Da Silva, R v

A prosecution costs order under section 18(1) of the Prosecution of Offences Act 1985 must be just and reasonable. It should compensate only costs actually and reasonably incurred in securing conviction. Where a defendant is convicted on some counts but acquitted on others, the court should ordinarily make an allowance for the acquittals. The assessment is not strictly mathematical, but must be fair and proportionate.

The order must also reflect the offender’s means and must not exceed the sum which the offender can pay, or which it is reasonable to expect the offender to pay. A standard-scale claim does not remove the need for that individual assessment.

The appellant was tried twice on charges concerning the same complainant. At the first trial he was acquitted of sexual assault and exposure, while the jury could not reach verdicts on two voyeurism counts. At the retrial he was convicted of one voyeurism count and acquitted of the other.

At sentence in the Crown Court at Wood Green, the judge made a prosecution costs order of £2,800, payable at £200 per month, alongside a community order and victim surcharge. The sum was later shown to be the lowest figure in the CPS scale for a Crown Court trial and to relate only to the retrial.

The appeal concerned whether that order was just and reasonable given the partial acquittal and the appellant’s limited means.

1. The appeal was allowed to the extent of the costs order. The court quashed the £2,800 order and substituted an order for £1,400, payable at £100 per month from 1 February 2017.

2. Section 18(1) of the Prosecution of Offences Act 1985 permits a Crown Court, following conviction, to order such prosecution costs as are just and reasonable. Its compensatory purpose means that an order should not exceed costs actually and reasonably incurred in prosecuting the defendant to conviction.

3. Where conviction is obtained on only some counts, it will normally be wrong to order payment of all prosecution costs. The court applied the approach in R v BBQ Plc [2005] EWCA Crim 2297 and R v Andrew Splain 2010 EWCA Crim 49: an allowance should be made for acquittals, but fairness and proportionality do not require a strictly arithmetical division.

4. The offender’s ability to pay is a separate material consideration. Costs must not exceed the sum the offender can pay or which it is reasonable to expect the offender to pay.

5. Although £2,800 was only a contribution to the retrial costs at the lowest CPS scale, the Crown Court had not investigated sufficiently either the effect of the acquittal on one of the two retrial counts or the appellant’s means. The order therefore was neither just nor reasonable. A £1,400 order, payable at £100 monthly, properly reflected both matters.

• Court of Appeal (Criminal Division): Allowed the appeal against the prosecution costs order. The order for £2,800 was quashed and replaced with an order for £1,400, payable at £100 per month.

• Crown Court at Wood Green: On 8 February 2016, following conviction at the retrial on one voyeurism count, imposed a 12-month community order, a £60 victim surcharge and prosecution costs of £2,800 payable at £200 per month.