Overarching Sentencing Guideline

4. Prosecution Costs

 

Where an offender is convicted of an offence, the court has discretion to make such order as to costs as it considers just and reasonable[1].

Principles

  • An order for costs should never exceed the sum which, having regard to the offender’s means and any other financial order imposed, he or she is able to pay and which it is reasonable to order him or her to pay;
  • An order for costs should never exceed the sum which the prosecutor actually and reasonably incurred;
  • The purpose of the order is to compensate the prosecutor. Where the conduct of the defence has put the prosecutor to avoidable expense, the offender may be ordered to pay some or all of that sum to the prosecutor but the offender must not be punished for exercising the right to defend himself or herself;
  • The costs ordered to be paid should not be grossly disproportionate to any fine imposed for the offence. While there is no question of an arithmetical relationship, the question of costs should be viewed in the context of the maximum penalty considered to be appropriate for the seriousness of the offence;
  • If the combined total of the proposed fine and the costs sought by the prosecutor exceeds the sum which the offender could reasonably be ordered to pay, the fine should be reduced rather than the costs order;
  • It is for the offender to provide details of his or her financial position so as to enable the court to assess what he or she can reasonably afford to pay. If the offender fails to do so, the court is entitled to draw reasonable inferences as to means from all the circumstances of the case;
  • If the court proposes to make any financial order against the offender, it must give him or her fair opportunity to adduce any relevant financial information and to make appropriate submissions.
  • Where the prosecutor is the Crown, prosecution costs exclude the costs of the investigation, which are met by the police or other investigating body. The Attorney General has issued guidance to prosecutors on seeking orders for costs, including a scale of prosecution costs for standard hearings[2]. In private prosecution cases, where the costs of the investigation are 4incurred by the prosecutor, a costs award may cover the costs of investigation as well as prosecution.
  • Where the court wishes to impose costs in addition to a fine and/or compensation but the offender has insufficient resources to pay the total amount, the fine should remain at the appropriate level and the costs should be reduced.

 

 

[1] Section 647 Criminal Procedure and Evidence Ordinance 2014

[2] AGG18 - The Attorney General's Guidance on Prosecution Cost Orders

 

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4. Prosecution Costs
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