Richard Paul Baison [2019] EWCA Crim 1050

Richard Paul Baison [2019] EWCA Crim 1050 concerned an appeal to the Court of Appeal (Mr Justice Spencer and Sir Alan Wilkie) against a costs order made in confiscation proceedings, which was allowed.

Mr Baison and a co-accused, Peter Ogg, had been charged with offences under the Environmental Protection Act 1990 relating to the disposal of waste causing pollution of the River Dee at Saltney near Chester. The prosecution was brought by National Resources (Wales). The appellant stood trial with his co-accused at Caernarfon Crown Court in September 2015, but on day nine the jury was discharged from returning a verdict against him owing to a serious deterioration in his mental health. The trial proceeded against Mr Ogg, who was convicted. In September 2016 the appellant pleaded guilty and one month later was sentenced to eleven months’ imprisonment suspended for eighteen months and disqualified from acting as a company director for seven years. The question of costs was adjourned for determination at the conclusion of confiscation proceedings against both defendants.

Confiscation proceedings took place before His Honour Judge Huw Rees on 16 and 17 August 2017. The first day was devoted to Mr Ogg’s case. By agreement, his benefit was found to be £694,481.77 and his available assets exceeded that sum, so a confiscation order was made in that amount. Prosecuting counsel, Mr Stables, applied for costs totalling £116,377; half, £58,189, was sought against Mr Ogg. The judge was told that Mr Ogg had assets valued between four and seven million euros in the Republic of Ireland, and the judge ordered him to pay £58,189 in costs within three months. The appellant and his counsel, Mr Ackerley, were present during that hearing.

The following day the appellant’s case was resolved by agreement. The same benefit figure of £694,481.77 was agreed. However, the available amount in his case was only £433,500, the full extent of his realisable assets at the date of the order. The judge made a confiscation order for that sum, payable within three months, with four years’ imprisonment in default. Mr Stables then raised the question of costs, saying that half the costs came to £58,189 but recognising that the order reflected the full extent of the defendant’s assets. The judge asked Mr Ackerley what he wished to say about costs. Mr Ackerley replied after a pause that he was content for the order to be made. The judge then made a confiscation order and declared that “the order for costs in the same sum as yesterday will follow”, that is £58,189. Mr Ackerley later recalled that when the judge asked him about costs he had been busy taking instructions from the appellant on another issue and had not agreed that any costs would or could be paid.

Six months later, in February 2018, the appellant applied to vary the confiscation order under section 23 of the Proceeds of Crime Act 2002. Following a hearing on 16 April 2018, Judge Rees varied the confiscation order by consent to £306,096.81, nearly £130,000 less than the original figure. Nothing was said about the costs order, which remained unpaid. The appeal was lodged in October 2018, some fourteen months after the costs order had been made. The single judge granted an extension of time and leave to appeal. The grounds asserted that the appellant did not and never had the means to pay the costs order, his assets having gone to pay the confiscation order and his income consisting only of his state pension of £783 per month plus an occupational pension of £82 per month.

The court observed that the short point on appeal was that the costs order was not properly made because the appellant did not have the means to pay it within a reasonable time or at all. In R v Szrajber (1994) 15 Cr App R (S) 821 it had been held that a court which imposes a confiscation order equal to the whole of the defendant’s assets should not also make an order for prosecution costs. That case established the trite principle that a court should not order a defendant to pay costs unless satisfied that he has the means to pay within a reasonable period.

The prosecution accepted in its respondent’s notice, settled by Mr Stables, that the approach in Szrajber may be applicable, given that the entirety of the appellant’s available assets had gone in satisfaction of the confiscation order. The respondent’s notice suggested that the court might nonetheless assess what the appellant could or should pay by way of costs, but the court rejected that course. In R v Coleman [2016] EWCA Crim 1665, [2017] 4 WLR 29, Davis LJ held that where a costs order has been properly made in the Crown Court and a subsequent change in circumstances allegedly affects a defendant’s ability to pay, the proper forum under the statutory scheme is the magistrates’ court; the Court of Appeal is not equipped or appropriate for fact-finding concerning means and assets. Coleman could be distinguished, however, because there the order had been properly made in the first place, whereas here it had not.

The court held that it was most unfortunate that Judge Rees had not been alerted to Szrajber by either counsel. Had he been, the court was sure he would never have made the order without careful enquiry to establish that there were additional funds or income available to the appellant from which costs could be paid. The court was not confident that the appellant had given any informed consent to the order for costs; all circumstances pointed to the contrary and it was likely that Mr Ackerley and the judge had been at cross-purposes. Mr Stables had properly qualified any application for costs by saying he recognised the order reflected the full extent of the defendant’s assets, no doubt intending to convey that there was no basis for a costs order, though it would have been better had he explained the authority of Szrajber. Mr Ackerley, for his part, had not realised for some time that an order for costs had been made, having been distracted at the vital moment, and by the time he discovered the error it was outside the period for rectifying it under the slip rule. Against that background, the court understood how the judge had been inadvertently misled into believing he could properly make the order.

The court emphasised that before a judge makes an order for costs, particularly in conjunction with a confiscation order, the judge must be satisfied that the defendant has the means to pay those costs within a reasonable time. The mere fact that the judge is told the costs order is agreed is always relevant but does not absolve the court from ensuring the order can properly and lawfully be made. The court concluded that the appeal must succeed and quashed the order for costs. There was no basis on which the court could substitute a reduced order, as at the time the original order was made the appellant by definition did not have the means to pay it. In short, a costs order made in conjunction with a confiscation order that exhausted the appellant’s realisable assets was unlawful and could not stand.

Coleman [2016] EWCA Crim 1665
David James Richards [2014] EWCA Crim 1302
Hirani [2008] EWCA Crim 1463