The High Court has rejected a constitutional challenge by Anthony Kelly to a law governing appeals against costs orders after an acquittal. President of the High Court Kearns ruled on 27 March 2015 that the case failed on a threshold issue: the challenged law did not affect Kelly’s own circumstances in the way his argument required.
Kelly was charged with murder in October 2006 and acquitted by a jury at the Central Criminal Court in November 2007. He had funded his defence himself and sought to recover those costs. In December 2007, the trial judge refused his application. Kelly then sought leave to appeal, but the judgment records that no appeal was available to him through either the Supreme Court or the Court of Criminal Appeal.
His challenge concerned section 24 of the Criminal Justice Act 2006. That provision allows the Attorney General or Director of Public Prosecutions to appeal an order requiring them to pay costs to an acquitted person. Kelly argued that the provision denied him equal access to appellate courts and breached constitutional rights. He also sought a declaration that it was incompatible with the European Convention on Human Rights, but that claim was not argued or pursued at the hearing.
The State argued that section 24 did not apply to Kelly’s situation because his costs application had been refused; no order requiring the prosecution to pay him had been made. It also submitted that striking down the section would not change his position, and that he could not rely on a hypothetical case in which the prosecution had been refused costs.
Kearns held that Kelly’s case, as pleaded, was a challenge based on unequal access under Article 40 of the Constitution. It could not be widened during the hearing into a broader challenge to the absence of an appeal right. The court said neither side could appeal an order refusing costs in the circumstances before it. It therefore decided the case for the defendants on the threshold issue and did not consider other constitutional questions, including whether the distinction between the prosecution and defence could be justified by their different social functions.
The judgment does not determine whether section 24 would withstand those wider arguments in a case where they properly arose.