Balshaw v Crown Prosecution Service; R v Andrew Robert Balshaw
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moses |
| Judgment Date | 18 March 2009 |
| Neutral Citation | [2009] EWCA Crim 470 |
| Docket Number | Case No: 2008/5407/A5 |
| Court | Court of Appeal (Criminal Division) |
| Date | 18 March 2009 |
[2009] EWCA Crim 470
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT READING
His Honour Judge Wood
Royal Courts of Justice
Strand, London WC2A 2LL
Lord Justice Moses
Mrs Justice Dobbs and
Mr Justice Griffith Williams
Case No: 2008/5407/A5
Mr C Miskin QC (instructed by Harringtons) for the Appellant
Mr N P Moore (instructed by the Berkshire Crown Prosecution Service) for the Respondent
Hearing date: 23 rd January 2009
Lord Justice Moses :
On 4 September 2008 the Crown Court at Reading ordered the appellant to pay prosecution costs of £9,000 and an additional £13,600. The additional £13,600 represented the costs of a report prepared by a director of KPMG LLP for the court.
The order that the appellant pay those costs appears, at first blush, to be unsurprising, since the appellant had been convicted for conspiracy to supply to a co–accused tools and accessories at minimal cost in exchange for cash payments made directly to the appellant. His Honour Judge Wood ruled that the value of the criminal benefit obtained by the appellant was £440,000 and that his realisable assets were in the region of £900,000.
However, the accountancy report, prepared for the court on 1 June 2007, was commissioned by the Economic Crime Unit of the Thames Valley Police after the defendants had been charged. The fact that the report was commissioned by Thames Valley Police and not by the Crown Prosecution Service lies at the heart of this appeal. The appellant contends that since the report was commissioned by the police and not by the CPS the court either had no jurisdiction or was wrong to order that the applicant pay the costs of that report. During the course of the oral hearing we gave leave to the appellant to advance these contentions.
The appeal turns on the question whether the order that the appellant pay the costs of £13,600 for the accountancy report to the CPS was “just and reasonable”. S.18 of the Prosecution of Offences Act 1985 (the 1985 Act) provides that:-
“(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”
Thus, the only inhibition on the award of the costs in issue in this appeal is whether it was just and reasonable to order that the costs of the accountancy report be paid to the CPS when those costs had been incurred by the Thames Valley Police.
The impact of the statutory requirement that costs be paid to the prosecutor underlies past contentions that the costs of prosecution are to be distinguished from the costs of investigation. In R v Burt ex parte Presburg [1960] 2 WLR the court was considering the statutory predecessor to the 1985 Act. S.6(1) of the Costs in Criminal Cases Act 1952 conferred power on a Magistrates' Court to make an order as to costs:-
“to the prosecutor…as it thinks just and reasonable.”
Prosecutor was defined as including a person at whose instance the prosecution had been instituted or under whose conduct the prosecution was carried on (see s.17(1)). In that case a prosecution for failing to comply with a traffic sign was brought by the Metropolitan Police which claimed the costs of the attendance of a police constable at court to give evidence. The Divisional Court expanded upon the reasons given by the Bow Street Magistrate, Mr Clive Burt QC, who had informed the applicant's solicitor that the reason why he had ordered costs was “because I say so”. The court held that costs should not be limited to additional costs such as disbursements and expenses but could include the costs of a police constable whose salary was paid by the prosecutor but who had incurred no such additional or “marginal” costs.
The proposition that the costs of the prosecution may include the costs of investigation where the prosecuting body carried out the investigation was doubted some 27 years later in this court in R v Seymour [1987] 9 Cr App R(S) 395). In order to understand the origin of that doubt it is necessary to look back to the decision in R v Maher [1983] 1 QB 784 which restricted the DPP's costs to those costs of the prosecution which would be payable out of central funds. Such costs were limited to those which were sufficient to compensate the prosecutor for expenses properly incurred by him in carrying on the proceedings and to compensate any witness (costs out of central funds identified in s.3(3)) of the Costs in Criminal Cases Act 1973). But it is important to note that the section which governed the order made after what was at that time the longest criminal trial in England, was s.4 of the Costs in Criminal Cases Act 1973 which limited the power to order costs to those:-
“incurred in or about the prosecution and conviction including any proceedings before the examining justices.”
The court, accordingly, refused to allow costs of overtime payments or travelling expenses of officers engaged in the investigation and for security at Lancaster Castle and the Judges' lodgings.
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