The Act - Commentary on Sections Part 3 – Trial and Punishment of Offences Section 28: Provisions supplementary to sections 26 and 27
95.In the civilian system, criminal prosecutions are brought by the Crown Prosecution Service (CPS). An example of the type of costs that the CPS might seek to recover, in an order analogous to that in sections 26 and 27, is the costs it had incurred for the travel and accommodation of witnesses. In the Services, the budgetary system means that the travel and accommodation costs of witnesses would be met by a budget other than that of the Service prosecuting authority, who is only an individual officer. Strictly speaking, therefore, prosecution costs are not incurred by the Service prosecuting authority but by the Service itself. It is the Service, therefore, which is to be able to recoup the same types of costs which the other party could legitimately claim.
96.Section 28, accordingly, provides that costs incurred by the Services which result from the functions of the prosecuting authority as a party to the proceedings are deemed to have been incurred by the prosecuting authority. Regulations made under section 26 or 27 dealing with costs orders may identify the costs in question. Regulations under those sections may also specify the budgetary authority to be paid. The section also allows for any incidental provisions to be made in the regulations.
97.The regulations are to be made by statutory instrument subject to the negative resolution procedure.