Splain, R. v

A prosecution costs order under section 17(1) of the Prosecution of Offences Act 1985 must be just and reasonable. Where a defendant is convicted on only a small number of counts and acquitted on many others, it is wrong in principle to order payment of all the prosecution’s costs without reflecting those acquittals.

The assessment is not a mathematical allocation by count. The court must take an overall view of fairness and proportionality, including the nature and scale of the offending and the public interest in the prosecution. The size of the costs compared with the fine is relevant context but is not decisive; costs may properly exceed the fine.

The appellant was convicted on three counts under the Trade Marks Act 1994 after a jury trial concerning counterfeit merchandise. He was acquitted on eight further counts and the remaining counts were withdrawn. The trial judge fined him £2,000 on each count and ordered him to pay the prosecution’s full costs of £22,045.

With permission of the Single Judge, he appealed the costs order only. The central issue was whether it was just and reasonable to make him pay all of the prosecution costs despite the limited number of convictions.

1. Appeal allowed in part. The full costs order of £22,045 was wrong in principle. The appellant had been convicted on only three counts, while he had been acquitted on eight and other counts had been withdrawn. Those acquittals had to be reflected in an order made under section 17(1) of the Prosecution of Offences Act 1985, which permits only such order as is just and reasonable.

2. The disparity between the costs and the fines was not the decisive consideration. In an appropriate case, the sentencing court may place greater financial weight on costs than on a fine. Nor should costs be apportioned by a simple count-by-count calculation.

3. The proper approach was an overall assessment of fairness and proportionality. The appellant had conducted a substantial commercial enterprise involving criminal offending, and the prosecution and trial were plainly in the public interest. These matters meant that the order should not be reduced to three-seventeenths of the claimed costs.

4. The court considered R v B & Q Plc [2005] EWCA Crim 2297, in which costs had been reduced after acquittals on some counts, but which also involved unusual abortive trials and related costs issues. Taking the overall view, the court substituted a costs order of £10,000, payable within 12 months from 27 July 2009.

• Court of Appeal (Criminal Division): allowed the appeal to the extent of substituting a prosecution costs order of £10,000 for the order of £22,045.
• Trial court: on 24 July 2009 the appellant was convicted on three counts; on 27 July 2009 he was fined and ordered to pay the prosecution’s full costs.