A very sensible ruling by Edis J that the Crown Court has no jurisdiction to make any order for costs in relation to an application for a production order under the Terrorism Act 2000.

The case arose from the screening of a documentary by Channel 4 which showed a UK national, one Matthews, fighting in Iraq and Syria against Islamic State. Matthews was arrested and charged when he returned to the UK and the police sought a production order for the disclosure of all of the footage taken for the filming of the documentary. Channel 4 indicated that it would contest the application.

Prior to the hearing of the application, the CPS decided that there wasn’t a real prospect of conviction. It therefore discontinued the prosecution and abandoned the as yet unheard application for a production order.

Channel 4 sought its costs of defending the application, which it put at £57,653.22.

Edis J dismissed Channel 4’s claim for costs. He held that the Terrorism Act itself makes no provision for any award of costs on the making or refusal of an application for an order under the Act. There was therefore no jurisdiction to award costs. He also held that the Crown Court doesn’t have an inherent jurisdiction, so any supposed gap in the Court’s powers to award costs couldn’t have been plugged using that.

Channel 4’s main point in its argument for costs was that it would be a breach of its rights under Article 10 if the state could make applications against it without it being able to recover its costs of responding to those applications even if it succeeded. Again Edis J rejected that argument. He held that the Terrorism Act’s failure to make any provision for an award of costs was deliberate because the Act intended to institute a “no costs” regime in relation to applications. He pointed out that it was in journalists’ interests for the regime to be one which did not involve costs, since they could resist applications knowing that they would not be made liable for the police’s costs even if the journalists’ arguments did not prevail. He also pointed out that even in cases decided by the ECHR at Strasbourg, the practice was to award only a very modest sum towards the winner’s costs and so the Strasbourg Court clearly didn’t consider it a breach of the Convention not to allow a winner to recover costs in full.

As to Channel 4’s argument that the Court did have jurisdiction to award costs on an application for a non-terrorism production order under schedule 1 of PACE, and so the Court should assume that Parliament intended that the Court should have the same power under the Terrorism Act, he held that (1) PACE was different legislation and (2) in any event, the provisions of the two Acts were different; for example, a production order can be made under PACE only if there are reasonable grounds to suspect that an offence has been committed whereas there is no such requirement for the making of an order under the Terrorism Act. Thus the two regimes are not directly comparable.