The High Court has ruled that the District Court cannot award costs in applications to retain forensic samples under section 4(5) of the Criminal Justice (Forensic Evidence) Act 1990. It answered “No” when asked whether the District Court had jurisdiction to award costs against the Director of Public Prosecutions (DPP). The second question, about the criteria for awarding costs, did not arise.
The ruling came in a case stated by District Court Judge Patricia McNamara. She asked the High Court to determine the legal questions after the DPP applied to retain a sample taken from Seán Douglas, who had been arrested on suspicion of murder on 13 November 2012 and detained under section 50 of the Criminal Justice Act 2007.
A buccal swab was taken after a superintendent authorised it. Douglas was released without charge and, according to the judgment, had not since been charged with a relevant offence. The DPP applied on 7 November 2012 for an order retaining the sample for three years. Both sides were represented, and the DPP’s evidence was cross-examined. Judge McNamara granted the retention application. Douglas’s solicitor then sought costs, prompting the case stated.
Justice Baker said the District Court’s power to award costs could come from the District Court Rules, even where the legislation governing the underlying application did not expressly provide for costs. The relevant rules, however, allowed costs at the court’s discretion only in “civil proceedings.”
The rules placed section 4(5) sample-retention applications in their part dealing with criminal proceedings. Justice Baker concluded that, for the purpose of the costs rules, the Rules Committee had classified those applications as criminal proceedings and thereby excluded them from the District Court’s costs jurisdiction. She noted that the application could not itself result in a conviction, fine or imprisonment, but said that did not alter the classification made by the rules for costs purposes.
The High Court’s decision addressed the District Court’s jurisdiction to award costs in this type of application. It did not reconsider the order retaining Douglas’s sample, which had already been made by the District Court.