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Costs in Criminal Cases Regulations 1986

This source of funding is much misunderstood, even by solicitors, and there is not much information about on the subject, so its worth spending a little time on the topic.

In brief, Part V of these regulations provides that in a criminal cause or matter, the costs of calling an expert can be paid from central funds as a witness allowance, i.e. central funds can pay whether or not the case is won or lost; the defence can call an expert and under some circumstances so can the prosecution; therefore, it may be that expert fees can be claimed in actions for failure to comply with noise abatement notices and in actions under Section 82 of The Environmental Protection Action, although we recommend that you obtain written conformation from the court in advance.

If you intend to proceed down this route you should read the Regulations, the primary legislation, The Prosecution of Offences Act 1985 [The Act], and Guide to Allowances under part V of the Costs in Criminal Cases (General) Regulations 1986" issued by Legal Aid Division of the Lord Chancellor's Department in March 1996

The Basis of Allowances

In detail Regulation 20 of The Costs in Criminal Cases (General) Regulations 1986 - Allowances for Witnesses, states that

"The Court may make an allowance in respect of an expert witness for attending to give expert evidence and for work in connection with its preparation of such an amount as it may consider reasonable having regard to the nature and difficulty of the case and the work necessarily involved."

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In "Guide to Allowances under part V of the Costs in Criminal Cases (General) Regulations 1986" issued by Legal Aid Division in March 1996 there are no mandatory charge out rates for experts; there are some indicative rates.

Note that the witness has to be called to give evidence, but does not actually need to give evidence.

Possible Confusions

It should be noted that an application under Part V of The Regulations "Allowances to Witnesses" is a separate from Part III "Costs out of Central Funds". Although solicitors often think that Part III covers Regulation 20, which is unfortunate because claims under Part III are time limited, depend on the outcome of the case and relate solely to "offences" (see below). However Section 4 of Part III contains the strongest indication that witness allowances are not covered by Part III, by listing the disbursements which solicitors can claim in addition to their own costs

"disbursements" do not include any payment made out of central funds to a witness, interpreter or medical practitioner in accordance with Part V of these Regulations;

Does the Court Need to Consider the Payment?

"Guide to Allowances under part V of the Costs in Criminal Cases (General) Regulations 1986" issued by the Lord Chancellor?s Department Legal Aid Division in March 1996, at its 1.5 interprets Regulation 16 as meaning

"Expenses properly incurred by a witness.. .. shall be allowed out of central funds unless the court directs that the expenses are not to be allowed out of central funds. Therefore there is no requirement for the court to make an order for the payment of those expenses."

Therefore, we consider that the Court does not need to consider the application.

Use of the Regs with Section 82

The Regulations are made under The Prosecution of Offences Act 1985 [The Act]. Sometimes Court offices consider that any matter which is not an offence, cannot be the subject of a costs order under , i.e. the Court has no powers to make an order. Firstly the Court is not being asked to make an order - it is a witness allowance, secondly allowances to witnesses under Part V of The Costs in Criminal Cases Regulations, do not relate to "offences" but a "criminal cause or matter".

Part III of the Regs. "Costs out of Central Funds" relates to "an order made under of or by virtue of Part II of the Act..". It is true that Part II of the Act is reliant of the existence of an offence for a Magistrates' Court to make a costs order; the term "offence" is used at Sn.16(1)(a), 16(1)(b), 16(1)(c). Presumably, costs orders made under Part III of the Regs would be governed by the same wording, i.e. an offence must have been alleged.

By contrast Part V of the Regs "Allowances to Witnesses" uses the wording "Where, in any proceedings in a criminal cause or matter in a magistrates' court.. the expenses properly incurred by that witness...shall be allowed out of central funds in accordance with this part of the Regulations [Part V] unless the court directs that the expenses are not to be allowed out of central funds".

Therefore it can be seen that for a payment under Part V of the Regs, the matter does not need to relate to an offence; nor does the Court need to make an order.

It is understood that "Botross -v- Hammersmith and Fulham LBC" , found that actions under Sn.82(2) of The Environmental Protection Act 1990 are criminal in nature; consequently allowances to witnesses should be paid.