Recovering defendant costs: ‘Binning’ the precedent?

We look at the ruling in the case of R V Binning and consider if this indicates an increasing scope for Defendants to recover their costs, or whether it is confined to cases of improper action by the prosecution?

In R v Binning, an interim award of £40,000 was made towards a defendant’s costs on the basis that the prosecution case of gross negligence manslaughter had included “improper conduct”. Although recent legislation has made the position of successful defendants seeking to recover costs increasingly precarious, this case represents one which turns on exceptional facts and does not illustrate a broader trend against this legislative tide.

The current position on costs is that section 16A of the Prosecution of Offences Act 1985, as inserted by the Legal Aid, Sentencing and Punishment of Offenders Act 2012, provides that an acquitted defendant, or a defendant against whom charges have been dismissed in the Crown Court, may not recover his legal fees or expert witness expenses. This is subject to the provision allowing recovery at legal aid rates where an individual defendant did not qualify on financial eligibility grounds.

From 1 October 2012, most privately funded successful defendants have no entitlement to recover their costs under a Defence Costs Order. The only caveat to this is that under section 19(1) of the Prosecution of Offences Act 1985 and regulation 3 of the Costs in Criminal Cases (General Regulations) 1986 wasted costs can be ordered where the conduct of the prosecution is improper or unnecessary.

There are three conditions for an order to be made under section 19:

  1. The applicant must be a party to the proceedings;
  2. There was an unnecessary or improper act or omission;
  3. The costs have been incurred as a result of that act or omission.

In relation to condition two, the case of Director of Public Prosecutions v Denning and another outlines what can be understood to be “improper.” Nolan LJ indicates that, when used with the words “unnecessary” it is intended to “cover an act or omission which would not have occurred if the party concerned had conducted his case properly.” An application under section 19 should only be made where the act or omission relied upon is very clear. It will be necessary for an applicant to demonstrate a causal link between alleged default and costs claimed (R. (on the application of CPS) v Bolton Crown Court).

R v Binning: An example of wasted costs

Dean Henderson Smith tragically died after falling through a fragile perspex skylight in the roof of a large hangar at a farm.

The deceased was employed by the defendant's father as a maintenance man, carrying out repairs to the roof.

The defendant ran his own separate business from the farm but was prosecuted for gross negligence manslaughter. This was in spite of the fact that he had clearly set out in a prepared statement that he was not the deceased's employer.

The defendant won an application to dismiss the charges on the basis that there was insufficient evidence for a proper conviction because he did not owe an employer's duty of care to the deceased. He then succeeded in application for payment of his wasted costs due to the failure on the part of the prosecution to carry out proper enquiries about the employment position before charge.

The Judge considered the prosecutor's code and the need for the prosecutor to be satisfied that there is sufficient evidence to provide a realistic prospect of conviction. It was asserted that sensible enquiries to ascertain facts or matter of law had not met the evidential test. In this case, the Crown Prosecution Service (CPS) failed to carry out enquiries to establish that the defendant owed a duty to the deceased, a prerequisite of the offence of gross negligence manslaughter, and had therefore acted improperly in commencing the prosecution.


This case represents one of the “clearest possible cases” (R v P [2011]) in which a prosecution could be said to have acted improperly. It does not represent a watershed moment, but it does represent a case which turns on particular facts. A salutary statement from the same case makes this point, "the decision to one on which two perfectly responsible lawyers may easily differ. It is only in the clearest possible cases that a decision taken by the appropriate authority in good faith could possibly justify a penalty in costs". Applications under section 19 then, should only be made sparingly mainly for severe lapses in standards.

If you have any questions or would like more information, please contact one of our specialists below.

Author: Simon Tingle

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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