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.

When sentencing for offences committed on or after 1 October 2012 a magistrates’ court must order the surcharge in the following ways (Criminal Justice Act 2003, s.161A; CJA 2003 (Surcharge) Order 2012; CJA 2003 (Surcharge) (Amendment) Order 2016, CJA 2003 (Surcharge) (Amendment) Order 2019 and CJA 2003 (Surcharge) (Amendment) Order 2020). This is a mandatory requirement set out in section 42 of the Sentencing Code. Courts can reduce the amount of the surcharge (if necessary to nil) if – and only if – an offender cannot pay both the surcharge and one or more of the following orders:

• compensation order,
• unlawful profit order,
• slavery and trafficking reparation order.

If a defendant can afford to make payment in addition to one or more of those orders, the court must impose a surcharge, rather than another financial order such as costs.

Offenders aged 18 and older at the date of the offence

Offenders aged under 18 at the date of the offence

* When sentencing an offender to immediate custody for a single offence committed before 1 September 2014 or more than one offence, at least one of which was committed before 1 September 2014, no surcharge is payable.

Person who is not an individual (for example, a company or other legal person)

Where an offender is dealt with in different ways only one surcharge (whichever attracts the higher sum) will be paid. Where there is more than one fine ordered, then the surcharge is assessed with reference to the total fine. Where a custodial sentence is imposed the surcharge is based upon the aggregate term imposed.

Where the court dealing with an offender for more than one offence and at least one offence was committed when the offender was under 18, the surcharge should be ordered at the rate for under 18s (Criminal Justice Act 2003 (Surcharge) Order 2012 art.5(3)).

There is no surcharge payable when compensation is ordered as a sentence (as opposed to an ancillary order).

The surcharge is not payable where the court is dealing with breach of a community order or breach of a suspended sentence or breach of a conditional discharge.

However, where the court deals with an offender for an offence and at the same time deals with one or more of the following:

• breach of a community order (whether by re-sentencing for the original offence or imposing a fine or more onerous requirements),
• breach of a suspended sentence (whether by activating the sentence in full or part or imposing a fine or amending the order), or
• re-sentence following breach of a conditional discharge (but not when simply allowing a conditional discharge to continue)

The surcharge for the new offence must be calculated by reference to the date that the earliest offence (including any offence for which the sentence has been breached) was committed. Where the offender has the means to pay the financial impositions of the court, there should be no reduction in compensation or fines whenever the surcharge is ordered. However, when the court:

• orders the offender to pay both a surcharge and compensation, but the offender is unable to pay both, the court must reduce the amount of the surcharge (if necessary to nil) (Sentencing Code, s.42(3)); or
• orders the offender to pay both a fine and a surcharge, the court may only reduce the fine to the extent that the offender is unable to pay both (Sentencing Code, s.125(4)).

Where the offender does not have sufficient means to pay the total financial penalty considered appropriate by the court, the order of priority is:

• compensation
• surcharge
• fine
• costs.

When sentencing for one or more offences any one of which was committed after 1 April 2007 but before 1 October 2012, a surcharge is payable only if the offender is dealt with by way of a fine, at a flat rate of £15 (Criminal Justice Act 2003 (Surcharge) Order 2012 art.7(2)).

The Criminal Courts Charge has changed - 24 December 2015

From 24 December 2015, the Criminal Courts Charge no longer applies following the announcement made by the Lord Chancellor and Secretary of State for Justice, Michael Gove.

This site has been updated in line with that announcement.