Rahal, R v

A prosecution costs order under section 18(1)(c) of the Prosecution of Offences Act 1985 must be just and reasonable. It is compensatory, not punitive, and must be limited to costs actually, reasonably and properly incurred. The court must consider the defendant’s means and any other financial order, since an order that cannot be paid will not be reasonable.

In a joint trial, a defendant should ordinarily bear only costs attributable to the case against that defendant. A local authority prosecuting under its statutory power need not have its costs assessed by reference to Crown Prosecution Service scales. However, even useful expenditure, including a second advocate, is not recoverable from the defendant unless it is just and reasonable in light of the case’s complexity and circumstances.

The appellant was convicted at the Crown Court at Southwark of obtaining a tenancy by deception. She falsely claimed to have a child in order to obtain public housing. Following an 18-day joint trial, she received five months’ imprisonment. There was no appeal against sentence.

At a later hearing, the court made a confiscation order of £29,731, payable as compensation to the London Borough of Southwark. It also ordered the appellant, who had funds available, to pay £23,933.50 towards the Borough’s prosecution costs. No costs order was made against three co-defendants because they lacked means.

The appeal concerned whether the costs order was just and reasonable, whether it properly reflected costs attributable to the appellant, whether Crown Prosecution Service cost scales were relevant, and whether the appellant could be required to pay for two counsel.

1. Appeal allowed in part. The costs order was quashed and replaced with an order for £17,183.50. The reduction represented the fee of £6,750 for second counsel.

2. Under section 18(1)(c) of the Prosecution of Offences Act 1985, read with Rule 45.2 of the Criminal Procedure Rules 2015, a costs order must be just and reasonable. It must compensate the prosecutor for costs actually and reasonably incurred, rather than punish the defendant. The court must consider the defendant’s means and other financial orders. It was therefore proper to take account of the appellant’s available funds.

3. The court accepted the principles drawn from R v Hayden (1975) 60 Cr App R 304, Associated Octel Limited [1997] 1 Cr App R(S) 435, and R(Gray) v Aylesbury Crown Court [2014] 1 WLR 818. A contested trial may generate higher compensatory costs, but a defendant should not be penalised for pleading not guilty. Costs may include investigation and hearing costs, but, in a joint trial, must be confined to those attributable to the prosecution of that defendant.

4. The costs schedule had in fact allocated costs to the appellant’s individual prosecution. The judge was not required to assess a local authority’s reasonable costs by Crown Prosecution Service scales. The Borough was entitled to prosecute under section 222 of the Local Government Act 1972 and, in principle, to recover its reasonably incurred costs.

5. However, the offence was ultimately relatively straightforward. Although a second counsel might have assisted the prosecution in a paper-heavy case involving benefit evidence, it was not just and reasonable to require the appellant to pay that second counsel’s fee.

• Court of Appeal (Criminal Division): Allowed the appeal in part in [2017] EWCA Crim 1779. It quashed the prosecution costs order of £23,933.50 and substituted £17,183.50.
• Crown Court at Southwark: Convicted the appellant on 29 January 2016 of obtaining services by deception. At the subsequent confiscation and costs hearing, it ordered compensation of £29,731 and prosecution costs of £23,933.50.