6.1 Award of Costs against Offenders and Appellants

Section 18 of the 1985 Act confers powers on Magistrates’ Courts and Crown Courts to make orders for costs against a person convicted of an offence or in dealing with a person in respect of certain orders as to sentence which are specified in Regulation 14(3) of the Criminal Regulations. In addition the Crown Court under Regulations 14(1) and 14(2) has the power to make an order against an unsuccessful appellant and against a person committed by the Magistrates’ Court in respect of proceedings specified in the General Regulations. Section 18(1) of the Act empowers the court to make such order payable to the prosecutor as it considers just and reasonable.

6.2 There are two limitations on the powers of the Magistrates’ Court in respect of such orders. First, where the defendant is ordered to pay a sum not exceeding £5 by way of fine, penalty, forfeiture or compensation the court must not make a costs order, unless, in the particular circumstances of the case, it considers it right to do so. Second, where the defendant is under 18 any costs order made against him in the Magistrates’ Court must not exceed the amount of the fine imposed on him (sections 18(4) and 18(5) of the Act).

6.3 The Court of Appeal (Criminal Division) has the power to order an unsuccessful appellant to pay such costs as it considers just and reasonable to such a person as may be named in the order. Such an award may include the costs of obtaining any transcript for the benefit of the Court of Appeal.

6.4 An order will normally be made if, but only if, the court is satisfied that the offender or appellant has the means and ability to pay. The amount to be paid must be specified in the order.

6.5 Although the Administrative Court is not covered by section 18 of the 1985 Act it has a complete discretion over all costs between the parties in relation to proceedings brought before it, by virtue of section 51 of the Supreme Court Act 1981.

6.6 By virtue of section 21(4A)(b) of the 1985 Act any order made under section 18 may include LSC funded costs.

6.7 Before an order is made against a defendant there must be evidence of his ability to pay. The order for costs is ‘a sentence’ within the meaning of section 50 of the Criminal Appeal Act 1968, and, as such, a person who is ordered to pay any part of the prosecutor’s costs, may appeal against such an order in accordance with the provisions of sections 9 and 10 of that Act. A court may only order a person to pay the whole or part of the costs of the counts of which he is convicted. This can cause difficulty in respect of an accused who pleads guilty at an early stage where co-defendants contest the case. A joint and several order may be made against a number of defendants convicted together on one indictment but the court should first consider generally what the costs were of bringing any particular defendants to justice, before it exercises its general discretion as to payment of costs by that defendant: R v Simmonds [1969] 1 QB 685; [1967] 2 All ER 399. Where costs are ordered against several defendants it is not right, if one or more has insufficient means to pay, that their share should be divided among the others who are able to pay. The total costs should be divided between the defendants equally and each should pay only his share (R v Ronson [1991] 13 Cr App Rep (s) 153; [1991] Crim LR 794 CA). Where there are several defendants it will usually be appropriate, when making an order for costs, to look to see what would be a reasonable estimate of costs if each defendant were tried alone (R v Harrison [1993] 14 Crim App Rep (s) 419).

6.8 Any contribution to the costs should not be out of step with any fine that a person is called upon to pay: R v Whalley [1972] 56 Cr App Rep 304.

6.9 In the circumstances of the cases outlined above it would be appropriate for the court to adopt the procedure outlined in paragraph 1.8 of the Practice Direction http://www.courtservice.gov.uk/cms/media/costs_pd_180504.pdf and adjourn any question of costs for an enquiry and report to be made by the appropriate officer, who should be directed as to the particular matters which the Judge wishes to be taken into account in making any order for costs against the defendant or defendants. Because section 18(3) of the 1985 Act requires that the amount of costs should be specified, the court cannot make an order for payment of costs to be assessed or payment for costs up to a specified limit. It is for the Judge, not for the an officer of the court, to make the final assessment of the figure for costs and the order for costs.