Kury v Maidstone Magistrates' Court

When ordering a defendant to pay prosecution costs under section 18 of the Prosecution of Offences Act 1985, magistrates must first determine what costs it is proper and reasonable for the prosecution to claim. They must then decide what sum is just and reasonable for the defendant to pay, having regard to the defendant’s means.

An order should not exceed the defendant’s ability to pay and costs are compensatory, not punitive. Unchallenged evidence that an undischarged bankrupt’s outgoings substantially exceed income may make any costs order inappropriate. Voluntary child-maintenance payments and intermittent assistance from a parent cannot simply be treated as available resources or assumed future savings.

The claimant pleaded guilty before Maidstone Magistrates to offences under the Insolvency Act 1986. The court imposed conditional discharges and ordered prosecution costs of £1,800, later reduced to £1,200 under section 142 of the Magistrates’ Courts Act 1980.

The claimant sought judicial review, arguing that the magistrates had failed to give proper weight to his means, had relied on irrelevant considerations, and had made an order which an undischarged bankrupt with a substantial monthly shortfall could not afford. The central issue was whether the costs order was lawful under section 18(1) of the Prosecution of Offences Act 1985.

1. Application allowed. The decision of the magistrates requiring the claimant to pay £1,200 prosecution costs was quashed.
2. Section 18 of the Prosecution of Offences Act 1985 required a two-stage approach. The magistrates had first to consider the propriety and reasonableness of the prosecution’s claim for costs. They then had to determine what sum was just and reasonable for the defendant to pay, having regard to his means.
3. The principles stated in R v Northallerton Magistrates’ Court ex parte Dove [2000] 1 Cr App R (S), 136 included that an order should not exceed the sum the defendant could reasonably afford, that costs were compensatory rather than punitive, and that the defendant had to disclose relevant financial information. The claimant’s means were unchallenged and showed monthly outgoings materially exceeding income. In those circumstances, the magistrates could not properly conclude that a costs order was appropriate, still less one for £1,200.
4. The magistrates had wrongly treated voluntary maintenance payments as a source from which the claimant could make further savings, despite existing arrears. They had also improperly assumed that intermittent rent payments from the claimant’s father could continue.
5. The court further noted an apparent statutory lacuna concerning costs from central funds. Under sections 16(5) and 16(6) of the Prosecution of Offences Act 1985, a Divisional Court could make the relevant order, whereas a Single Judge of the Administrative Court could not. The court considered that the position might merit legislative attention.
6. As a Divisional Court, the court ordered payment of the claimant’s costs out of central funds.

The judgment does not state any prior appellate decision in this litigation. The claimant applied for judicial review of the magistrates’ costs order, and the Divisional Court allowed the application.