Nuthoo, R. v

A criminal costs order made under Prosecution of Offences Act 1985, s 18(1), must be just in both amount and the time allowed for payment. The sentencing court must assess the offender’s means and decide any instalments; it cannot leave those matters to a subsequent administrative assessment. Since default may lead to imprisonment, an order must not create imprisonment by the back door or require payment over an oppressive period. An appellate court may quash a costs order that is wrong in principle or manifestly excessive. A period of up to three years may nevertheless be permissible in an appropriate case.

The appellant pleaded guilty in the Crown Court at Wood Green to dishonestly making a false statement in connection with housing benefit and failing to notify a change of circumstances. He had received housing benefit to which he was not entitled after failing to disclose money held in bank accounts.

The Recorder imposed a suspended sentence order and ordered him to pay £5,508 prosecution costs to the London Borough of Enfield. The appellant was already repaying the wrongly obtained benefit from sickness benefit. His appeal, brought with leave of the single judge, was limited to the costs order.

The central issue was whether the Recorder had properly assessed the appellant’s means and the consequences of enforcing the costs order.

Decision

1. The court allowed the appeal to the extent of quashing the £5,508 costs order.
2. The Recorder had power to make an order in the local authority’s favour under Prosecution of Offences Act 1985, s 18(1). The appellate question was whether the order was wrong in principle or manifestly excessive.
3. A criminal costs order is not enforced as an ordinary civil debt. By Administration of Justice Act 1970, s 41, it is enforced as though adjudged payable on conviction in the magistrates’ court. The sentencing court must consider the defendant’s means and has power to permit payment by instalments under Powers of Criminal Courts (Sentencing) Act 2000, s 141.
4. Default could result in imprisonment for up to six months under Schedule 4 to the Magistrates’ Courts Act 1980. The court must therefore avoid imprisonment by the back door and ensure that both the amount ordered and the payment period are just. A payment period of up to three years is not necessarily excessive in an appropriate case.
5. The Recorder had proceeded on the expectation that the order would be enforced as a civil debt and that the Department for Work and Pensions would later assess means. The only evidence before him was that, after the existing deduction for benefit repayment, the appellant had about £260 a month in sickness benefit. There was no evidential basis for additional assets. The order was consequently wrong in principle and manifestly excessive in amount and likely duration.

• Court of Appeal (Criminal Division). On 5 October 2010, the court allowed the appeal so far as it challenged the costs order and quashed that order: [2010] EWCA Crim 2383.
• Crown Court at Wood Green. On 29 March 2010, the Recorder imposed a suspended sentence order and ordered the appellant to pay £5,508 prosecution costs.