Brown, R. v

A criminal court should make an order for prosecution costs only where it is satisfied that the defendant has both the means and the ability to pay. Such an order is not a financial penalty to be met only after release from custody. Where there is no evidence of a realistic prospect that an imprisoned defendant will have means on release, a costs order is wrong in principle. This approach applies Practice Direction (Costs in Criminal Proceedings), paragraph 3.4.

The appellant pleaded guilty at the Crown Court at Southwark to ten counts of making indecent photographs of a child. He received a total sentence of 12 months’ imprisonment, a Sexual Offences Prevention Order, and an order to pay £450 prosecution costs within 12 months.

He appealed, with permission, only against the costs order. He had been unemployed and receiving benefits for about five years. Defence counsel had not addressed costs before sentence and was not invited to address the appellant’s likely means after release. The issue was whether the costs order could stand without evidence that he would be able to pay it.

Disposition and reasons

1. The appeal was allowed to a limited extent. The court quashed the £450 costs order and made an order for a £100 victim surcharge. The terms of imprisonment and the Sexual Offences Prevention Order were not challenged.
2. Paragraph 3.4 of the Practice Direction (Costs in Criminal Proceedings) requires satisfaction that a defendant has the means and ability to pay before a costs order is made. A costs order is not a penalty intended to be discharged only after release from prison.
3. The court followed R v Jenkins [2005] EWCA Crim 06. Financial penalties and orders require a clear prospect of available means to satisfy them. The appellant’s long-term unemployment and benefit dependency did not establish such a prospect. There was no evidence that his financial position would improve during the six months after his release, and the judge’s allowance of 12 months for payment did not cure that absence of evidence.
4. It was therefore wrong in principle to impose costs. Since the sentencing judge had omitted a victim surcharge which ought to have been ordered, the court substituted a £100 surcharge.

• Court of Appeal (Criminal Division) — by judgment dated 29 October 2013, [2013] EWCA Crim 2023, allowed the appeal to the extent of quashing the costs order and ordering a £100 victim surcharge.
• Crown Court at Southwark — on 11 July 2013 imposed 12 months’ imprisonment, a Sexual Offences Prevention Order and £450 prosecution costs after guilty pleas entered on 13 June 2013.