Prosecution costs

Guideline users should be aware that the Equal Treatment Bench Book covers important aspects of fair treatment and disparity of outcomes for different groups in the criminal justice system. It provides guidance which sentencers are encouraged to take into account wherever applicable, to ensure that there is fairness for all involved in court proceedings.

Where an offender is convicted of an offence, the court has discretion to make such order as to costs as it considers just and reasonable (Prosecution of Offences Act 1985, s.18).

The Court of Appeal has given the following guidance (R v Northallerton Magistrates’ Court, ex parte Dove [2000] 1 Cr App R (S) 136 (CA)):

1. an order for costs should never exceed the sum which, having regard to the offender’s means and any other financial order imposed, he or she is able to pay and which it is reasonable to order him or her to pay;
2. an order for costs should never exceed the sum which the prosecutor actually and reasonably incurred;
3. the purpose of the order is to compensate the prosecutor. Where the conduct of the defence has put the prosecutor to avoidable expense, the offender may be ordered to pay some or all of that sum to the prosecutor but the offender must not be punished for exercising the right to defend himself or herself;
4. the costs ordered to be paid should not be grossly disproportionate to any fine imposed for the offence. This principle was affirmed in BPS Advertising Limited v London Borough of Barnet [2006] EWCA 3335(Admin) QBD, in which the Court held that, while there is no question of an arithmetical relationship, the question of costs should be viewed in the context of the maximum penalty considered by Parliament to be appropriate for the seriousness of the offence;
5. if the combined total of the proposed fine and the costs sought by the prosecutor exceeds the sum which the offender could reasonably be ordered to pay, the costs order should be reduced rather than the fine;
6. it is for the offender to provide details of his or her financial position so as to enable the court to assess what he or she can reasonably afford to pay. If the offender fails to do so, the court is entitled to draw reasonable inferences as to means from all the circumstances of the case;
7. if the court proposes to make any financial order against the offender, it must give him or her fair opportunity to adduce any relevant financial information and to make appropriate submissions.

Where the prosecutor is the Crown Prosecution Service, prosecution costs exclude the costs of the investigation, which are met by the police. In non-CPS cases where the costs of the investigation are incurred by the prosecutor a costs award may cover the costs of investigation as well as prosecution. Further guidance is provided in the Criminal Costs Practice Direction and the Criminal Procedure Rules Part 76 . However, where the investigation was carried out as part of a council officer’s routine duties, for which he or she would have been paid in the normal way, this is a relevant factor to be taken into account when deciding the appropriate amount of any costs order.

Where the court wishes to impose costs in addition to any of the following: a fine; compensation; the surcharge, but the offender has insufficient resources to pay the total amount, the court must apply the following order of priority:

1. compensation;
2. surcharge;
3. fine;
4. costs.