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?