England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		2nd November 2017

Thursday 2^nd November 2017

LORD JUSTICE SIMON: I shall ask Mr Justice Lewis to give the judgment of the court.

MR JUSTICE LEWIS:

1. This is an appeal by Jomana Saleh Rahal with the leave of the single judge against an order that she pay the prosecution costs following her conviction for one offence of obtaining services by deception in the Crown Court at Southwark on 29^th January 2016. The appellant was ordered to pay costs in the sum of £23,933.50 to the London Borough of Southwark who brought the prosecution.
2. The fact can be stated shorty. The appellant was charged with one offence of obtaining a tenancy by deception. She falsely represented that she had a child, when she did not, and she obtained a tenancy of housing to which she was not entitled. She pleaded not guilty. She was jointly indicted with a number of other individuals who faced similar charges. Following an 18-day trial, the appellant was found guilty. At least two of the other defendants were found guilty by the jury, and a fourth pleaded guilty.
3. In sentencing, the judge noted that this was a serious offence. Public housing was scarce and there were people in genuine need. As a result of the deception, the appellant was able to obtain accommodation, to which she was not entitled, at the expense of others who were entitled. The appellant committed the offence because she did not like sharing a house with others and wanted a place of her own. She pretended that she had a child. When she was finally caught out, she pretended that the fictitious child was dead.
4. She was sentenced to five months' imprisonment. There is no appeal against that sentence.
5. On 1^st June 2016 there was a hearing which dealt with claims for confiscation orders against the defendants. In relation to the appellant, the court made a confiscation order in the sum of £29,731 and ordered that this be paid by way of compensation to the London Borough of Southwark.
6. The Borough also applied for costs in relation to four of the defendants, including the appellant. The Borough produced a costs schedule for each of the four defendants. That showed the costs of the solicitor, broken down into various headings, for each individual case. The amounts claimed differed as between the four individuals. The schedule also included counsels' costs. In each case there were two counsel and their costs for each case were shown to be £11,250 and £6,750 respectively, amounting to £18,000. The judge considered that it was reasonable and fair for the defendants to pay costs. However, three of them had no means to pay, and so the judge declined to make an order against them.
7. The position in relation to the appellant was different. She did have the means to pay a costs order. We understand that she had a sum of £77,773.22 in bank accounts. The judge considered that it was not unfair or disproportionate to order her to pay the prosecution costs. He referred to the fact, as he did with the three against whom he did not make any order, that the appellant had, in effect, brought the trial upon herself by her conduct in breaking the law. She had sought to brazen it out by pleading not guilty but the jury had not been deceived and she had been convicted. She alone of the defendants had the means to pay an order for costs, and so she alone was ordered to pay costs in the sum of £23,933.50.
8. The question of the award of costs is dealt with by section 18(1)(c) of the Prosecution of Offences Act 1985, which so far as material is in the following terms:

"(1) Where –

…

(c) 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."

9. Costs are further dealt with by Part 45 of the Criminal Procedure Rules 2015. The relevant parts of Rule 45.2 read as follows:

"(1) The court must not make an order about costs unless each party and any other person directly affected –

(a) is present; or

(b) has had an opportunity –

(i) to attend, or

(ii) to make representations.

…

(3) In deciding what order, if any, to make about costs, the court must have regard to all the circumstances, including –

(a) the conduct of all the parties; and

(b) any costs order already made.

…

(6) If the court makes an order for the payment of costs –

(a) the general rule is that it must be for an amount that is sufficient reasonably to compensate the recipient for costs –

(i) actually, reasonably and properly incurred, and

(ii) reasonable in amount; …

…

(7) On an assessment of the amount of costs, relevant factors include –

(a) the conduct of all the parties;

(b) the particular complexity of the matter or the difficulty or novelty of the questions raised;

(c) the skill, effort, specialised knowledge and responsibility involved;

(d) the time spent on the case;

(e) the place where and the circumstances in which work or any part of it was done; and

(f) any directions or observations by the court that made the cost order.

…"

10. The principles governing the exercise of the discretion have also been considered by this court. In summary, for present purposes, the material principles are as follows:

(1) The order to pay costs should not exceed the sum which it is reasonable to expect the defendant to be able to pay, having regard to his means and any other financial order imposed upon him.

(2) The purpose of the costs order is to compensate the prosecution for the costs it has incurred, not to penalise the defendant. In particular, it would be wrong in principle to increase the amount payable simply because the defendant has pleaded not guilty and there has had to be a trial. But, inevitably, if a person does plead not guilty and the matter is determined after a trial in the Crown Court, the costs are likely to be higher: see the observations in R v Hayden (1975) 60 Cr App R 304.

(3) The order should not exceed the costs that the prosecution have actually incurred. Those costs may include costs incurred in relation to the court hearing and the costs of the investigation: see Associated Octel Limited [1997] 1 Cr App R(S) 435.

(4) Where there is more than one defendant, a defendant is generally to be held liable only for the proportion of the costs attributable to the prosecution against him. In that regard the court should consider what would be the amount of costs if the defendant had been tried alone: see R(Gray) v Aylesbury Crown Court [2014] 1 WLR 818.

11. In the present case Mr Bhasin, on behalf of the appellant, makes the following submissions. First, it is said that the judge erred when finding that it was just and reasonable for the appellant to pay the prosecution costs in the sum of £23,933.50. In our judgment, there was no error in the judge considering that it was just and reasonable for an order for costs to be made. This was a case where the appellant had obtained by deception housing to which she was not entitled. The housing authority who was responsible for the public housing stock within the Borough considered it appropriate to bring criminal proceedings. As a result, there was a trial and the appellant was convicted and sentenced. The judge was entitled to find that an award of costs for the prosecution was just and reasonable in those circumstances.
12. Secondly, it is said that the judge erred by focusing on the appellant's means, not on whether it was reasonable to make an order. There was no such error on the part of the judge. He had to consider whether it was reasonable to make an order. As part of that enquiry he had to consider whether the appellant – and indeed the other defendants – had the means to pay. It would not be reasonable to make a costs order which the appellant could not pay.
13. Thirdly, Mr Bhasin makes three specific criticisms as to why the costs were manifestly excessive. He submits that the court should have considered what costs the prosecution would have incurred if the appellant had been tried alone. As we have indicated, where two or more defendants are tried together, the court should try to ascertain what costs are incurred in relation to each defendant so that a defendant is not put in the position of paying the costs attributable to the prosecution of another. Here, however, the costs claimed are the costs attributable to each defendant. Although the appellant's case was joined with others, the costs actually claimed have been calculated as the costs attributable to the prosecution of the appellant. We therefore see no basis for criticising the costs award on this ground.
14. Next, it is said that the court should have considered what costs would have been allowed on the scale of costs used by the Crown Prosecution Service when they bring proceedings. We do not consider that the judge is required to do that. The prosecution here was brought by the local housing authority. They have power to bring such proceedings under section 222 of the Local Government Act 1972. They have a direct interest in doing so, as they wish to ensure the proper allocation of housing which is a scarce resource. If the costs incurred are ones reasonably incurred by them, they are in principle recoverable.
15. Finally, it is said that the judge erred in considering that it was reasonable to award costs for two counsel. We see force in that submission. The position here is that the appellant had been charged with an offence of obtaining services by deception, and alternative offences of using a false instrument. The respondent contends that it would have been necessary to explain the benefit system to the jury and the case was "paper heavy". Notwithstanding those matters, it does seem to us that it would not be reasonable to order the appellant to pay the costs of two counsel. It may well be that the presence of a second counsel was of assistance to the prosecution. Ultimately, however, we do not consider that it is just and reasonable for the appellant to have to pay the costs of that, bearing in mind that this was ultimately a relatively straightforward offence of obtaining services by deception.
16. For that reason we consider that the judge erred on the facts in this case ordering the appellant to pay the sum of £6,750 as the cost of instructing a second counsel. To that extent only the appeal succeeds.
17. We quash the order that the appellant pay the sum of £23,933.50 and substitute an order that the appellant pay the respondent the sum of £17,183.50.