Case No: 201003898 C2
Neutral Citation Number: [2011] EWCA Crim 870
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 01/04/2011 
Before:

LORD JUSTICE ELIAS
MR JUSTICE MACKAY
and
MR JUSTICE HICKINBOTTOM

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Between :

	REGINA		
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	MOHAMMED RAKIB		

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Alison  Scott-Jones  on behalf of the Crown
Stephen Leake on behalf of the Defendant

Hearing date: 25 March 2011

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Judgment
Mr Justice Hickinbottom : 
The Facts
1.	On a morning in late September or early October 2008, at about 8 o’clock, the complainant B, then aged 17 years, was walking to college along Broadway West, Walsall, when she heard music coming from an area of bushes by the footpath.  Her attention drawn by the music, she turned and saw a man standing there, in the bushes, with his trousers and boxer shorts round his ankles.  It was daylight, and she had an unobstructed view of him.  She saw him masturbating his naked erect penis with his left hand.  She turned away, and continued to walk to college.  When she got home later that day, she told her mother what she had seen, but did not contact the police at that stage.
2.	However, on 3 November 2008, at about the same time of day, she was again walking to college following the same route.  She again heard music, and turned to see the same man, standing in the same location as before.  She looked him in the face, before walking off.  On this second occasion, she did not look towards his genitals: but, from the motion of his arm, which she did see, she said he was “doing the same thing”.  She could see his left arm making motions as if he were masturbating.  
3.	Following the second incident, she made a complaint to the police, giving a description of the man and his clothing, which had been the same on both occasions.  She assisted the police in compiling an e-fit image of the man, and the appellant Mohammed Rakib was arrested on 24 November 2008.  The following day, the complainant attended a police identification procedure, and she identified the appellant as the man who had exposed himself to her.  The day after that (26 November 2008), he appeared before the Walsall Magistrates, and was sent to the Crown Court for trial on two charges: one emanating from the first alleged exposure to B, and the second an unrelated charge of serious sexual assault of someone else.  In relation to the first charge, the Crown relied upon evidence of the second alleged incident involving B in November 2008, but no separate charge was preferred in relation to that incident at that stage.  No doubt due to the seriousness of the sexual assault charge, he was remanded in custody in relation to both charges until they came to be tried on 18 May 2009, a total of 173 days on remand. 
4.	However, on the first day of trial, the judge considered that the counts were misjoined, and that indictment was stayed.  A new indictment was immediately preferred, restricted to the sexual assault.  The appellant was tried on that, and acquitted.
5.	A further indictment was also preferred, with two counts, in respect of both of which B was the complainant, the counts covering the September/October exposure and the November exposure respectively.  At a trial in the Crown Court at Wolverhampton (His Honour Judge Walsh and jury) on 14 June 2010, the appellant was convicted of both counts that, contrary to section 66(1) of the Sexual Offences Act 2003, he exposed his genitals intending that someone would see them and be caused alarm or distress.  
6.	On 6 July 2010, Judge Walsh sentenced him in respect of each conviction to a community order with a three year supervision requirement and a programme requirement to attend sex offending assessment, psychological testing and treatment, with the appropriate notification requirements.  He was also required to pay prosecution costs in the sum of £2,800 at £500 per month.  
7.	Now, with the leave of the single judge, he appeals against conviction, sentence and the costs order.
The Appeal against Conviction
8.	In relation to conviction, the two grounds of appeal presented to us on behalf of the appellant by Mr Leake were admirably focused.
9.	First, he submitted that the judge erred by ruling against his submission at the close of the prosecution case that the count relating to the second incident ought to be withdrawn from the jury, because there was no safe basis on which the jury could conclude that there was an exposure of the appellant’s penis on that occasion.  The offence of course requires such exposure.  The complainant, B, did not suggest that she actually saw his penis on the second occasion.  In those circumstances, Mr Leake submitted that the jury could not safely conclude that his penis was exposed, merely because the complainant had said that his left hand was moving in the same way as the first occasion, as if he were masturbating.  The appellant could, for example, he submitted, have been masturbating under his clothing without exposing his private parts, or may have simply been engaged in some preparatory acts without any exposure.  Given that the hand movements which the complainant said she saw would be consistent with those possibilities, the jury could not safely conclude that the appellant had exposed himself on the second occasion: and the second count ought to have been withdrawn from the jury.
10.	In his second ground, Mr Leake submitted that the judge was wrong to direct the jury to the effect that they were entitled to take into account that there had been exposure of the penis during the first incident when deciding whether they were sure that there had been exposure during the second.  In substance, as Mr Leake accepted, this was really a recasting of ground one.
11.	The correct approach to a submission of no case to answer is well-settled: the test is whether a reasonable jury, properly directed and after considering all the evidence with appropriate care and scrutiny, could properly convict.  A case should not be withdrawn from a jury simply because another view of the evidence, consistent with innocence, might possibly be taken.  It is for the jury to consider possible legitimate interpretations of the evidence and decide whether, on the evidence, they are satisfied so they are sure that all the elements of the relevant offence have been made good. 
12.	In this case, there was no serious suggestion that B was mistaken in saying that the man she saw on each of the two occasions was the same man: the appellant simply denied that that man was he.  He denied presence on the occasion of either offence, and asserted that the complainant was mistaken in her identification of him as the offender.  By their verdicts, the jury, properly directed as to identification, were clearly satisfied that the man in the bushes, on each occasion, was the appellant: and no challenge to the safety of the verdicts is made on that score.  Indeed, the appellant now accepts that he was indeed that man.
13.	The other primary issue for the jury to consider was whether they were sure that, on the second occasion, the appellant exposed himself, as the offence required.  Particularly given his case of non-presence, that issue relied exclusively upon the evidence of the complainant B.  The jury found the appellant guilty on count 1: and it is implicit in that verdict that they were satisfied that, on that first occasion, the appellant was masturbating his exposed penis, with music playing, with the intent that someone should be attracted to see him, and with the intent that alarm and/or distress should be caused thereby.  That was patently relevant to the issue as to whether he was exposing himself on the second occasion.  
14.	With respect to Mr Leake, we do not consider this to be a Chopra case, in which the prosecution rely upon the evidence of various matters mutually to support each other (Chopra [2006] EWCA Crim 2133; [2007] 1 Cr App R 16).  This was a simpler case.  If the jury were satisfied that the appellant exposed himself and committed the offence in count 1, then, clearly, that was a matter they could take into account when they considered whether they were satisfied that he exposed himself on the second occasion.  The prosecution case was that, if the jury were satisfied on count 1, the circumstances and modus operandi of count 2 were so very similar – location, music to attract attention and hand movement – that they could be sure that he was doing the same as he was on the first occasion, including the exposure.  
15.	Whilst positive findings against the appellant as to exposure on count 1 may well have fallen within the definition of “bad character” within section 98 of the Criminal Justice Act 2003, this was not a case in which any deep consideration or complex direction was necessary or indeed appropriate.  Such evidence was patently admissible under section 101(1)(d): and it was for the judge to ensure that it was dealt with properly, fairly and economically.  
16.	Therefore, with regard to the first ground, it was, in our view, quite clearly open to the jury properly directed, on the basis of the similarity of arm movements that the complainant saw, in the similar circumstances in which she saw them, to be satisfied that, on the second occasion, the appellant was masturbating his naked penis.  Simply because the circumstantial evidence was such that there may possibly have been another, innocent interpretation does not mean that the matter had to be withdrawn from the jury; and in our judgment it would have been plainly inappropriate for the judge to have withdrawn it.  Whether the appellant was exposing himself was especially a matter for the jury to consider and decide, on all of the evidence.  
17.	Turning to the second ground, in that task, the jury were, in our judgment, properly directed.  The judge made the burden and standard of proof clear, and was clear that the jury could not convict of count 2 unless they were sure that the appellant was exposing his penis at the relevant time (see, e.g. transcript page 4H-5A, and page 5D-E).  
18.	The jury were obviously sensitive to the fact that this issue was central to their consideration of count 2, and sent a note to the judge after they had retired, in the following terms:
“Could you please clarify the legal position and implications for count 2, using the offence of exposure, intent to expose genitals?  So do we need to give the benefit of the doubt and come to the conclusion of not guilty for count 2 due to [B] not clearly stating that she saw his genitals exposed?”. 
19.	With the jury out, there was the following exchange between the judge and Mr Leake (transcript page 18B-G):
“Judge Walsh: It is implicit in the [jury] note that they are satisfied so that they are sure about the accuracy of identification.  It seems to me that they must be directed that they are satisfied so that they are sure that there was exposure of the genitals.  The fact that [B] did not see the genitals is a factor that they must bear in mind and consider and the question for them to consider is whether they are satisfied so that they are sure that the hand motions that they say they saw him perform were hand motions at a time when his genitals were exposed.
It seems to me that they are entitled also, are they not, to take into account what view they form about count 1.
Mr Leake: Yes.  Well, perhaps Your Honour would remind them of course of it she only saw him – and her evidence in relation to that was that she looked into his eyes for one or two seconds. In relation to count 2 – 
Judge Walsh: Yes, but the point I am making is this; that if they were satisfied so that they were sure in respect of count 1, then his conduct, found by them to be conduct which he committed, is something that they can take into account in determining what he was doing on the second occasion.
Mr Leake: Yes.
Judge Walsh: But they must be satisfied so that they are sure that the genitals were exposed.
Mr Leake: Yes…. ”
20.	In that passage, Mr Leake appears to have been agreeing with the judge’s propositions and approach.  Before us, he said he did not intend to assent, but was merely expressing understanding following the earlier rejection of the submission of no case to answer.  Be that as it may, we consider the judge’s approach to how the jury could and should take into account any exposure they found in relation to count 1, when considering exposure in count 2, was unimpeachible.  
21.	The judge had already given a full direction in relation to the similarities between the two episodes, and how the jury could take into account findings in relation to the second occasion when they were considering the second incident (transcript page 4C and following).  Following the discussion with Counsel to which we have referred, he gave the following further direction to the jury, in response to their query (transcript page 19F-20G): 
“… I am going to remind you of what the position is so far as count 2 is concerned.   In order to convict of count 2 you would have to be satisfied that there was intentional exposure by the defendant of his genitals intending that someone, in this case the young complainant, would see them and be caused alarm or distress.  So you would have to be satisfied, before you could convict of count 2, that there was an intentional and deliberate exposure of the genitals.”
He then reminded the jury of the relevant evidence of B.  He continued:
“But the point was made by Mr Leake on behalf of the defendant during the course of his closing address that she had not seen his exposed genitals and that therefore there was doubt as to whether in fact the man who it was had his genitals exposed at that time.  He might have been doing something other than exposing his genitals….
…[T]he point made by Mr Leake on behalf of the defendant during the course of his closing address [was] that she had not seen his exposed genitals and that therefore there was doubt as to whether in fact the man who it was had his genitals exposed at that time.  He might have been doing something other than exposing his genitals.
The Crown say using your common sense you can come to the conclusion that if it was the same man and he had been masturbating in the same spot on the first occasion when music was being played at that time, you can come to a common sense conclusion that exactly the same thing was happening on the second occasion because of the coincidence in time, location, the same person, music being played and the same hand motion being seen by the young girl.  The Crown say you can come to the conclusion that the genitals were exposed on the same occasion.  Whether you come to that conclusion is a matter entirely for you because it is your assessment of the evidence that counts in this particular case. ”
22.	When taken with the other directions given by the judge in his summing up, we consider those directions to be, at the very least, adequate.  They directed the jury to the precise point to which findings in relation to count 1 went in relation to count 2.  The episodes were so similar that the jury were entitled to find that it would be beyond coincidence if the appellant was not doing what he was doing on the first occasion, i.e. masturbating his naked penis.  No further, or more complex direction, was required.
23.	For those reasons, in relation to conviction, we do not consider either ground made out, nor do we consider the verdicts are in any way unsafe. 
The Appeal against Sentence
24.	Turning to sentence, we consider Mr Leake’s submissions had far more force, the appeal raising a common and important issue in relation to the proper approach of a sentencer where he considers the most appropriate sentence is a community order, but the offender has already spent time on remand pending his trial.
25.	The issue arose in this case in the following way.  In relation to recommendations for sentence, the pre-sentence report was refreshingly clear and unequivocal.  The author considered that the appellant had considerable thinking and behaviour problems, particularly with regard to his attitude towards women: her view was that the appellant’s inappropriate behaviour would not stop, unless and until he had appropriate treatment.  Such treatment would take three years, and therefore required an order involving supervision lasting at least three years with a requirement to attend the relevant testing, assessment and treatment courses.   Without such treatment, the author of the report said that, in her opinion, the appellant “will continue to offend”.  Although the report also accepted that these offences passed the custody threshold, with the benefit of that opinion it is obvious why the judge saw the wisdom of a three year community order, requiring the appellant to attend the treatment that he needs.  Such an order would have considerable potential benefits for both the appellant, and the public at large.
26.	However, prior to his trial, the appellant had spent 173 days on remand in custody, i.e. nearly 6 months.  Mr Leake submitted that, given that in respect of any sentence of imprisonment an offender serves half in custody and the rest on licence, that period spent on remand is the equivalent of an 11-12 month prison sentence.  Had the appellant been sentenced to an immediate term of imprisonment, he would have been entitled to a direction that the time he had served on remand would count as time spent by him in custody as part of that sentence (section 240 of the Criminal Justice Act 2003).  In those circumstances, Mr Leake submitted that it was wrong in principle to have imposed on the appellant the three year community order that was imposed, or indeed any sentence with any further element of punishment.   A community order of course does impose significant restrictions on an offender and, if he breaches the order, then he is liable to be punished for the breach.  He submitted that, where an offender has served in custody the equivalent of a sentence of imprisonment greater than that which could properly be imposed for the particular offence in the circumstances in which that offender committed it, it is wrong in principle to impose any sentence with any further punitive element. 
27.	That submission was forcefully made.  It was strongly reliant upon the mandatory wording of section 240: by section 240(3) and (4)(b), a court must make a direction that days spent in remand for an offence will count towards a sentence of imprisonment imposed, unless the court considers it just in all the circumstances not to make a direction.  
28.	Mr Leake also relied upon the judgment of this court (Underhill and Griffith Williams JJ) in Hemmings [2007] EWCA Crim 2413; [2008] 1 Cr App R (S) 623.  In that case, the appellant had spent 99 days on remand, and then pleaded guilty to offences of battery and criminal damage, to which he was sentenced to an 18 month community order with a requirement for attendance at a domestic violence programme.  The days spent on remand were the equivalent to a 6 month sentence, and it was uncontentious that no longer term of imprisonment could possibly have been properly imposed for these offences.  In those circumstances, it was submitted that it would be wrong in principle to impose any further punishment.  The court agreed.  Underhill J, giving the judgment of the court said this (at paragraph 6):
“We understand, and to a considerable extent sympathise with, the judge’s reasoning.  It was no doubt the case that both the appellant and the wider community were likely to benefit if [the appellant] had been obliged to undergo a period of supervision and take the course proposed.  Nevertheless it seems to us that the order is wrong in principle.  A sentence of a community order, and all the more so one coupled with requirements which have a real impact on the offender’s liberty, is a form of punishment.  It does not seem to us to be right that the appellant should receive a substantial further punishment in circumstances where he has already received what was in practice the maximum punishment by way of imprisonment which the law could have imposed.”
29.	The court considered that reasoning to be in line with the reasoning in cases such as McCabe (1988) 10 Cr App R (S) 134 and Peppard (1990) 12 Cr App R (S) 88 (to which now could be added Barrett [2010] EWCA Crim 365; [2010] Cr App R (S) 86), in which different constitutions of this court have deprecated the passing of a suspended sentence on an offender who has already served on remand a period equivalent to the suspended term.  The court in Hemmings consequently felt obliged to allow the appeal, and substitute a conditional discharge expiring immediately for the community order imposed by the sentencing judge.
30.	That submission is powerful, and supported by the authority to which we have referred.  Although each case of course turns on its own facts, so far as relevant, Hemmings does appear to be substantially similar to the appeal before us.  However, the result in that case appears to us (as it seems to have appeared to the constitution of this court which sat on Hemmings itself) to be somewhat counter-intuitive: and, in our view, the analysis is flawed, for the following reasons.  
31.	The foundation of any sentence is section 142(1) of the Criminal Justice Act 2003, which sets out the purposes of sentencing, and an approach to sentencing that is mandated.  It provides:
“Any court dealing with an offender in respect of his offence must have regard to the following purposes of sentencing –
(a)	the punishment of offenders,
(b)	the reduction of crime (including its reduction by deterrence),
(c)	the reform and rehabilitation of offenders,
(d)	the protection of the public, and 
(e)	the making of reparation by offenders to persons affected by their offences.
32.	This section makes clear that, whilst the punishment of an offender is one purpose of any sentence, it is not the only purpose.  The rehabilitation of offenders and protection of the public are other purposes, to which any judge must have regard when considering any sentence.
33.	Section 240 of the 2003 Act, despite its somewhat lengthy provisions, has behind it a straightforward and uncontentious principle, namely that where an offender is sentenced to a custodial term for an offence, then time already spent in custody in relation to that offence (or a related offence) should count towards that term.  It sets off time spent in custody in respect of an offence against the time in custody that a court considers appropriate for a conviction in respect of that offence.  Such set off is simple and, as we have said, usually an entitlement. 
34.	That principle is, of course, directly relevant when a court is considering imposing a sentence, and then suspending it.  The purpose of such a suspension is to enable an offender, if he complies with the terms of the order and does not commit further offences, not to serve the custodial term that would otherwise be appropriate for the offence.  If he has already served such a term on remand, the whole rationale of suspension vanishes.  We respectfully agree with the principle in cases such as Barrett that, in those circumstances, it will usually be wrong to impose a suspended sentence at all.  
35.	That, it seems to us, is clear as a matter of principle, and from the provisions of the statutory scheme.  Section 240(7) of and paragraph 8(2) of schedule 12 to the 2003 Act provide that, for the purposes of section 240, a suspended sentence is to be treated as a sentence of imprisonment when activated, not imposed: in other words, a section 240 direction should be given at the time of activation not imposition.  Unless it is unjust not to give a direction, then, as we have indicated, such credit must be given (section 240(3) and (4)).  If the direction would necessarily mean that, when activated, the entire sentence term would be swallowed up by such credited period on remand, then imposing such a suspended sentence becomes an empty exercise.  We consequently agree that the imposition of a suspended sentence in those circumstances is usually to be deprecated.
36.	However, in our judgment, when the court is considering a non-custodial sentence, the position is different.  First, it is different as a matter of principle.  Section 240 is dealing simply with the setting off different periods of custody for the same offence against one another.  When a court is considering imposing a community order on an offender who has already served a period in custody on remand, it has to consider, not only the punishment of the offender (including, of course, the punishment he has already undergone by virtue of his period on remand), but also the rehabilitation of the offender and the protection of the public.  That is a requirement of section 142 of the 2003 Act.  What is therefore required is the weighing of any period spent on remand with the various elements of the potential community order being considered, including both punitive and rehabilitative elements of such an order – a far more difficult exercise than that envisaged by section 240
37.	That is why, although the section 240 requirement to set periods of custody off against one another is in mandatory terms, where an offender has served a significant period on remand but, in the light of its duty under section 142, a court considers a community order appropriate, the period spent on remand is not and cannot be (as Hemmings suggests) a necessarily determinative factor in deciding what the appropriate sentence is.  Section 149 of the 2003 Act recognises that.  It provides:
“In determining the restrictions on liberty to be imposed by a community order or any youth community order in respect of an offence, the court may have regard to any period for which the offender has been remanded in custody in connection with the offence or any other offence the charge for which was founded on the same facts or evidence.” (emphasis added).
Whilst the wording of section 149 is otherwise similar to that in section 240, we do not consider that the difference in wording – section 149 giving the court a power, section 240 imposing an obligation to take periods of remand into account – is mere coincidence.  In our judgment, it is a clear indication that, in line with the general requirements it imposes on sentencers in section 142, Parliament intended there to be a different approach when, in respect of an offender who has served time on remand, a sentencing judge is considering a community order from when he is considering a sentence of imprisonment.
38.	Although section 149 is in terms of “may have regard to” such periods on remand, we have no doubt that, when considering a community order, a sentencing judge should usually have regard to such periods.  In some cases, the fact that an offender has served a significant time on remand may be sufficient for a court to consider that no further punishment is required, and nothing further (in terms of a community order, for example) would be appropriate.  But, even when an offender has served time on remand at least equivalent to the maximum custodial term that could properly be imposed for that offence, in our view, the 2003 Act gives the sentencer a discretion to impose a community order, even if that order includes substantial restrictions.  The value of such an order, in terms of the rehabilitation of the offender and/or protection of the public, may yet make such an order an appropriate sentence.  That may particularly be so where there are great potential benefits for an offender himself, and for the public, in the offender obtaining the support, training or courses that may form part of a community order.
39.	There is further support for our construction of the statutory provisions, in the guidelines issued by the Sentencing Guidelines Council.  Whilst such guidelines do not of course have statutory effect, by section 172 of the 2003 Act, a court must have regard to definitive guidelines when it imposes any sentence.  
40.	Paragraph 1.1.38 of the Definitive Guideline on “Overarching Principles: Seriousness” indicates that a community order may be appropriate where a custodial sentence would involve immediate release:
“Where an offender has spent a period of time in custody on remand, there will be occasions where a custodial sentence is warranted but the length of the sentence justified by the seriousness of the offence would mean that the offender would be released immediately.  Under the present framework, it may be more appropriate to pass a community sentence since that will ensure supervision on release.”
Annex 2 of that guideline recognises the difficulty in giving credit for time on remand in relation to the rehabilitative (as opposed to the punitive) elements of a community order, to which we have alluded, and says:
“Where an offender has been kept on remand, one could take the view that this action was justified by the bail provisions and that the sentencer should not, therefore, feel obliged to adjust the terms of the community sentence.  However, in principle, the Panel recommends that the court should seek to give credit for time spent on remand in all cases and should explain its reasons for not doing so when it considers either that this is not justified, would not be practical, or would not be in the best interests of the offender.”
With those guidelines, we respectfully agree.  They reflect the true construction of the statutory provisions, as we see it.
41.	Section 149 does not appear to have been referred to the constitution of this court that heard Hemmings.  We have no doubt that, had it been, that court would have approached that appeal differently.  We have already noted the apparent reluctance with which the court allowed the appeal, and replaced an order with patent benefits for both the appellant and the public with one without any such benefits.  
42.	Applying what we believe to be the appropriate approach to this case, we note that, although the judge referred to the Sentencing Guidelines Council’s guidelines, he appears to have been referring to those relevant to the particular offence rather than the manner in which time spent on remand ought to be approached: and, of course, the judge did not expressly refer to the number of days that the appellant had spent on remand.  Although we consider it would have been better, in terms of transparency, if the judge had expressly explained how he had approached and dealt with such time, under section 149, for the reasons we have given, he was not strictly bound to do so by the terms of the 2003 Act.  In any event, given the obvious and substantial advantages in terms of the rehabilitation of the appellant and the protection of the public – helpfully, clearly and firmly set out in the pre-sentence report, which clearly informed the judge’s sentencing decision – we do not consider that the sentence he imposed is arguably wrong in principle or manifestly excessive.  Indeed, we consider the sentence to have been principled and wise.  We are comforted, but not surprised, that the statutory scheme allowed for such a sentence in the circumstances of this case, which cried out for a sentence of this supportive kind.
43.	For those reasons, we dismiss the appeal against sentence.
The Appeal against the Costs Order
44.	Finally, we turn to costs.  The appellant of course chose to defend the charges brought against him, in the Crown Court, on the basis that the complainant had identified the wrong man.  He now, following conviction, accepts that he was the man who exposed himself to her.  We understand that the appellant is in employment, and earns nearly £15,000 per year.  He has no dependents.  His housing costs and other financial commitments are relatively small.  In those circumstances, usually, we would have had no difficulty in considering a costs order in the sum made (£2,800 at £500 per month) to be correct in principle, just and wholly reasonable.  
45.	However, although there is no necessary correlation between sentence and an order for costs, in this case we consider that it was incumbent upon the judge, when assessing whether a costs order was just and reasonable for the purposes of section 18(1) of the Prosecution of Offenders Act 1985, to take into account the time the appellant spent on remand, over and above his eventual community order.  During that not inconsiderable period, he was of course unable to earn.  The judge does not appear to have taken this factor into account when he made the costs order. 
46.	In all of the unusual circumstances of this case, we are persuaded that the order for costs was wrong in principle.  We consequently allow the appeal in respect of the costs order, but only to that extent. 
Conclusion
47.	For the reasons we have given, we dismiss the appeals against conviction and sentence, but allow the appeal against the costs order which we quash.