Da Silva, R v [2016] EWCA Crim 1939

Case No 201601153 A2[2016] EWCA Crim 1939
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM WOOD GREEN
HER HONOUR JUDGE GREENBERG QC
20140833
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 16/12/2016
Before
LORD JUSTICE GROSSMR JUSTICE KINGMR JUSTICE SWEENEY
Between
R E G I N AAppellantWANDERSON DA SILVARespondent
Tania Panagiotopoulou (instructed by EBR Attridge LLP Solicitors) for DefendantThe Crown did not attend and was unrepresentedHearing Hearing date: 18/08/2016
Judgment
[1]This came before us on the 18th of August 2016 as an appeal against sentence limited to the order that the Appellant pay £2,800 prosecution costs, payable at the rate of £200 per month. This costs order was made as part of the sentence passed on the 8th of February 2016 in the Crown Court at Wood Green before HHJ Greenberg QC. The remainder of the sentence was a 12 month community order comprising a supervision and 150 hour unpaid work requirement, and a victim surcharge order in the sum of £60.[2]The costs order was made following the Appellant’s conviction on the 14th of January 2016 after trial on one of two counts of voyeurism. He was acquitted on the other count. The trial had taken place over 3 days beginning on the 11th of January.[3]The trial was a retrial. The Appellant had originally stood his trial between the 6th and 10th of July 2015 on an indictment containing 4 counts relating to the same alleged victim, a young girl living in the same lodging address as the Appellant, and to events dating back to April/May 2014. Two of the counts alleged voyeurism on separate occasions on respectively the 18th of April 2014 and 6th of May 2014 when it was alleged that the Appellant had been observing the girl while she was taking a shower. The jury could not reach verdicts on these counts. Hence the retrial. He was however acquitted on the other two counts alleging exposure and sexual assault.[4]In summary therefore the Appellant had over two trials and as regards the four counts which he had originally faced, been convicted of one but acquitted of the other three.

Legal framework

[5]The power to make the costs order in this case derives from section 18(1) of the Prosecution of Offences Act 1985. It arises where the defendant has been convicted of an offence before the Crown Court but not where he has been acquitted.[6]The power of the court under section 18(1) is to ‘make such order as to the costs to be paid by the accused to the prosecutor as it considers just and reasonable’.[7]In principle the purpose of any prosecution costs order under section 18 is to compensate the Prosecution for its costs incurred in prosecuting the defendant to conviction. Any such order should not exceed that which the prosecutor has actually and reasonably incurred in that regard.[8]Where an accused is convicted only on some of several counts on an indictment it would normally be wrong to make him pay the whole of the prosecution costs. See decisions of this court in R v BBQ Plc [2005] EWCA Crim 2297 R v Andrew Splain 2010 EWCA Crim 49. Some allowance ought to be made for the fact he has been acquitted on others although it does not follow that a strictly mathematical approach should be taken. (BBQ at paragraph 56 (vi); Splain at paragraph 14 and 15). The amount of the allowance is in the discretion of the court taking into account principles of proportionality and fairness (Splain at paragraph 16).

The defendant’s means: ability to pay

[9]It is well established that any order for costs should never exceed the sum the offender is able to pay and that which it is reasonable to expect him to pay. [see Practice Direction (Costs in Criminal Proceedings) 2013 1 WLR 3255 at paragraph 3.4 Mountain (1978) 68 Cr App R 41; Northallerton Magistrates Court ex parte Dove 168 JP 657].

This appeal

[10]The ground of appeal sought to be pursued before us was that this costs order was neither just nor reasonable when taking into account the partial acquittals and what were described as the very limited means of the Appellant.[11]The difficulty we found ourselves in was that there was no material before us by which we could ascertain precisely what the £2,800 costs which had been applied for by the prosecution and was granted by the Crown Court, was meant to represent. All we had was this short passage in the sentencing remarks: ‘In addition to that, I see no reason why the taxpayer should foot the bill for your trial. There were two trials albeit you were acquitted of some of the charges in the first trial, but not of course of the charge for which you were ultimately found guilty… The prosecution application for costs is a modest one and therefore the order I make is that you pay £2,800 prosecution costs’.[12]Miss Pangiotopoulou who drafted the grounds of appeal and who appeared before us could not assist from her own knowledge since although she had been trial counsel, she had not appeared at the sentencing hearing when the Appellant was represented by different counsel, Miss Ramsden. Miss Pangiotopoulou was able to submit, based on the limited information in the Judge’s sentencing remarks, that that sum represented the whole of that which the Prosecution had asked for, but it did not follow that that sum was meant to represent the whole of the prosecution costs including the costs of both the original trial and the retrial.[13]Nor did we have any assistance from the prosecution as to how this sum of £2,800 had been arrived at since the prosecution did not appear before us and had not put in any written response to the appeal. We did not have sight of any costs schedule or other written application which may have been submitted in support of any oral application made to the Judge, or of any transcript of the terms in which the application was made to her.[14]Further it was unclear to us what investigation had been undertaken at the sentencing hearing into the means of the Appellant. The Appellant was a Brazilian national who had been in the UK since 2012. There was a presentence report stating that the Appellant had come to the UK as a migrant worker from Portugal where he had lived for the previous 11 years; that since coming here he had worked in a variety of jobs; that he currently worked full time on shift work as a delivery driver with a take home pay of £630 a fortnight depending on how many parcels he could deliver; that his outgoings included paying his own fuel costs and rent on his shared accommodation where he lived alone. In her written grounds Miss Pangiotopoulou had stated that the Appellant ‘worked as a courier earning approximately £200 per week, and who claimed no benefits. His expenses included rent, and the usual living expenses. He was clearly a man of limited means. He had no savings’.[15]All that could be gleaned from the sentencing remarks as to the Judge’s approach to the Applicant’s means and ability to pay, was that contained in a short section dealing with time to pay in which the Judge rejected an offer made by Miss Ramsden, on instructions, of £100 a month, and made an order for £200 per month payable on the 1st of each month. The judge on enquiry had been told by Miss Ramsden that the Appellant was paid twice a month on the 16th and 2nd of each month.[16]In these circumstances we did not proceed with the appeal but gave directions designed to fill the gaps in our understanding of what had happened in the court below and what the costs order was meant to represent.[17]We indicated that we would reconsider and determine this appeal on the papers once the fruits of our directions had been obtained. This we now proceed to do.

The present position

[18]Consequent upon our Directions we have received the following: i) A letter from a Specialist Prosecutor at the Crown Prosecution Service dated the 25th of August 2016 enclosing a schedule of costs dated 24th of August 2016; ii) a transcript of the proceedings on the 8th of February 2016 when the application for costs was discussed; iii) a note from Miss Panagiotopolou dated 29th of August 2016.[19]It is now clear that the figure of £2,800 applied for by the Crown on the 8th of February was an estimate of costs and came from a CPS policy guidance document issued to prosecutors labelled ‘Application for costs against convicted defendants’. That guidance sets out a recommended ‘Scales of Costs’ to be applied for after trial against a convicted defendant with the amount to be sought differing according to the complexity of the case. There are three levels of costs headed ‘Lower’; ‘Average’ and ‘Higher’. In the case of a Crown Court ‘Committal for Trial (Trial)’ the amounts indicated are respectively: £2,800; £3,500; and £4,200.[20]The Costs Schedule now supplied to this Court does not purport to be a breakdown of the prosecution costs actually incurred in this case. It explains the costs applied for by reference to the CPS policy guidance. The Scales of Costs are said to represent the average costs incurred in a wide range of cases and provide a benchmark by which to estimate cost in individual cases. More complex cases should attract the higher range and relatively straight forward cases the lower range. The scale of costs are indicative of single defendant cases. The figures include all staff preparation costs, including advocacy in magistrates’ courts and time spent in the Crown Court by paralegal officers/assistances. The Crown Court scalesinclude the costs of committal/transfer/sendingproceedings. However they do not include witness expenses, counsel fees or Crown Advocate’s costs or other specific costs.[21]As to the costs applied for in this case, the Costs Schedule tells us that this was the lower end of the costs that could be sought and that the Crown ‘has not added any additional expense for witness expenses, counsel fees or any other specific costs’. We are told that the total spent in instructing Prosecution Counsel on this case was £5059.20 which related to both trials but that none of this has been claimed from the Appellant. It is not stated how much of this figure related to the retrial.[22]In summary the Costs Schedule informs this court that the Crown did not request any costs in respect of the first trial; that the costs sought were confined to the costs of the retrial; that the costs claimed were not the whole of the costs incurred but ‘are a contribution to the costs incurred at the lowest scale’.[23]The prosecution documents now submitted do not expressly address the issue of the acquittal in the retrial and its impact upon the costs which were claimed.

The proceedings on costs before the Crown Court

[24]The transcript of proceedings show that the court below was not addressed in any great detail on the claimed sum of £2,800, save that the Judge was ultimately informed that this related only to the retrial and was the lowest figure which prosecuting counsel would be instructed to ask for. There was no breakdown as to how the sum was reached. No schedule of costs was produced. The CPS Policy Guidance does not appear to have been shown to the court although it was referred to inferentially by Mr Wilmer who appeared for the Crown at the sentencing hearing. He had not been trial prosecuting counsel.[25]Miss Ramsden when asked by the Judge what she said about the application for costs, replied that the Appellant had been acquitted of the majority of the counts. When the Judge responded that he had been acquitted not of a majority but one of two, Miss Ramsden asked to which trial the application related, the first one or the second one. It appears to have come as a surprise to both the Judge and Mr Wilmer that this was a retrial. Mr Wilmer intervened to say:
‘If it assists, it’s the lowest - I don’t think I was aware that there was a previous trial. It’s the lowest possible sum on the tariff proposed by those instructing me. I think the next level up is about £3,500...’
[26]Following clarification from both Miss Ramsden and the Clerk of the Court, that there had been a previous trial in which the Appellant had been acquitted of sexual assault and exposure but that the jury had been ‘hung’ on the two voyeurism counts, the Judge then expressly asked ‘is the figure of £2,800 just for the single trial?’ to which Mr Wilmer replied:
‘Yes. I took the very lowest figure. I assumed it was a relatively brief trial. I knew nothing of any prior…trial so it’s...quite literally the lowest amount I would be instructed to ask for’
[27]The above is the totality of what appears to have been placed before the Judge on what the claimed figure of £2,800 represented.

Investigation as to means

[28]There is a short passage in the transcript in which the Judge having been referred to what was outlined in the pre sentence report, observed that it did not say what the Appellant’s disposable income was, to which Miss Ramsden replied that it cost him £50 a week for the petrol which he had to pay for, and a few pounds a day for his own bus journeys and his rent was a £100 a week.

The Note from Miss Pangiotopoulou

[29]In her note of the 29th of August Miss Pangiotopoulou maintains her submission that the order for costs was neither just nor reasonable taking into account the circumstances of the Appellant as well as the partial acquittals.[30]She has supplied the court with an update as to the Appellant’s financial circumstances obtained from the Appellant with the aid of an interpreter on the occasion of the hearing of the 18th of August at which the Appellant was present.[31]We are informed that the Appellant has changed jobs. He is currently working as a kitchen porter earning £7.20 per hour, before tax. He works a minimum of 24 hours a week and a maximum of 48 hours a week. In addition he works as a cleaner, for 10 hours per week, earning £7.20 per hour, before tax. His expenses include rent of £100 per week, £21.20 travel per week to and from work. He spends approximately £50 per week on food. The usual living expenses, such as telephone bills and credit card payments are additional. He has no savings. He will have no income as a kitchen porter for the last 2 weeks of September as the restaurant which employs him will be closed for refurbishment.

Our Conclusions

[32]We consider that this order for costs cannot stand. In our judgment it was neither just nor reasonable. It may have represented only a contribution to the prosecution costs of the retrial but it did not properly reflect the fact of the Appellant’s acquittal on one of the two counts, or the evidence as to his means and ability to pay. In the court below the investigation into these material factors and the consideration of the impact they might have on any order for costs, was not in depth.[33]In our judgment the proper order to reflect both the fact that the Appellant was convicted on only one of the counts, and the evidence as to his means, would be one of £1,400 to be paid at the rate of £100 per month.[34]We accordingly allow this appeal to this extent. We quash the order for costs. We substitute an order that the Appellant pay prosecution costs in the sum of £1,400 payable at the rate of £100 per month on the 1st of each month. The first payment is to be made on the 1st of February 2017.