Coleman, R. v

Where a Crown Court costs order was properly made at sentence, a defendant’s later alleged deterioration in financial circumstances should be addressed in the Magistrates’ Court through collection and enforcement procedures. The Court of Appeal will not, as settled practice, entertain an appeal whose sole basis is that subsequent change.

A sentencing court must assess ability to pay within a reasonable period. It should not add costs where compensation, a fine or confiscation will absorb the defendant’s available assets. A later reduction of a confiscation order does not create an issue estoppel concerning costs where costs were not determined in those proceedings.

Following a reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995, the appellant challenged a £16,000 Crown Court costs order made when he was sentenced in 2003.

The sentencing judge had also made a confiscation order of £326,412. The appellant had then accepted that his available assets exceeded that amount and did not contend that he could not pay costs within the 18 months allowed. He later obtained a certificate of inadequacy which reduced the confiscation order to £1 after his investments proved insufficient.

When enforcement of the unpaid costs began in the Magistrates’ Court, he sought to appeal on evidence that his financial circumstances had worsened. The central issue was whether that later change should be determined by the Court of Appeal or by the Magistrates’ Court.

1. The appeal was dismissed and the applications to adduce fresh evidence were refused. The original costs order had been properly made at sentence. The appellant had not then advanced evidence that he could not pay within the period allowed, and his own position was that his assets exceeded the confiscation amount.

2. A Crown Court may order prosecution costs only in an amount which is just and reasonable under section 18(1) of the Prosecution of Offences Act 1985. It must not order costs which the evidence shows the defendant cannot pay within a reasonable time. Costs are ordinarily subordinate to compensation, a fine and a confiscation order where those liabilities exhaust the defendant’s available assets. That principle, illustrated by Szrajber [1994] 15 Cr App R (S) 821, did not invalidate this order because the appellant’s available assets had then been accepted to exceed the benefit figure.

3. The later certificate of inadequacy and variation of the confiscation order created no issue estoppel. Those proceedings did not determine the costs order or the appellant’s wider assets and income. The question of costs enforcement therefore remained open.

4. Under the statutory collection and enforcement scheme, including section 41 and Schedule 9 to the Administration of Justice Act 1970, the Magistrates’ Court is the proper forum for a subsequent alleged inability to pay. It can investigate means, allow time or instalments, and take or defer enforcement measures. It is better equipped than the Court of Appeal for fact-sensitive and continuing assessment of a debtor’s means.

5. The court disapproved the approach in Richards [2014] EWCA Crim 1302, insofar as it treated the Court of Appeal as the forum for reducing a properly made costs order after a claimed later change in means. The analogous approach for fines, stated in Farrell & Hough Green Garage Ltd [2007] EWCA Crim 1896, supported recourse to the Magistrates’ Court. The stayed enforcement proceedings should continue there.

• Court of Appeal (Criminal Division)—on a reference by the Criminal Cases Review Commission, dismissed the appeal against the Crown Court costs order and refused fresh evidence.
• Crown Court—in 2003 imposed a £16,000 prosecution costs order, payable within 18 months, alongside sentence and a confiscation order.