Constantine, R. v

Where confiscation proceedings are postponed under the Proceeds of Crime Act 2002, the sentencing court cannot make a costs order against the defendant until it has taken account of the confiscation order. This includes an order that the defendant pay no costs.

A prosecution-costs order forms part of sentence. A court may adjourn an unresolved part of the sentencing exercise where necessary. A later costs order is valid even after the statutory 28-day period where it completes a genuinely adjourned sentencing exercise, rather than varying a completed sentence.

The appellant admitted ten offences of applying false trade descriptions to vehicles and asked for twelve further offences to be taken into consideration. He received concurrent sentences of six months’ immediate imprisonment at Plymouth Crown Court.

Confiscation proceedings under the Proceeds of Crime Act 2002 were postponed. A confiscation order for £67,710 was made on 10 December 2009. The judge then adjourned the unresolved issue of prosecution costs for legal argument and, on 4 February 2010, ordered the appellant to pay £8,992.97 for costs incurred before the confiscation proceedings.

The appeal concerned whether costs could lawfully be reserved until confiscation had concluded and then ordered outside the 28-day period in section 15(4).

1. Appeal dismissed. The judge had power to make the costs order on 4 February 2010.

2. Sections 13(2) and 13(3)(a) of the Proceeds of Crime Act 2002 required the court to take account of the confiscation order before making an order involving payment by the defendant. That expression included both an order for costs and an order requiring the defendant to pay nothing. Once confiscation had been postponed, section 15(2) prevented a costs order at the sentencing hearing. The judge therefore acted correctly, albeit unwittingly, in making no costs order on 5 March 2009. His silence did not amount to an order that the appellant should not pay costs.

3. The confiscation order made on 10 December 2009 ended the postponement period. Although a costs order should normally then have been made, section 15(4) did not invalidate the later order. A prosecution-costs order is part of sentence: R v Hayden (1974) 60 Cr. App. R 304. A court may adjourn the whole or part of sentencing where necessary: R v Annesley (1975) 2 Cr.App.R 113 and R v Gordon [2007] 1 WLR 2117. Applying that principle, the December adjournment left the costs issue as an unfinished element of sentencing. The February hearing completed that exercise; it was not an impermissible extension of a completed sentence.

• Court of Appeal (Criminal Division) Dismissed the appellant’s challenge to the prosecution-costs order.
• Plymouth Crown Court On 4 February 2010, ordered the appellant to pay £8,992.97 prosecution costs incurred before the confiscation proceedings.
• Plymouth Crown Court On 10 December 2009, made a confiscation order for £67,710 and adjourned the remaining costs issue.
• Plymouth Crown Court On 5 March 2009, imposed concurrent six-month immediate custodial sentences after confiscation proceedings had been postponed.