London Borough of Barking and Dagenham v Argos Limited

Under the criminal costs regime, a magistrates’ court may order a convicted defendant to pay the prosecutor’s costs of the proceedings as a whole, including costs incurred in proceedings heard elsewhere. The power under section 18 of the Prosecution of Offences Act 1985 is not confined to costs incurred before the magistrates. Criminal Procedure Rule 45.5 provides that an order should generally be made where the defendant can pay, while the final exercise of discretion remains with the sentencing court. Costs should be assessed only after conviction and by the court making the costs order. A Divisional Court cannot assess costs payable on a possible future conviction in another court.

The judgment concerned costs following two appeals and a judicial review arising from criminal proceedings against Argos. The prosecutor did not seek an immediate costs order from the Divisional Court. Instead, it invited the court to indicate that, if Argos were convicted, the magistrates could award the prosecutor’s costs of proceedings before the Divisional Court.

Argos relied on Lord Howard of Lympne v DPP [2018] EWHC 100 (Admin), arguing that the criminal costs regime did not permit recovery of the prosecutor’s costs of a case-stated appeal and that the Divisional Court should assess those costs. The issues were whether the magistrates’ jurisdiction extended to the proceedings as a whole and which court should assess the costs.

1. The prosecutor’s costs could be considered by the magistrates if Argos were convicted. Section 18 of the Prosecution of Offences Act 1985 permits the magistrates to make such order as is just and reasonable. Its ambit is not limited to matters heard before them. The jurisdiction extends to the entirety of the proceedings resulting in conviction, wherever those proceedings were heard.
2. Lord Howard of Lympne v DPP [2018] EWHC 100 (Admin) did not bar recovery of the prosecutor’s costs. That decision concerned a defendant’s inability to recover costs from central funds because paragraph 2(2) of Schedule 7 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 removed that entitlement. It did not impose a corresponding restriction on a prosecutor’s ability to recover costs from a convicted defendant under section 18.
3. The magistrates must assess the amount themselves. Criminal Procedure Rule 45.5(5), read with section 18, means that costs are not awarded or assessed for the prosecutor until conviction and that assessment remains with the court dealing with the offender following conviction. That court may consider the offender’s means when fixing the overall financial outcome, including fines, compensation and costs.
4. The court gave limited descriptive observations for the magistrates. Argos had lost its nullity appeal and its substantive abuse-of-process application. Its jurisdictional challenge had succeeded before the magistrates but ceased to be live after Mansfield v DPP [2022] QB 335; it was later abandoned in the Divisional Court. The observations were not intended to determine how the magistrates should exercise their discretion. The court therefore merely noted the prosecutor’s position and made no costs order.

The judgment records costs issues arising after the substantive decision in the same litigation, reported at [2022] EWHC 1398 (Admin). The present decision was made on written submissions without a further hearing. No costs order was made by this court; any costs on a future conviction were for the magistrates’ court to determine and assess.