There is no official data on how many families have had to sell their homes to repay legal aid.
When talking about access to justice, the conversation generally focuses on litigants in person, fees, support for victims and witnesses. Less discussed is the aftermath of a guilty verdict for the defendant’s family.
It was the Legal Aid Agency’s response to a freedom of information (FoI) request from charity Transform Justice’s director Penelope Gibbs that got me thinking about what happens to families after a loved one is imprisoned if the defendant is required to pay back costs.
Gibbs was enquiring about capital contribution orders and charges placed on properties by the government.
According to official guidance on criminal legal aid means testing, for Crown court trials there are two types of contribution a defendant may have to make, either from income and/or capital. They may have to pay all, some or none of their defence costs, depending on what the means test decides they can afford from their income and capital assets. A partner’s income is included in the calculation of gross annual income.
The FoI response states that nearly 400 charges were placed on properties in 2015/16.
However, what struck me most about the agency’s response was the fact that the department does not hold information in relation to the number of defendants’ homes that have been sold to satisfy debts to the Legal Aid Agency ‘because there is no legal or business requirement to do so’.
The agency adds: ‘The LAA does not record the source of how applicants satisfy their liability. It should also be noted that the LAA currently do not enforce the sale of properties but instead secure a charge to ensure that if the applicant chooses to sell their property our debt becomes payable.’
I spoke to a woman whose husband was imprisoned last year. She has since received a restraint order from the Crown Prosecution Service which places a charge on the home where she and her children reside.
The CPS website states that a restraint order has the effect of freezing property anywhere in the world that may be liable to confiscation following the trial and the making of a confiscation order.
The wife tells me the restraint order was ‘full of legal jargon, but reading between the lines I could see that everything I owned was now on the table for confiscation’.
She adds: ‘I was fortunate enough to know that this would come and therefore it is not a shock to me. My lawyer told me in no uncertain terms that if I thought the criminal trial we went through that led to my husband’s conviction was bad, I should wait until we got to confiscation. Your negotiating position goes pretty much down to nil when you are “guilty”.
‘I will sign any piece of paper they give me as long as they give me back my husband. I hope to be able to get half the value of this house… that would be great, but I’m not holding out for it!’
The government may think there is no business requirement to know if anyone has had to sell their homes to satisfy legal aid debts, but I’d be keen to hear from solicitors on the extent to which families have been affected by capital contribution or confiscation orders.
Monidipa Fouzder is a Gazette reporter