Historically, it was by no means easy for an acquitted defendant to recover legal costs. Indeed, until 1774, acquitted defendants were not even released from custody until their prison dues had been paid. Until recently, however, this medieval approach had been spurned in favour of a more enlightened regime, whereby vindicated defendants would ordinarily be repaid sums they had spent defending themselves.
Unfortunately, through the auspices of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, since 1 October, we find ourselves back in the dark ages once more. While all acquitted defendants will still be entitled to claim for out-of-pocket expenses (such as travel and accommodation), only a small minority will recover sums spent on legal fees. This minority comprises:Even if a defendant can squeeze into one of these categories, they will only be able to reclaim their costs at legal aid rates, rather than at the true market rate at which they were paid. This in itself is invidious, but the true mischief of this legislation is the significant proportion of defendants who will now be prohibited from making any recovery at all.
- Individuals acquitted in the magistrates’ court, or on appeal to the Crown court;
- Individuals who successfully appeal to the Court of Appeal a finding of not guilty by reason of insanity, or unfitness to plead/committing the act; and
- Successful appellants in the Supreme Court.
Of this sorry group, those hit hardest will be privately paying individual or corporate defendants in the Crown court. By its very nature, litigation in that forum is often lengthy and involved, particularly in allegations of fraud. Under the new scheme, however, there is no provision for acquitted defendants to recover legal costs, no matter how iniquitous or misconceived the prosecution against them may be. This could leave genuinely wronged defendants with bills running into hundreds of thousands, or even millions, of pounds.
The government’s justification for this tawdry state of affairs is that all defendants qualify for legal aid in the Crown court, whatever their means. If they avail themselves of this offer, they will not incur any costs at all (contributions being repaid in the event of an acquittal).
Ten or 15 years ago, this argument might have carried some moral conviction. While legal aid rates have never matched the private market, the levels were sufficiently attractive that most lawyers (solicitors and counsel) were willing to accept instructions on this basis. This meant that those accused of the most serious crimes still had a chance of instructing the best in the business. Sadly, the landscape has been dramatically altered by a series of savage legal aid cuts. As a result, while there remains a cadre of committed and very able lawyers willing to undertake publicly funded work, even they have become necessarily discerning in the instructions they accept.
This restriction in the choice of representative, combined with the effect of the new legislation, leaves defendants on the horns of a dilemma: opt for legal aid, knowing that the quality of your lawyers can no longer be guaranteed; or pay privately, knowing that, even if successful, you will not recoup the sums spent on clearing your name.
This shameful state of affairs is entirely consistent with the attitude adopted by successive governments to the criminal justice system in recent times. As budgets, bureaucrats and red tape threaten to take over completely, old-fashioned concepts such as quality of representation and access to justice recede even further from view. In a few years, the net result will be a polarised system in which only the very rich will be able to afford quality lawyers, while the rest will have to make do with whatever is left. Welcome back to 1774.
Christopher Coltart is a barrister at 2 Hare Court