Under Section 18 of the Prosecution of Offences Act 1985 , the Access to Justice Act 1999 and the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and in regulations made under those Acts including the Costs in Criminal Cases (General) Regulations 1986, costs may be ordered to be paid by convicted defendants where the Court considers it reasonable and just to do so.

Section 45.5 of the Criminal Procedure Rules states the following in relation to prosecution costs orders:

“1.1.—(1) This rule applies where the court can order a defendant to pay the prosecutor’s costs if the defendant is—

(a)    convicted or found guilty;

(b)    dealt with in the Crown Court after committal for sentence there;

(c)    dealt with for breach of a sentence; or

(d)    in an extradition case—

                           (i)   ordered to be extradited, under Part 1 of the Extradition Act 2003,

                         (ii)   sent for extradition to the Secretary of State, under Part 2 of that Act, or

                       (iii)   unsuccessful on an appeal by the defendant to the High Court, or on an application by the defendant for permission to appeal from the High Court to the Supreme Court.”

In the case of R v Northallerton Magistrates’ Court, ex parte Dove [2000] 1 Cr App R (S) 136 (CA), the Court of Appeal provided the following guidance as to making an Order for Costs against a person convicted of an offence:

• The award of costs which the convicted offender is ordered to pay should be reasonable and should take the offender’s means into consideration.
• The amount to be paid by the offender should not amount to more than the amount of costs incurred reasonably by the prosecutor.
• Costs should be awarded to the prosecutor in circumstances where unreasonable conduct of the offender has led to avoidable costs; but a costs order should not be made against the defendant for simply attemting to defend themselves.
• Costs ordered in favour of the prosecutor should be proportionate to any fine ordered for the offence
• The costs order should be reduced in circumstances where the combined total of the costs sought by the prosecutor and the proposed fine exceeds a sum which could be reasonably ordered against the defendant.
• The offender is responsible for providing details of their financial position so that the Court can decide on a costs order based on their circumstances.

Under Section 45.4 of the Criminal procedure Rules, costs may be paid out of Central Funds in certain circumstances which include:

 ”  (i)   on an appeal, costs incurred in the court that made the decision under appeal, and

(ii)   at a retrial, costs incurred at the initial trial and on any appeal; but

(b)    do not include costs met by legal aid.”

Prosecution Costs: What can be Recovered?

In most cases, an application for costs can be made against a convicted offender and recoverable costs may include solicitor’s hourly rates, costs of investigation and prosecution, Court Fees, and any other disbursements which were reasonably incurred as a result of the case.

Legal costs of investigation will be covered by the police in cases where the prosecutor is the Crown Prosecution Service.

The Process of Recovering Legal Costs

Following receipt of a Costs Order from the Court, the prosecutor may be required to proceed through the process of detailed assessment in order to negotiate and recover a reasonable level of costs owed to them.

To initiate detailed assessment proceedings, the receiving party (prosecutor) will be required to draft a bill of costs and serve it upon the paying party (convicted offender) alongside a Notice of Commencement. The bill of costs should detail the costs which the receiving party seeks to recover from the paying party on an item-by-item basis to allow scrutiny; it is important to ensure these costs are reasonable and proportionate to the case or fine against the offender.

If the paying party do not agree with any of the costs listed within the bill, they should prepare and send their Points of Dispute within 21 days to negotiate the level of cots. The receiving party may further negotiate their position using Points of Reply and parties should attempt to reach an agreement before proceeding to a Detailed Assessment Hearing to avoid costs of detailed assessment escalating.

This will incur a further Court fee, and so the Receiving Party should obtain professional advice on the risks of proceeding to assessment based on any offer that is currently on the table to consider.

Litigation is always risky, and proceeding to a detailed assessment hearing can lead to a lesser financial sum being awarded to a Receiving Party and, if the Paying Party has made a better offer than is achieved on assessment, may result in the Receiving Party having to pay the detailed assessment costs of the Paying Party.

How can ARC Costs Assist?

We regularly assist Solicitors, Legal Executives and other legal professionals in a wide array of costs matters and disputes, including those associated with claims under the criminal justice system. As independent costs experts we can assist either Receiving or Paying parties in the recovery or in contesting of prosecution costs. 

If you are currently involved in a costs claim following the prosecution of an offender, one of our experts will be able to provide expert legal advice on costs law. Our team specialise in the production of costing instruments, such as bills of costs and points of dispute.

Please contact us on 01204 397302 or via email at info@arccosts.co.uk to find out more.

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