being in the Crown Court rather than the much cheaper Magistrates Court) he would quite possibly still not have got his contributions refunded. In fact it’s just as likely that he would have been ordered to pay something towards the prosecution costs, while still being out of pocket to the tune of hundreds or thousands of pounds of legal aid contributions.

And what if Mr Kayardi had been a rather richer driving instructor, with a disposable income over £35,000? He would then not have been entitled to legal aid at all. Zilch. If he wanted representation he would have had to pay for it out of his own pocket.

But surely, you say, he would still have got his legal costs back if he won the case?

You would be wrong. Even if he then won the case, he would still only be entitled to costs capped at the far from generous legal aid rates. If his costs had been (like Mr Porter’s) £25,000 odd he could not have recovered more than the legal aid rates – again probably around about £5,000.

And if Mr Kayardi had lost the case then, in contrast to an unsuccessful prosecutor, he would have been laughed out of court if he had asked the judge to make an order for costs in his favour.

A costs regime which is far more generous to an unsuccessful prosecutor than to a successful defendant is simply indefensible. It is grotesquely unfair to defendants, and a waste of scarce public money.

What is more, it provides incentives to people to prosecute what are sometimes, at least partly, private disputes in the criminal courts. Indeed, the website of Edmonds Marshall McMahon promotes itself on that very basis. Private disputes should be settled in the civil courts, where the losing party generally speaking has to pay its opponent’s costs, as well as its own.

The state should not be in the business of subsidising private individuals to bring prosecutions, and still less should it be holding out the prospect that even if they lose they might still get their costs repaid. There are strong arguments for abolishing private prosecutions altogether, but if they are to remain then it is high time that a hard, cold look was taken at these perverse and outdated rules.

 

(I am very grateful to Martin Porter QC and Andrew Keogh – both much better lawyers than me – for pointing out the errors in the first version of this post!) 

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Author: Matthew

I have been a barrister for over 25 years, specialising in crime. You may also have come across some of my articles I have written on legal issues for The Times, Standpoint, Daily Telegraph or Criminal Law & Justice Weekly

19 thoughts on “I don’t blame the Top QC for bringing an unsuccessful private prosecution but should we have to pay for it?”

  1. I have read your eloquent explanation of the case. Quite frankly this is a waste of public funds and if he wants people in London (and elsewhere) to drive more carefully, then he is probably evaluating things from the perspective of someone from another galaxy.

  2. Great stuff as ever Matthew on our strange world of ‘through the looking-glass’ criminal justice system.

    But there’s an additional coda. If Mr Kayardi had a disposable household income of less than £35K and was entitled to contributory legal aid, but decided to privately fund anyway (an option increasingly favoured where possible in ‘complex’ cases with a mountain of prosecution unused evidence no longer funded for defence purposes thru legal aid) he would not even get his costs back at legal aid rates.

    The ‘legal aid rates’ costs back provision was a late SI amendment
    when legal aid was means-tested capped to ensure Article 6 compliance of right to representation – and by no means straightforward to apply for.

    But essentially it means that conscientious middle income defendants (be they ever so innocent) may be doubly discriminated against in their fight for justice against the state-funded (that’s you, me and them too) persecution.

  3. What you are proposing is that, as before the last war, only the very wealthy in society should be able to take out “private” prosecutions?

    The man was speeding, and far too close to the cyclist, and there are fat too many cyclists being injured, and killed by bad drivers each year. I am surprised that this man is allowed to be a ‘driving instructor’.

  4. I see that point of view. The countervailing consideration is that private prosecutions which pass the evidential sufficiency and the public interest tests but which are not brought by public authorities are likely to be rather unusual. If the PP is acting in the public interest then whether he/she is out of pocket should be dependent upon whether he/she has acted reasonably rather than whether a conviction has been secured. Notwithstanding some rules a PP does not always know the Defence case until D goes into the box (I didn’t) and many hearing and therefore costs were expended by unsuccessful Defence attempts (quite entitled to make them) to avoid arraignment and also by a hearing to compel cooperation with his solicitors.
    Changing the rules would at least need to be accompanied by an effective ability to review a police decision neither to charge nor to refer to CPS.
    There are numerous safeguards to prevent inappropriate public prosecutions going to Court. A potential costs penalty would deter the appropriate ones.
    The costs recovered will of course be limited to reasonable ones and the CPS could if they wished have taken over to continue the case. (They were asked to intervene by the Defendant but only in the context of then dropping it).
    The rules when I started the prosecution were clear. I would hate to think they might be changed because of me to remove a rarely used but important constitutional safeguard.
    The rules for Defendants do seem unfair but that is a different issue.

  5. I meant:
    “There are numerous safeguards to prevent inappropriate private prosecutions going to Court.”

    1. At the Bailey they used to talk about a “cigarette acquittal” – which meant that counsel had just got into the main hall, where you could smoke (a long time ago!), and finished a cigarette, when they were all called back.

      In those days you could smoke in the jury rooms too. So somebody there had lit up, they had agreed on Not Guilty in less time than it took to finish the cigarette, but s/he wasn’t going until it was smoked down to the stub!

  6. I tend to agree with Mr Porter. The private prosecution is acting in the public interest where the public sector can’t or won’t. Just because a defendant was found not guilty doesn’t mean it was inappropriate to prosecute.

    In these cases it’s reasonable that the private prosecutor isn’t out of pocket. If it is an abuse of process then the AG should step in and stop the prosecution and costs obviously wouldn’t be available.

    The real problem is that prosecutions for poor driving are so rare and even more rarely are successful, leading to the requirement for private prosecutions such as these. Until there is a reasonably high likelihood that you’ll get prosecuted for near misses with a pedestrian or cyclist driving behaviours are unlikely to improve.

    Finally, clearly there should be more reasonable reimbursement for defendants that are cleared, but that isn’t solved by also putting private prosecutors out of pocket too.

  7. Matthew, as ever, a great piece from you.

    I think that the man on the Clapham omnibus may take the view that this is more about a campaign, rather than about any real injury or loss. Accordingly, the public purse should not be depleted over such a matter.

    Regards

    Mark

  8. Matthew. I fear you have been specialising in criminal law for too long!

    “the danger that Cycling Weekly might prosecute me for breach of copyright”

    What of course you meant to say was “… might sue me for …”

    I really don’t think republishing a photograph on your blog would have reached the criminal standard.

  9. What would have happened had Mr Porter QC been successful? Well… Had Mr Porter QC been successful in his prosecution then his cost application would have been made for the Defendant Mr Kayardi ( in receipt of legal aid) to pay the full amount, in excess of £22,000. The Prosecution’s cost order sends out the wrong message. Win or lose we still win! Private criminal prosecution are rare for a reason, it is incredibly difficult for an individual to be impartial when representing themselves. This includes preparing their own criminal case especially so, when they have limited experience in the criminal courts. Imperfect written indictments, lack of expert evidence when commencing proceedings and complying with disclosure rules just a few errors within the case. This is why criminal cases should be prosecuted by the crown prosecution service who have the expertise in this area. There were certainly no deliberate attempts to avoid arraignment but request made by the Defence to the Crown Prosecution Service to take over this prosecution. There were delays in getting a response. A further hearing involved a dismissal application which was made on behalf of the Defendant to avoid a Trial, but this application was unsuccessful. Any delays in arraignment were to avoid an unnecessary and costly trial. The non co operation hearing was a hearing between the Defence and Court and the Prosecutor was not party to that hearing and therefore were not required to attend. I am somewhat surprised at the Prosecutor’s application for cost are concerned. There appeared to be no logically reason to have a senior barrister ( originally appointed was a QC) representing someone on a simple dangerous driving case where there was no injury or indeed a noting junior throughout the three day trial proceedings. The Defendant had neither – unfortunately our legal aid rates don’t cover this. Does anyone have any idea what our defence bill might be? I will guess no more than £2,000. Offers invited! I must say Jeremy Clarkson wrote an interesting article today 12th March 2016 in a well known tabloid paper about this case. Solicitor on behalf of Mr Kayardi.

  10. So what do WE do about the Real Perpetrators who make False S-x Abuse Allegations.

    People who have hidden motives / Hidden Agenda’s, Who going around Blaming & Framing Innocent Human Beings of such Heneous Crimes. that NEVER Ever Really happened..

    People who need to hide their children’s sordid sins from Friends & soceity.. in the intention of Framing & Blaming other Innocent Beings for their own Children’s Sinful Actions.

    People need to take responsibility 4 Their Childrens’ Actions, instead of Blaming & Framing Innocent People 4 the way Their own Children are..

    The Abuse Excuse has to STOP!! Before MANY more Innocent Women get accused of Crimes THEY would NOT, did NOT ever commit.

  11. We should do away with all private prosecutions. Leave it to the CPS and local councils where appropriate.

    And NOT the RSPCA which prosecutes every case as if were a civil action in the High Court between two Russian squillionaires and then asks defendants who are living from one benefit payment to the next for costs to match. The last time we had one in my court and the wingers outvoted me and ordered costs as asked I dutifully asked the Defendant “When can that be paid?” and got the answer “When I win the lottery”.

    I know m’learned friends are animals too but I don’t think they are quite the ones the donors who keep the RSPCA afloat have in mind when they part with their money!

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