The Supreme Court awarded Cecily Cunningham the costs of her High Court judicial review proceedings and her appeal after the Director of Public Prosecutions discontinued the criminal case against her while the appeal was pending.
In a judgment delivered on 21 June 2012, Mr Justice Clarke said the appeal over whether the prosecution should be prohibited had become moot. The Supreme Court did not decide that issue or assess whether the appeal would have succeeded. It considered only who should bear the costs now that the merits would not be determined.
Cunningham had been charged in July 2003 with seven offences under the Offences Against the Person Act 1861. The charges alleged that she was responsible for contaminating blood products in 1977 and 1991. After she was returned for trial in September 2003, she brought judicial review proceedings seeking to prevent the prosecution on grounds of delay.
The High Court found prosecutorial delay but concluded that the balance of justice favoured allowing the prosecution to proceed. It made no order as to costs. Cunningham appealed, and the DPP did not cross-appeal the finding of delay.
While the appeal was pending, the DPP told Cunningham in December 2008 that it intended to enter a nolle prosequi, formally ending the prosecution. The nolle prosequi was entered on 12 January 2009. The DPP said the prosecution had been properly brought and kept under review, but that changes in its evidential basis meant it could no longer be sustained.
The DPP’s evidence referred to investigations following the death of Professor J.J. Hoppe, an intended prosecution expert witness, and inquiries into whether other witnesses could replicate his anticipated evidence. The Supreme Court also considered material suggesting that a draft statement by Dr Terence Snape, who had been contacted about expert evidence, might have favoured the defence on what Cunningham could have known about risks associated with blood products.
Justice Clarke said the DPP had provided too little information for the court to assess whether external changes in circumstances had caused the prosecution to end. He therefore treated the proceedings as having become moot through the DPP’s unilateral decision. He stressed that this did not amount to a finding of blame.
Applying the general approach to costs in moot proceedings, the Supreme Court allowed the appeal on costs and varied the High Court order. It directed that Cunningham receive the costs of both the High Court proceedings and the appeal, to be taxed if the parties could not agree. The court made no ruling on the merits of the original challenge to the prosecution.