Serious Fraud Office v Evans & Others (Costs)

[2015] EWHC 263 (QB)

12th February 2015

Crown Court


This matter was referred back to Hickinbottom J. by Fulford L.J.on the question of costs. Since the 2012 insertion of  s. 16A(1) of the 1985 Prosecution of Offences Act, even a successful defendant’s rights to his costs in a criminal case has been virtually removed. In a further important judgment, the Judge awarded wasted costs against the SFO pursuant to s.19 of the 1985 Act in respect of the original case of conspiracy to defraud. Section 19 (and regulations made under that section) provides that a court may make an order that one party pay the costs of another party to criminal proceedings, where it is satisfied that the receiving party has incurred costs as a result of an “unnecessary or improper act or omission by or on behalf of” the paying party. [2015] EWHC 263 (QB) and [2015] EWHC 1525 (QB).

  • “It is incumbent upon any prosecutor to mount a charge upon a clear basis, to which the defendant can respond.  That obligation lies particularly heavily upon the SFO because (i) it is concerned with serious and complex crimes, and (ii) it is concerned with both the investigation and prosecution of crimes.  In respect of such crimes, the SFO is bound to conduct its analysis of the case, both evidential and legal, with some real precision and care.  As Fulford LJ said (at [95] of the VB Judgment), that analysis is required before the case is sent for trial: it is important that the legal basis is crystallised and subject to proper scrutiny before the matter is sent for trial.  As the case develops thereafter, the analysis of course has to be kept under review.” 


In respect of the failed attempt to bring a voluntary bill of indictment the Judge also ordered the SFO to pay the Defendant’s costs on an indemnity basis under CPR Rule 44.2(2)(a):

  • “It was clear from the application that the case as put forward in the first iteration had no realistic prospect of success, as the SFO belatedly accepted.  The other iterations were attempts to save a fatally-holed ship, that presented as a sequence of different cases that stood no real prospect of success or were in essence too late.  Having accepted that the case as it had been sent to the Crown Court was unarguable, the SFO continued to fail to analyse the legal case against the Applicants with appropriate rigour, casting round for some means of saving the case and grasping at a succession of straws in the form of cases with, if anything, decreasing rather than increasing legal coherence and merit.  In my judgment, this is a quite exceptional case.   This was not simply an error of judgment: once the dismissal application had been formally notified and its essential basis set out, no reasonable prosecutor in the shoes of the SFO would have contested that application in the manner that the SFO in fact did.”  

Hickinbottom J.


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