“The Staircase” – Not Guilty verdict entered and defence costs order awarded against the CPS for unreasonable behaviour

The case revolved around the events that took place at our client’s home, at the top of his staircase, on the 29^th January 2023, when it was alleged that our client (D) had assaulted an emergency worker (a police constable) acting in the exercise of his duty.

Following a successful S8 CPIA 1996 application and a protracted disclosure process, in relation to the disciplinary record and suspension of the Police Constable in question, the Prosecution would eventually offer no evidence against D on the basis that there was no longer a reasonable prospect of a conviction and a not guilty verdict was thereafter entered by the Court against D.

D had privately funded his case and had incurred significant costs in defending himself. An application was made against the Crown Prosecution Service (CPS) for a defence costs under S19 of the Prosecution of Offences Act 1985, on the basis that there had been an improper, unreasonable, or negligent act or omission by the Prosecution.

It is a well-established principle that the granting of a S19 application is a very rare occurrence and is restricted to those exceptional cases where the prosecution has made a clear and stark error, as a result of which a defendant has incurred costs for which it is appropriate to compensate him.

Having heard arguments from Counsel last week, the Court were persuaded that this case fell into such a bracket and that the Prosecutions behaviour had been unreasonable, and as such, awarded a costs Order against the CPS for a large proportion of the defence costs.

The arrest

On a quiet Sunday afternoon in January, D, and his partner opened their front door to Police. It would transpire Police had attended to arrest their adult son, who at the time was sleeping in his room. The couple, knowing that their son suffered with some mental health difficulties, suggested that Police remain at the front door, and that they be permitted to wake their son and bring him downstairs in order that Police could then safely convey him to the Police Station for questioning.

As the couple went upstairs to wake their son, the two officers in attendance, uninvited, followed closely behind the couple up the stairs before entering the son’s room to arrest him. D had by then, decided to film events on his mobile phone.

D would observe and film Police entering his son’s bedroom room before walking downstairs to obtain his sons shoes, leaving Police in the bedroom. A short time later D heard his partners panicked screams coming from the top and the stairs and D immediately sprinted up the stairs to find his powerfully built son and the two officers embroiled in a dangerous physical struggle at the very top and edge of the staircase.

Fearing that the officers and his son could all come crashing down the staircase at any moment and were in danger of serious injury, D instinctively pushed the officer backwards away from the edge of the staircase to a place of safety. D then immediately retreated as soon as the danger had passed and calmly continued to film events.

D’s son was then later taken down the stairs by Police however upon reaching the front door at ground level, the son would again resist, resulting in the officers and the son falling to the floor in a struggle, precisely as D had foreseen could occur at the top of the stairs. D continued filming calmly whilst sat on the staircase.

D would then face being arrested himself within his own home for assaulting the officer at the top of the stairs. Despite D appearing calm and compliant on the video, as he rose to his feet halfway on the staircase to come down, one officer deemed it necessary to suddenly pepper spray D in the eyes. Disorientated, D would attempt to hold onto the staircase banister before the second officer began tugging and prising his fingers resulting in a fracture to one of his fingers. D would later be interviewed, when he put forward his defence.  Adding insult to injury, D would later be charged in the summer of 2023 and prosecuted for assaulting an emergency worker.

Court Proceedings

D’s defence throughout was that his actions were lawful in all the circumstances and any force used was necessary and proportionate to prevent an accident and injury occurring to both the officers and his son. Although it was initially suggested by the Prosecution that the officer was struck to the face, following an application to dismiss made by the defence it was later conceded by the Prosecution that D’s actions amounted to a push. Despite this the prosecution would press on with the Prosecution regardless.

During the course of proceedings, there was continued resistance from the CPS in providing full disclosure in response to reasonable requests from the defence, including in relation to disciplinary records of the officers involved in the incident.

In December 2023 the CPS would provide the defence with a two-page summary relating to the officer’s disciplinary record, including that he had faced a written warning and was later suspended from duty for unrelated matters. The defence sought further information pertaining to these issues within the defence statement, which was resisted by the prosecution, who claimed the summary was sufficient to assist the defence with the preparation of the case and that the documents sought did not amount to reasonable or necessary requests.

A S8 CPIA application was then made for disclosure by the defence which was again resisted by the prosecution on a similar basis. The Judge would however order that all material sought should be disclosed.

Disclosure of the material underlying the officers warning and suspension would eventually be provided to the defence some seven months after the Judge had made it clear that the material was disclosable. Shortly thereafter the Prosecution would offer no evidence against D.

An application for costs against the CPS pursuant to S19 of the Prosecution of Offences Act 1985 was made.

The Law –  S19 of the Prosecution of Offences Act 1985.

Under section 19 of the 1985 Act, a court may order the payment of any costs incurred as a result of any unnecessary or improper act or omission by or on behalf of any party to the proceedings: Practice Direction (Costs in Criminal Proceedings) 2015, §4.1.

A three-stage approach is generally adopted in making such an assessment:

• Has there been an improper, unreasonable, or negligent act or omission?
• As a result, have any costs been incurred by a party?
• If the answers to both of the above questions are ‘yes’, should the court exercise its discretion to disallow or order the representative to meet the whole or any part of the relevant costs, and if so what specific sum is involved?

In the context of this test, the word improper ‘does not necessarily connote some grave impropriety. Used, as it is, in conjunction with the word ‘unnecessary’, it is… intended to cover an act or omission which would not have occurred if the party concerned had conducted his case properly’: DPP v Denning [1991] 2 QB 532, 541, per Nolan LJ.

A review of the authorities surrounding the application of S19 was conducted by Coulson J (as he then was) in R v Cornish (Erol) [2016] EWHC 779 [§16], and the following principles were set out:

• Simply because a prosecution fails, even if the Defendant is found to have no case to answer, does not of itself overcome the threshold criteria of section 19.
• Improper conduct means an act or omission that would not have occurred if the party concerned had conducted his case properly.
• The test is one of impropriety, not merely unreasonableness. The conduct of the Prosecution must be starkly improper such that no great investigation into the facts or decision-making process is necessary to establish it.
• Where the case fails as a matter of law, the prosecutor may be more open to a claim that the decision to charge was improper, but even then, that does not necessarily follow because no one has a monopoly of legal wisdom, and many legal points are properly arguable.
• It is important that s19 applications are not used to attack decisions to prosecute by way of a collateral challenge, and the courts must be ever vigilant to avoid any temptation to impose too high a burden or standard on a public prosecuting authority in respect of prosecution decisions.
• In consequence of the foregoing principles, the granting of a s19 application will be very rare and will be restricted to those exceptional cases where the prosecution has made a clear and stark error as a result of which a defendant has incurred costs for which it is appropriate to compensate him.

It was submitted on behalf of D that if the CPS had conducted its case properly, a much earlier consideration of whether there was a reasonable prospect of conviction would have been undertaken.

If the CPS had conducted its case properly, full disclosure of the facts surrounding the officers warning and suspension should have been provided as early as December 2023.

Instead, D incurred considerable costs, including making a S8 application after the CPS continued to resist further disclosure, on the basis that a two-page summary was ‘sufficient’ for the preparation of the defence case.

It was therefore submitted on behalf of D that:

1. there had been unnecessary, improper or unreasonable acts and omissions by the CPS
2. that costs were incurred by the D as a result, and

• the court should exercise its discretion and order the CPS to pay D’s costs in full.

Following a hard-fought hearing, the Judge ruled that from the 23 November 2023 onwards, the CPS were aware that the officer had been suspended from duty and were under a duty to provide full disclosure relating to this to the defence.

The Judge found that the CPS had failed to properly assess the significance of material relating to the officer when it came into their possession in November 2023, and instead made concerted efforts to resist further disclosure.

As a result, the Judge in exercising his discretion, made a costs order against the CPS in respect of all defence costs incurred from the 23 November 2023.

Special thanks to instructed Counsel Max Mills of 2 Hare Court for his dedication and tenacity in helping to achieve this positive outcome for our client.