The deterrent effect of prosecution costs recovery orders

Whether a claim for costs by prosecutors is reasonable was raised in curious circumstances in the recent decision by the High Court in R (Middleton) v Cambridge Magistrates Court [2012] EWHC 2122 (Admin). The issue arose from an action brought by the Conservators of the River Cam following a dispute with a house boat owner named Middleton, which culminated in the magistrates court fining Mr Middleton £300 but awarding the conservators costs of just under £6,900.

This award followed a series of six alleged byelaw offences over as many months, including two for which Mr Middleton had already received conditional discharges.

In the circumstances, one might have expected Mr Middleton to be philosophical about the costs, perhaps asking for time to pay. After all, he called the tune and the piper duly presented his bill.

But Mr Middleton is made of sterner stuff. Evidently outraged about the costs award, he sought judicial review, apparently with the support of legal aid ? his only income derives from state benefits, although his house boat was valued at £150,000.

Grossly disproportionate

The High Court duly quashed the costs order and remitted the matter back to the magistrates, applying clear direction from the Divisional Court that 'costs should not ordinarily be greatly at variance with any fine imposed'.

The court also cited Lord Bingham's judgment in R v Northallerton Magistrates Court [2001] Cr App R (S) 136, in which he said costs 'should never exceed what the defendant is able to pay and which it is reasonable to order the defendant to pay' and should not be 'grossly disproportionate to the fine'.

So far, so sensible ? perhaps.

It seems pointless to try to exact financial penalties from defendants who cannot be expected to pay them, and Mr Middleton is clearly in that category from the perspective of income, if not assets.

But where does that leave hard-pressed and underfunded public authorities who are charged with enforcing the law against repeat offenders?

Surely the threat of costs is a vital part of the armoury of deterrence where fines prescribed by statute are often minimal?

The principle of costs recovery is a well established and understood mechanism in civil law to inhibit defendants who might otherwise try to 'game' the litigation process: if they stand to pay a higher bill if their conduct inflates their opponent's costs, they will be far keener to cooperate, which must be in the interests of justice.

It is surely reasonable for magistrates to be allowed to examine the manner in which a defendant has conducted himself in the context of the nature of the case against him, as well as balancing the amount of the fine against the costs before assessing the latter?

Civil law concepts

After all, it may be more important for a taxi driver to pull out all the stops to defend a speeding offence because it impacts directly on his livelihood than for, say, a professional footballer, but if the latter generates huge prosecution costs trying to avoid a fine, just because he can, surely he should be ordered to pay them in full, even though the penalty may be as small as £60?

The transcript of the Middleton judgment records that it was submitted that the summons had been before the court on a number of occasions, that Mr Middleton had not indicated a guilty plea at any of those stages and that the matter had therefore had to be prepared for trial in circumstances where all possible defences needed to be covered.

These are matters that the magistrates will doubtless wish to take into account but, if they apply Northallerton strictly, they may not feel able to award the conservators the costs they believe they deserve. This may be the type of case in which civil, rather than criminal concepts of proportionality could usefully be applied in future.

The new civil rule on costs (CPR 44.4 (5)), which will apply from April 2013, provides that costs will be proportionate if they bear a reasonable relation to the sums in issue, but other factors like the value of any non-monetary relief, the complexity of the litigation, any additional work generated by the conduct of the paying party and any wider factors involved will also be taken into account.

Of course, it would be inappropriate to comment on Mr Middleton's case pending the magistrates' decision, but it is clear that in similar cases the CPR44.4 factors might easily justify a costs order which (because of the modest penalties permitted by statute) might be many magnitudes higher than the fine '“ with a consequently much higher deterrent effect.