Neutral Citation Number: [2013] EWCA Crim 2023
Case No. 2013/04117/A5
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Tuesday 29 October 2013
B e f o r e:

LORD  JUSTICE  PITCHFORD

MR  JUSTICE  OPENSHAW

and

HIS  HONOUR  JUDGE  MORRIS  QC
(Sitting as a Judge of the Court of Appeal Criminal Division)

__________________

R E G I N A

- v -

ALAN  LEE  BROWN
__________________
Computer Aided Transcription by
Wordwave International Ltd (a Merrill Communications Company)
165 Fleet Street, London EC4
Telephone No: 020 7404 1400; Fax No 020 7404 1424
(Official Shorthand Writers to the Court)
__________________

Mr S Reid appeared on behalf of the Appellant
____________________
J U D G M E N T
LORD JUSTICE PITCHFORD:  I shall ask His Honour Judge Morris QC to give the judgment of the court.

HIS HONOUR JUDGE MORRIS:

1.  On 13 June 2013 in the Crown Court at Soutwark the appellant pleaded guilty to ten counts of making indecent photographs of a child.  On 11 July 2013 he was sentenced by His Honour Judge Robbins to a total of twelve months' imprisonment.  The judge also made a Sexual Offences Prevention order, and ordered the appellant to pay £450 towards the prosecution costs, to be paid within twelve months. The appellant now appeals against the order for costs with the leave of the single judge.  No appeal is brought against the sentences of imprisonment or the other order made by the judge. 

2.  The appellant is 33 years of age.  He has no relevant previous convictions.  At the time of the sentence hearing he had been unemployed and in receipt of benefits for about five years and had shown a total lack of interest in working.  

3.  Although prosecution counsel applied to the judge for an order for costs, defence counsel did not address the issue of costs in mitigation.  He accepted that a sentence of imprisonment was inevitable and therefore did not think such an order would be made. Nor prior to sentence was he invited by the judge to address the court on the appellant's likely means on his release from prison.

4.  When the judge made the order for costs, defence counsel, Mr Reid, indicated that he had not addressed the judge on this issue.  He said that the appellant would be released from prison after six months without means, to which the judge responded that that was why he had given him twelve months to pay.  

5.  Mr Reid has submitted on behalf of the appellant that it was wrong in principle to make the order for costs when the evidence was that the appellant did not have the means or ability to pay it, and there was no evidence to suggest that his financial position would improve within six months of his release.  

6.  Mr Reid relies on paragraph 3.4 of the Practice Direction (Costs in Criminal Proceedings) which reads so far as is material:

		"An order [for costs against a defendant] should be made where the court is satisfied that the defendant or appellant has the means and the ability to pay.  The order is not intended to be in the nature of a penalty which can only be satisfied on the defendant's release from prison.  ...."

He has also relied on R v Jenkins [2005] EWCA Crim 06, in which, in giving the judgment of the court, Poole J said:

		"14.  .... It is a well-established principle that financial penalties should be imposed and financial orders made only where there is some clear prospect of means available to satisfy them.  We well understand the learned trial judge's wish to ensure some contribution from the appellant towards the costs of his prosecution, but in our judgment there was no or no sufficiently clear prospect in the appellant's case of the necessary available means to satisfy the order.  For that reason, in our judgment, it was wrong that the order should have been made ...."

7. We agree with the submissions made by Mr Reid.  In our judgment it was wrong in principle to make the order for costs in the absence of evidence that the appellant would have the means to pay it within six months of his release from his sentence of imprisonment.  

8.  However, Mr Reid has very properly pointed out to the court that the judge ought to have ordered the payment of a victim surcharge of £100 , but failed to do so.  

9.  We therefore quash the order for costs in the sum of £450 and make an order for payment of a victim surcharge of £100.  To that extent alone this appeal is allowed.

	________________________