Balshaw v Crown Prosecution Service

Under section 18 of the Prosecution of Offences Act 1985, an order for a convicted defendant to pay prosecution costs depends on whether payment to the prosecutor is just and reasonable. Investigative costs are not excluded merely because they were incurred during investigation rather than in conducting the prosecution.

A prosecutor need not have incurred a contractual liability before recovering a cost. The court must, however, be satisfied that the prosecutor will itself meet the cost. The order must not create a windfall for the prosecutor or operate as a disguised fine or penalty.

The appellant was convicted of conspiracy and was the subject of confiscation proceedings in the Crown Court at Reading. On 4 September 2008, the judge ordered him to pay £9,000 prosecution costs and a further £13,600 for an accountancy report prepared by KPMG LLP.

The report had been commissioned after charge by the Thames Valley Police Economic Crime Unit, rather than by the Crown Prosecution Service. The appellant appealed on the ground that it was not just and reasonable to order payment to the CPS for costs which the police had incurred. The central issue was whether such an order was permissible under section 18 of the Prosecution of Offences Act 1985.

1. Appeal dismissed. The Crown Court had power under section 18 of the Prosecution of Offences Act 1985 to make an order for costs payable to the CPS if it was just and reasonable to do so.
2. The distinction between investigation costs and prosecution costs did not itself prevent recovery. The earlier authorities established that costs of investigation may be included where they properly form part of the prosecution costs. The restrictive reasoning in R v Maher [1983] 1 QB 784 depended on the different and narrower language of section 4 of the Costs in Criminal Cases Act 1973. The doubt expressed in R v Seymour [1987] 9 Cr App R(S) 395 was obiter and proceeded without recognising that distinction.
3. It would ordinarily be neither just nor reasonable to order payment to a prosecutor for a cost for which it bore no liability. A pre-existing contractual liability was not required. An order may cover fees incurred by another body if the court is satisfied that the prosecutor will meet those fees. The safeguards are that the prosecutor must not receive a windfall and that the order must not be a disguised fine or penalty.
4. The police were not part of the prosecution authority. The CPS and police were separate bodies with separate powers and budgets. That error in the judge’s reasoning did not invalidate the order. Counsel had made clear that the CPS sought the report costs on behalf of the police and would pass any recovery to it. The report was commissioned after charge and formed an important part of the CPS presentation of the case. The order was therefore just and reasonable.

• Court of Appeal (Criminal Division). By [2009] EWCA Crim 470, dismissed the appeal against the additional prosecution-costs order.
• Crown Court at Reading. On 4 September 2008, ordered the appellant to pay £9,000 prosecution costs and £13,600 for the accountancy report.