BPS Advertising Ltd v London Borough of Barnet

An order for prosecution costs must compensate the prosecutor, not punish the defendant. Under Prosecution of Offences Act 1985, the court may award costs actually and reasonably incurred, including appropriate investigation costs. The award must remain reasonable having regard to the defendant’s means and other financial orders. Although costs need not bear an arithmetical relationship to the fine, they should not ordinarily be grossly disproportionate to it. Salaried investigation time and excessive legal preparation require particular scrutiny. Where the costs claimed are excessive, the court may substitute an appropriate overall sum.

BPS Advertising Ltd pleaded guilty before Barnet justices to an offence under the Town and Country Planning Act 1990 and the Town and Country Planning (Control of Advertisement) Regulations. The justices imposed the maximum fine of £1,000 and ordered payment of £7,495.67 in prosecution costs.

The company challenged the amount of costs by case stated. Its means were not in issue. The central question was whether the costs were excessive and disproportionate, including costs relating to investigation, legal preparation and counsel.

1. The appeal was allowed to the extent that the costs order was reduced. The justices’ order of £7,495.67 was excessive, and the appropriate costs order was £2,250.

2. Under section 18(1) of the Prosecution of Offences Act 1985, the court may order such costs as are just and reasonable. The recoverable sum may include investigation costs. Neville v Gardner Merchant Ltd (1983) 5 Cr App R (S) 349 establishes that the discretion is sufficiently wide to include the time of a publicly funded investigating officer, particularly where the investigation resulted from a specific complaint. That principle does not require every investigation cost to be recovered.

3. The approach in R v Northallerton Magistrates’ Court, ex parte Dove (1999) 163 JP 657 was applied. Costs must not exceed the sum actually and reasonably incurred or the sum the defendant can reasonably pay. Their purpose is compensatory rather than punitive. They should not ordinarily be grossly disproportionate to the fine, although no fixed arithmetical relationship is required.

4. In assessing proportionality, the court should consider the statutory maximum penalty, the simplicity of the issue, whether the investigator was undertaking ordinary salaried duties, and the reasonableness of legal and counsel costs. The enforcement officer’s recoverable costs were assessed at no more than £300–£400, the legal department’s at no more than £1,000–£1,500, and counsel’s at approximately £700–£800.

5. The appellants were awarded their costs out of central funds, summarily assessed at £3,500.

• Barnet justices: convicted the appellants on their guilty plea, imposed a £1,000 fine and ordered prosecution costs of £7,495.67.
• High Court (Administrative Court): on a case stated, reduced the costs order to £2,250 and awarded the appellants £3,500 from central funds for the appeal.