Joseph Olaniregun [2019] EWCA Crim 1294
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R v Joseph Kayode Olaniregun [2019] EWCA Crim 1294 concerned an appeal against a costs order imposed at the Central Criminal Court following conviction for possessing a false identity document. The Court of Appeal, Criminal Division, composed of Lord Justice Coulson, Mrs Justice Cutts and His Honour Judge Michael Chambers QC, allowed the appeal and quashed the costs order.
Mr Olaniregun pleaded guilty before the magistrates’ court to one offence of possessing a false identity document contrary to section 6 of the Identity Documents Act 2010 and was committed to the Crown Court for sentence under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000. On 22 March 2019 at the Central Criminal Court he was sentenced to seven months’ imprisonment and ordered to pay prosecution costs of £500 within 28 days of his release from custody. The applicant sought an extension of time of 31 days to appeal, explaining that he had been in custody and without funds to contact his legal representatives. He did not challenge the custodial term but contended that the costs order was wrong in principle given his limited means and the absence of any inquiry into his ability to pay.
On 22 February 2019 police had raided an address in Dalston Lane, London, in relation to an unconnected matter. Mr Olaniregun was present. During the search officers discovered a wallet in a bedroom containing two driving licences, both bearing the applicant’s photograph but in different names with different dates of birth. Both were analysed and found to be fraudulent.
At the sentencing hearing the prosecution applied for costs of £500. In mitigation the Recorder was informed that the applicant was entirely without means. He had been released from his last custodial sentence in 2018 and then detained in a detention camp pending inquiry into his immigration status. The Home Office had attempted to deport him to Nigeria but the Nigerian authorities would not accept him. He had been released from detention only eight days before his arrest for the present offence. At the time of sentence he was effectively stateless, having lived in the United Kingdom for 35 years since arriving from Nigeria as a child, but with no means of earning a living and no entitlement to benefits. Counsel confirmed that this remained the position at the time of the appeal.
The applicant had previous convictions for possessing articles for use in fraud and making false representations. The Recorder accepted there was a question mark over his immigration status and gave full credit for his guilty plea at the first opportunity. She said there had to be a deterrent effect and his personal circumstances were not such that the sentence ought to be suspended, and she imposed seven months’ imprisonment. In relation to the costs application, the Recorder accepted that the applicant’s means were limited but said that even so she saw no reason why he should not pay the prosecution costs in due course. She ordered payment of £500 within 28 days of release from custody and suggested that if he was unable to pay in full within that period he should contact the magistrates’ court to ask the fines review officer to carry out a means assessment, which might afford him more time to pay.
Mr Lloyd on behalf of the applicant submitted that in light of the sentence and the defendant’s limited means the costs order should not have been made and was wrong in principle, relying on R v Robinson, Pomroy & Entwistle [2016] EWCA Crim 1329.
Mrs Justice Cutts, giving the judgment of the court, noted that it had long been the case that judges must consider a defendant’s means and ability to pay before making an order under section 18 of the Prosecution of Offences Act 1985 for payment of prosecution costs. Paragraph 3.4 of the Practice Direction (Costs in Criminal Proceedings) [2015] EWCA Crim 1568 states that an order should be made where the court is satisfied that a defendant has the means and ability to pay, and makes clear that the order is not intended to be in the nature of a penalty which can only be satisfied on a defendant’s release from prison. As the court held in Robinson, if a costs order is to be made there should be some inquiry as to the offender’s means and ability to pay prosecution costs at or before the moment he is sentenced to a term of imprisonment. That did not happen in this case. The court was satisfied that by not conducting such an inquiry and by assuming that the applicant would have sufficient funds to pay costs upon his release from custody, the Recorder had fallen into error and made an order that was wrong in principle. The court also held that leaving the fines review officer at the magistrates’ court to resolve the issue after the applicant’s release was not an appropriate way of dealing with the matter.
In short, the Court of Appeal granted the extension of time and leave to appeal, and quashed the costs order on the ground that the Recorder had failed to conduct any proper inquiry into the applicant’s means and ability to pay before making the order.