Case No. CO/388/2009 
Neutral Citation Number: [2009] EWHC 886 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Date: Tuesday, 31 March 2009
 
B e f o r e: 

MR JUSTICE COLLINS 
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Between: 
THE QUEEN ON THE APPLICATION OF GIBSON 
Claimant

v 

ENVIRONMENT AGENCY 
Defendant 
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Mr M Phillips (instructed by Criminal Law Advocates) appeared on behalf of the Claimant 
Mr R Horeesorun (instructed by the Environment Agency) appeared on behalf of the Defendant 
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J U D G M E N T 

1.	MR JUSTICE COLLINS:  This is an appeal by way of case stated from a decision of the Justices in the County of Hertfordshire sitting in St Albans given on 10 June 2008.  The appeal is against the award of costs against both of the appellants in the sum of £4000 each.  In addition the Justices ordered each to pay £500 by way of compensation to the nextdoor neighbour of the property where they were engaged in unlawful deposit of waste.
2.	The charges they each faced involved allegations that between November 2005 and March 2007 in the case of Mr Gibson he caused controlled waste, and various types of waste are described, to be deposited without a licence, and in the case of Mr Jobson that he by consent, or connivance, or neglect, caused the commission by a company, that is Abbots Tool Hire Limited, of which he was a director and secretary, of depositing the waste on the relevant land.  There was also a second charge against him of failing to comply with a notice served under section 59 of the Environmental Protection Act 1990.
3.	Initially both the appellants pleaded "not guilty" and a five‑day trial was fixed commencing on 31 March 2008.  That is material because obviously the prosecutor had to prepare the case on the basis that there was going to be a trial, and not on the basis that there were going to be pleas of guilty.  In fact on 19 March the appellants pleaded guilty and the matter was adjourned for pre‑sentence reports, because the Justices took the view that the offences were serious enough to merit possible sentences other than fines.
4.	The reports were provided and in addition there was an application for costs supported by a schedule, which indicated a total sum of £8,747.75.  There was also an application for compensation because of the damage to the neighbour.
5.	The Justices decided that the offences were serious enough to impose a community order of 12 months with an unpaid work requirement of 200 hours.  In addition they made the costs orders, to which I have referred.  The reason why the matter has come to this court by way of case stated is that the law provides no right of appeal to the Crown Court in relation to an order for costs.  An appeal against sentence of course can be brought, but costs are not regarded as part of the sentence.  
6.	I am bound to say that it seems to me that that is something which ought to be reconsidered as it is obviously more sensible, and indeed more in the interests of those convicted, that they should be able to appeal to the Crown Court, because the powers of the Crown Court would be rather wider than the powers of this court.   This court is confined to considering whether there has been an error of law, and in the context of a case such as this, and indeed I would expect most cases relating to the imposition of costs, whether the Justices acted irrationally in fixing whatever sum they fixed.  However, there being no right of appeal to the Crown Court, I have to consider the case as it comes before me.
7.	In addition there were forms before the justices, which each of the appellants had filled out, containing a statement of their means.  In the case of Mr Jobson the form was completed in April and in the case of Mr Gibson in June 2008.
8.	The submission made before the Justices by Mr Phillips, who appeared on behalf of both of the appellants, was that any imposition of costs should, generally speaking, be such as would enable the defendant to pay within a year.  That, he suggested, was the approach that the law required.  He based that submission on a decision of this court back in 1986 in  R v Nottingham Justices, ex‑parte Fohmann [1987] 84 Cr App R 316.  I need do no more than refer to the abstract that is before me, which indicates that what the court said was that:  
"Only such amount as the defendant could pay off within a reasonable time, such as 12 months, should be ordered." 
In the particular case the amount imposed was, as it was put: 
"so grossly excessive that the court was bound to intervene."
9.	In fact, the limit of 12 months is not one which is to be applied generally.  The law requires that an order to pay the costs should never exceed the sum, which, having regard to the defendant's means and any other financial order imposed upon him, the defendant is able to pay and which it is reasonable to order him to pay.  There are a number of cases in the Court of Appeal (Criminal Division) dealing with fines and costs.  It is said in a number of them that as a general proposition the amount ordered, whether a fine or costs, or combination of a fine or costs, should be such as is payable within a period of up to about three years.  Maybe two years is more appropriate in many cases.
10.	One must bear in mind that a fine carries with it in the case of non‑payment of the whole, or any part, the possibility of a default sentence of imprisonment, whereas an order for costs carries no such default sentence.  That is a good reason for fines to be kept to a slightly smaller period of time than might apply in relation to costs.  However, the test, as I say, and the authorities make this clear, is that the time within which the costs can be paid must be reasonable.
11.	The Justices in the case, in relation to their approach to the amounts, say this, and I pick it up at paragraph 8e:  
"Mr Jobson's pre‑sentence report states that he is the Managing Director of Abbots Tool Hire Ltd, Falcon Demolitions Ltd, Leeway Trading Ltd and Company Secretary for Bio Greenway Fuels. He states that he is Managing Director of Massey Skip Hire Ltd from which he takes a salary of £150 a week.  He did not refer to having any debts.  In his statement of means he indicates that he takes a salary of £468 as a Director. [I think that is a monthly figure] Mr Jobson's statement of means indicates that he spends £297.52 per month on lottery/entertainment, drinking and smoking:  
8f. Mr Gibson's pre‑sentence report states that he earns his own wages and pays some contribution to living costs with his parents. Mr Gibson's statement of means indicates that he pays rent/mortgage or lodgings in the sum of £1100 per month, food of £600 per month, telephone of £150 per month and loan repayments of £200 per month."  
12.	Exhibited to the case are, among other things, the pre‑sentence reports.  Although the Justices do not specifically refer to this, it is to be noted that in Mr Gibson's pre‑sentence report the author assesses him as suitable for any financial penalty.  That does not suggest that anything he said to the author of that report implied that he would be unable to pay a reasonable sum if such a sum were imposed.  The Justices continue in the Case, having referred to those matters:  
"We accordingly found that both Mr Jobson and Mr Gibson had sufficient income to pay the costs/compensation within a reasonable period of 18 to 24 months.  The schedule of costs had been served on the applicants prior to the sentencing hearing.  In both cases no financial evidence was provided to support the information contained in the statement of means forms.  We found that as Mr Jobson was spending £297.52 per month on lottery/entertainment, drinking and smoking and he had sufficient disposable income to pay the costs and compensation ordered.  We were not entirely convinced by the content of Mr Gibson's financial means form having regard to the nature of his business and the facts of his case."
This was that over a substantial period of time he had been carrying on a business involving the deposit of waste without any licence, and for which they were entitled to assume that he was receiving a reasonable living.  He also was a person who they knew had numerous previous convictions.  That is referred to in the case. 
13.	So far as Mr Jobson is concerned, they obviously took, and as it seems to me, were entitled to take the view that he could cut down on his lottery, entertainment, drinking and smoking, and would thereby have sufficient funds available to pay the amount ordered within a reasonable time.  If one took £200 a month as available, as clearly would be reasonable, one sees that the amount is payable within the period specified by them.  
14.	So far as Mr Gibson is concerned, I have referred to what was in the pre‑sentence report.  The amounts put forward in his means form balance each other out, so that in round terms his outgoings balanced his receipts, or so it was said.  In my view the Justices were entitled to look, with some scepticism, upon the amounts that he had put forward.
15.	In R v Northallerton Magistrates' Court, ex‑parte Dove, a decision of 25 May 1999, which, as far as I am aware, is not reported, this court consisting of the then Lord Chief Justice, Lord Bingham, and Ognall J set out propositions which the authorities supported.  I have already referred to  (1) that an order to pay should never exceed the sum which the defendant was able to pay, and which it was reasonable to order him to pay; and (2) the order should never exceed the sum which the prosecutor has actually and reasonably incurred.  I will come back to that in a moment.  In proposition (5) the court said this:  
"It is for the defendant facing a financial penalty by way of fine or an order to pay costs to a prosecutor to disclose to magistrates such data relevant to his financial position as will enable justices to assess what he can reasonably afford to pay.  In the absence of such disclosure justices may draw reasonable inferences as to the defendant's means from evidence they have heard and from all the circumstances of the case.  I would draw attention to the proposition stated in the second volume of Dr Thomas' Current Sentencing Practice at paragraph J1‑2G where it is stated: 
   'It is the obligation of the offender to put before the sentencer any information about his means which he wishes the sentencer to take into account in determining the amount of the fine.  If he fails to do so, the sentencer is not obliged to make enquiries on his own initiative.'" 
 Proposition (6) in the same case says:  
"It is incumbent on any court which proposes to make any financial order against a defendant, whether by way of fine or costs, to give the defendant a fair opportunity to adduce any relevant financial information and make any appropriate submissions.  If the court has it in mind to make any unusual or unconventional order potentially adverse to a defendant, it should alert the defendant and his advisers to that possibility." 
16.	Mr Phillips submits that the Justices should have put to Mr Gibson, but necessarily through him because he represented him at the Magistrates' Court, their scepticism about the accuracy of the statement of means that he put forward.  However, the only material which they had was that coupled with the observations in the pre‑sentence report.  It seems to me, as I have said, that they were entitled on that to give effect to the scepticism which they clearly felt.  Mr Phillips also submitted, as the Justices record, that Mr Gibson was bankrupt.  He says that there was some support for that in that at least one of his previous convictions related to an offence when he was bankrupt.  That may be so, but the fact that someone has been adjudged bankrupt does not mean of itself that he is disabled from paying a sum by way of costs, if so ordered by a court.  It does not seem that anything much was gone into, so far as that aspect was concerned.
17.	Accordingly, in all the circumstances, I am far from persuaded that the decision of the Justices to award the sums that they awarded was irrational, because that is the test which is applicable in this court.  It is not suggested that there was any other error of law, subject to the 12‑month point which Mr Phillips raised, but which is, in my judgment, not a good point.
18.	That leaves the question as to whether the amount was itself reasonable in the sense that it reflected the costs reasonably incurred by the prosecutor.  There was a schedule of costs put before the court, which set out the sums incurred on various days between various dates in preparing for the prosecution and in investigating the offences, both of which amounts are in principle recoverable.  Mr Phillips has attacked some of the amounts claimed suggesting that they were excessive, or that there was no proper basis for claiming them.  
19.	The reality is that what he is seeking to do is to reargue his case before this court.  The Justices had the schedule, they heard his submissions on the amounts, and no doubt, in so far as necessary, they heard from Miss Horeesorun who was representing the prosecution there, as she has here.  It is quite impossible to say that the Justices were not entitled to accept the amounts claimed.  In fact they reduced the total by some £700 odd, bringing down the total to £8,000.  They did not, therefore, simply accept it at face value.  They did form a judgment upon it and decided that the sum they reached was an amount which was reasonable.
20.	The question they pose for this court is whether they were reasonably entitled to conclude that the applicants were able, and ought properly, to be ordered to pay the costs suggested by the prosecution.  The answer to that question is "yes".  This appeal is dismissed.
21.	MISS HOREESORUN:  My Lord, there is an application for costs as of yesterday.  The sub‑total was £750 for today.  I am going to be reasonable and ask that to be rounded‑up to £1,250 for today. 
22.	MR JUSTICE COLLINS:  Mr Phillips, are you legally aided? 
23.	MR PHILLIPS:  Yes, I am.
24.	MR JUSTICE COLLINS:  In which case I can make an order for costs.  It will be the usual: not to be enforced without leave.
25.	MR PHILLIPS:  I am not familiar with that kind of order.  My understanding is that if an order is made then it can be enforced.
26.	MR JUSTICE COLLINS:  This is a criminal case.  I did not bring Archbold with me.
27.	MR PHILLIPS:  My understanding is that if it were a criminal matter it would be enforced in the Magistrates' Court, but this is actually a civil case.  
28.	MR JUSTICE COLLINS:  No, it is a criminal case.
29.	MR PHILLIPS:  It is an appeal from a criminal matter, but we say it is a civil case.
30.	MR JUSTICE COLLINS:  No, it is not, it is a criminal case.  The appeal from me would be to the House of Lords.  It is clearly a criminal cause or matter.  
31.	I think you are right, and I am wrong, but a sum of £1,000 is not unreasonable for the costs of today.  I see no reason why it should not be £500 each.
32.	MR PHILLIPS:  I do have a couple of observations.  The first is this, it would never have been the intention of the defendants in this matter to have come here if they wished to appeal.  Obviously the cheapest, quickest and easier route would be the Crown Court.
33.	MR JUSTICE COLLINS:  I said it is a pity they cannot.
34.	MR PHILLIPS:  The usual application there would be in the region of a couple of £100.  I have to accept that if more work is involved with an application such as this‑‑ 
35.	MR JUSTICE COLLINS:  Costs of £1,000, I am afraid, in this court is very low.
36.	MR PHILLIPS:  The other thing is this, that Mr Gibson is presently in prison and is not due to be released.  He received a sentence of 32 months.
37.	MR JUSTICE COLLINS:  For what?
38.	MR PHILLIPS:  For similar matters.
39.	MR JUSTICE COLLINS:  He kept going.
40.	MR PHILLIPS:  He was convicted of those matters after this offence.  It was, I think, pertained to matters committed a number of years before.  Those matters trundled along for a number of years.  In any event, he received 32 months of which he will serve half, which started in November 2008.
41.	MR JUSTICE COLLINS:  There is no way in which he can pay anything now, unless he has means.  I see the point.
42.	MR PHILLIPS:  I suggest that it would only be right to reduce it because he is in prison as well.
43.	MR JUSTICE COLLINS:  Mr Jobson is not.  He, as far as you know, is not in prison? 
44.	MR PHILLIPS:  I have not had contact with Mr Jobson since the end of this case.  Mr Gibson was the man who instructed me concerning the matter.
45.	MR JUSTICE COLLINS:  What about Mr Jobson?  He has been put forward as an appellant.
46.	MR PHILLIPS:  Yes, indeed. I always represented Mr Gibson.  The application for legal aid was for Mr Gibson and the prison visit was for Mr Gibson.  I have not received any contact from him.
47.	MR JUSTICE COLLINS:  In that case he should not have been an appellant, should he? 
48.	MR PHILLIPS:  It was framed that way by the Justices.
49.	MR JUSTICE COLLINS:  If you tell me that Mr Jobson never instructed you to appeal, then, with great respect, you should not have been putting forward any argument on his behalf.  I assumed, as I imagine Ms Horeesorun has, they were both appellants.
50.	MR PHILLIPS:  It was a difficult situation.  Mr Gibson was the one who paid me some money and I made a few comments on behalf of Mr Jobson, as it were.
51.	MR JUSTICE COLLINS:  He paid you money, did he? 
52.	MR PHILLIPS:  Mr Jobson never paid me any money.  
53.	MR JUSTICE COLLINS:  No, but Mr Gibson did. It shows he had some floating around somewhere. 
54.	MR PHILLIPS:  It was about £1,000 in total.  The amount of work that was undertaken was relatively modest.
55.	MR JUSTICE COLLINS:  I am not suggesting that you overcharged him, what I am suggesting is that he had access to cash which he had not declared.  It looks as if the justices' scepticism was thoroughly well‑founded.  He is a thoroughly dishonest character.
56.	MR PHILLIPS:  I cannot comment.
57.	MR JUSTICE COLLINS:  In that case it would obviously be wrong for me to order any costs against Mr Jobson and so that is canceled.  No costs against him.
58.	MR PHILLIPS:  The other observation I make is that any fine or costs order can be lodged to the Magistrates' Court while somebody is in prison, because when somebody is in prison it is the responsibility of the Magistrates' Court to enforce proceedings‑‑ 
59.	MR JUSTICE COLLINS:  They may decide not to enforce.
60.	MR PHILLIPS:  They may decide not to enforce, or decide to wipe them off altogether.
61.	MR JUSTICE COLLINS:  You are going to have to make an application to the magistrates, I suspect, Mr Gibson.  Whether you receive your money from your client is another matter.  I think what I will do is I will make an order that Mr Gibson pays £1,000 costs.  That will come in with the question of enforcement.  I see no reason why I should not make the order as it follows the event.  As I say, enforcement will be through the magistrates and I think it will be sensible for Mr Gibson to go to the magistrates, now that the appeal has been dismissed, and see what he can do about persuading them to remit whole or part.  The compensation takes priority, does it not? 
62.	MISS HOREESORUN:  In the event, in the sentencing of Mr Gibson he has a further £20,000 costs order to pay as well.
63.	MR JUSTICE COLLINS:  Does he? 
64.	MISS HOREESORUN:  Yes, he does.  That was in addition to the 32 months.
65.	MR JUSTICE COLLINS:  The court that sentenced him must have thought he had some money stashed away somewhere.  
66.	MISS HOREESORUN:  He was not doing it for charity, I remember.
67.	MR JUSTICE COLLINS:  That I am sure is right. In that case I will make the order, as I said, but enforcement will be a matter for the magistrates.