Dickinson, R. v [2010] EWCA Crim 2143

[2010] EWCA Crim 2143Case No 201000140 A8
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 29 July 2010
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE MOSES
MR JUSTICE KENNETH PARKER
HHJ BEVAN QC
(SITTING AS A JUDGE OF THE CACD)
Between
R E G I N ACrownv
Between
ADAM DICKINSON
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr A Smith Appeared for AppellantMr Q Hawkins Appeared for Crown
J U D G M E N T
[1]MR JUSTICE KENNETH PARKER: On 18 November 2009, at the Crown Court at Sheffield, the appellant pleaded guilty to possession of a class A drug, namely cocaine, and was fined £200 and ordered to pay £1,200 prosecution costs. These amounts were ordered to be paid at the rate of £20 a week. He appeals against sentence by leave of the single judge who directed the Crown to provide a skeleton argument and attend the hearing, which it has done.[2]The background is as follows. Shortly before midnight on 22 May 2009, the appellant was stopped in Barnsley Town Centre and arrested on suspicion of being in possession of drugs. His car was later searched and two bags containing a total of just over 2.5 grams of cocaine at 5 per cent purity were recovered. When interviewed, the appellant said one of the bags was his but the other belonged to a friend.[3]On 9 September 2009 the matter first came before Barnsley Magistrates' Court, who had jurisdiction to try the offence summarily and were prepared to exercise that jurisdiction. However, for reasons that never became clear, the appellant pleaded not guilty and elected for trial on indictment in the Crown Court. On 4 November 2008, therefore, Barnsley Magistrates' Court committed him for trial at Sheffield Crown Court.[4]On 18 November 2009 the appellant was arraigned in the Crown Court. At the hearing, Mr Andrew Smith of counsel appeared on his behalf, instructed by Phillip and Robert Howard Solicitors who had been acting for the appellant since his first appearance in the Magistrates' Court on 9 September 2009. Ms Susan Evans of counsel appeared for the prosecution, instructed by the Crown Prosecution Service. On arraignment the applicant pleaded guilty.[5]After entry of the plea there was a discussion between counsel and the judge, and the judge asked Ms Evans about costs. She said the prosecution costs were £1,500. Mr Smith, on behalf of the applicant, asked the prosecution to justify the figure of £1,500. Ms Smith produced a CPS document setting out a scale of costs in respect of committal for trial, with a lower figure of £1,200, an average figure of £1,500 and a higher figure of £1,800. The judge asked whether these were national scales which had been discussed at a high level, and Ms Evans confirmed that they were. The judge then, choosing the lowest figure, allowed costs at £1,200.[6]The judge proceeded to sentence the applicant. He said that the applicant was not a heavily convicted person but that he did have a previous conviction for possessing class A drugs for which the Magistrates' Court had fined him £100. The judge imposed a fine of £200 and an order for costs of £1,200, the whole sum to be paid at £20 a week.[7]The grounds of appeal that were advanced in writing were that, firstly, the appellant had been made the subject of a costs order which was wholly disproportionate to the actual costs incurred by the prosecution authority; secondly, that the Crown were wholly unable to justify that the actual costs incurred in this case were either the £1,500 originally sought or the £1,200 ordered; and thirdly, that if the costs order was a reasonable estimate of the costs incurred by the Crown, it was not just or reasonable to make the appellant, who was a man of limited means, the subject of an order that amounted to such a large proportion of his disposable income over such a long period of time. The legal framework[8]Section 18(1)(c) of the Prosecution of Offences Act 1985 provides:
"Where any person is convicted of an offence before the Crown Court, the court may make such order as to the costs to be paid by the accused to the prosecutor as it considers just and reasonable"
. Section 18(3) provides that the amount to be paid must be specified in the order. There is, therefore, no current provision for the taxation or assessment of cost orders against an accused.[9]It is well established that orders for costs should not be made which are beyond the means of the defendant; see R v Mountain 68 Crim App R 41 COA and R v Oliver and Oliver 11 Crim App R (S) 10 COA where it was held that there was no principle requiring a financial penalty payable by instalments to run for no more than a year, provided it was not an undue burden and so too severe a punishment. The judgment was directed primarily at fines and compensation, but the rationale plainly embraces costs orders as well, as the editors of Archbold suggest. There was conflicting authority on the issue of the relationship between sentence and costs. That conflict was resolved in R v North Allerton Magistrates' Court ex parte Dove [2001] Crim App R (S) 136 in the Divisional Court, where it was held that an order for payment of costs could not ordinarily be grossly disproportionate to a fine, although there was no requirement that the two amounts should necessarily stand in some arithmetical relationship to each other. The fine should be fixed first and then a decision should be made as to costs. If the total sum exceeded that which the defendant could reasonably be expected to pay, it was preferable to achieve an acceptable total by reducing the costs order. In that case, it was held also that an order for costs should never exceed the sum which the prosecutor has actually and reasonably incurred. The approach of this court on an appeal against an order for costs in the Crown Court[10]The approach of this court on such appeals was authoritatively laid down in R v Larry Macatonia [2009] EWCA Crim 2516. In giving the judgment of the court comprising Sir Anthony May President, Langstaff J and Wyn-Williams J, Langstaff J said:
"We must look at the judgment of the court below to see whether it is wrong in principle or whether there is anything manifestly excessive about the order which was made" (paragraph 10) And further on: "
We cannot, given the nature of our jurisdiction, be concerned with points of detail and not of principle. It would be a sad day if it were readily to be thought that orders of costs made, as this order was, on the basis of limited information at the close of proceedings, should be appealed to this court on anything other than a decision which was effectively manifestly excessive or was wrong in principle" (paragraph 15). The issues of principle[11]In our judgment, the first issue is whether the learned judge erred in principle by relying on the document produced by the prosecution at the hearing, namely a CPS document headed "Scales of costs 1 September 2009; application for costs against convicted defendants at scale of costs". The material part of that document read as follows:
"1) The policy of the CPS is to apply for costs against convicted defendants, unless the particular circumstances of the case mean that such an application would lack merit or an order for costs would be impractical; 2) The following scales provide guidance on the level of costs incurred by the CPS in various types of proceedings. The scales represent the average costs incurred in a wide range of cases and provide a bench mark to estimate the costs in individual cases, excluding very high cost cases. The scales are indicative of single defendant cases only, and the figures should be increased by 20 per cent for each additional defendant; 3) More complex cases should attract the higher rate of costs, and relatively straightforward cases the lower range; ... 4) When seeking a costs order, prosecutors should inform the court are of all costs incurred and invite the court to consider what should be paid. Discretion should be exercised in putting forward a reasonable estimate of the costs incurred in the individual cases"
. The document then sets out hourly average rates appropriate for CPS staff and then, under the heading "Types of proceeding; Crown Court" it says, in respect of committals for trial, a lower sum of £1,200, an average of £1,500, and a higher sum of £1,800. It is said that these scales include the costs of committal proceedings.[12]Further assistance on this document was given in evidence prepared for this appeal by Mr Keith Milburn of the Crown Prosecution Service. It seems to us that, in the light of the evidence, the general method for calculating the cost scales is soundly based. Estimates are made of the time that is reasonably expected that different activities will take and the costs of each such activity is then calculated on the basis of the rates of pay of those who would ordinarily be expected to do the work. At appropriate periods the total costs notionally attributed to the output of the CPS on this basis is compared with the actual cost of the CPS so as to ensure that by following the cost scales the CPS is not at risk of earning an unjustified monopoly profit. The result is consistent, reliable and transparent. Furthermore, we accept the submission of counsel for the CPS that, given the scale of the CPS activities, it would add substantially to the CPS costs if it were required to produce itemised bills for each and every prosecution, with little if any benefit when the itemised amounts would be likely, in general, to accord with the amounts shown in the costs scales.[13]In principle, therefore, the judge was entitled to rely on the costs scales as a fair and reasonable guide to the costs that the CPS incurred in bringing and concluding this prosecution. The judge then took the lowest figure from the relevant part of the costs scales. Of course, in each case, the judge as well as the prosecutor must be alert to the possibility that, having regard to the particular features of the case, the costs scale is not a fair and reasonable guide to actual costs incurred. In our judgment, however, there was nothing in the particular circumstances of this prosecution that could have led the judge to doubt that the costs scales did represent a fair and reasonable figure for actual costs incurred. That conclusion is, if anything, buttressed by further evidence submitted by the CPS for this appeal which seeks to estimate, relying in part upon the costs schedule, the actual costs incurred for this particular case.[14]The second issue of principle is whether the order for costs was "grossly disproportionate" to the amount of the fine. It is true that the costs, £1,200, were six times the amount of the fine imposed, but following the observations of Lord Bingham in North Allerton, to which I have already referred, a crude arithmetical comparison is not the correct approach. The costs scales are generally known, or should be known, as already noted. This applicant was represented from the time of his first appearance in the Magistrates' Court. It was plain, or should have been plain, that if the appellant elected trial in the Crown Court he would be exposed, if convicted, to a substantial order for costs. That would be the case even if he decided in the event to plead guilty in the Crown Court. As far as could be seen from the witness statements served by the prosecution and the admissions made in interview, the case against the appellant was overwhelming, at least so far as the possession of 1 gram of cocaine was concerned. It was wholly unclear in these circumstances why the appellant had pleaded not guilty in the Magistrates' Court and had elected trial on indictment in the Crown Court, only to plead at the first opportunity after committal. The learned

judge sought to explore the appellant's conduct with counsel who replied:

"I have got no doubt at all that he elected Crown Court trial, and I have got no doubt in my mind as to what reasons he was given by his solicitor for doing that, but that would be privileged and I am not going to speculate"
. The judge, and indeed this court, was therefore left with no explanation as to why the appellant had chosen to be tried in the Crown Court.[15]Taking account of all these circumstances, the costs were not grossly disproportionate, and justice would not be done in this case by denying the prosecution a fair and reasonable amount for their costs of this prosecution.[16]The third is whether the costs order is beyond the means of the appellant. Evidence was given that the appellant was earning £150 a week as an entertainer, as he described himself, and that he would pay the total amount, fine and costs, at a rate of £20 a week, which would require therefore a little less than 18 months to repay in full. Although this would undoubtedly, on those figures, impose a financial strain on the appellant, it was not suggested before the judge that it would be unduly and unfairly onerous, and there is no basis for this court, on appeal, to conclude that the judge erred in principle by imposing the order that he did.[17]For those reasons, we dismiss this application.

LORD JUSTICE MOSES: Thank you very much.

[19]MR HAWKINS: My Lord, this court has the power to award costs under the same section with which we have just dealt --

LORD JUSTICE MOSES: Are you asking for your costs?

[21]MR HAWKINS: I am instructed to ask for my costs, yes.

LORD JUSTICE MOSES: In what figure?

[23]MR HAWKINS: The figure is £1,611, my Lord. I have spoken to my learned friend and provided him with documentation in respect of that.

LORD JUSTICE MOSES: Yes.

[25]MR SMITH: It is roughly twice what the defence costs would be in this case, but the point that I make is that the learned judge in the lower court has adjudicated this man can only afford to pay £20 a week, that is why the fine was to be paid first and then the costs.

LORD JUSTICE MOSES: Thank you very much. No order as to costs.