AC-2024-LON-003165 - [2025] EWHC 2532 (Admin)

Part II of the Prosecution of Offences Act 1985 makes provision for costs orders in criminal proceedings. Section 16 provides for the payment of defence costs out of central funds (“a defendant’s costs order”). Section 16(5)(a) gives a Divisional Court of the Queen’s Bench (now King’s Bench) Division power to make a defendant’s costs order where the court determines proceedings in a criminal cause or matter. Section 16A, which was inserted by the Legal Aid, Sentencing and Punishment of Offenders Act 2012, places a significant restriction on the scope of a defendant’s costs order by specifying that such an order may not include an amount in respect of legal costs unless certain conditions are met.

Section 17 allows a court to make an order for the payment of prosecution costs out of central funds in any proceedings in respect of an indictable offence and in any proceedings before a Divisional Court of the King’s Bench Division or the Supreme Court in respect of a summary offence. However, no such order may be made in favour of a public authority. Accordingly, an application for an order under that section is only open to a private prosecutor.

Section 18 allows a magistrates’ court, the Crown Court and the Court of Appeal to make an order that the accused pay the prosecutor’s costs. Section 19 makes provision for inter partes orders in relation to costs incurred as a result of an unnecessary or improper act or omission. Sections 18 and 19 do not apply in the High Court.

It follows that the only provisions within Part II of the 1985 Act which may apply in the High Court are those in sections 16 and 17. Those powers may be exercised only when the High Court sits as a Divisional Court of the King’s Bench Division. They may be exercised only in favour of the accused (section 16) or a private prosecutor (section 17). If an order is made, the costs will be paid from central funds rather than by the unsuccessful party. The recoverable defence costs are significantly restricted by section 16A.