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Costs in criminal law cases: the real two-tier system

In April 2014 Nigel Evans MP was acquitted of serious sexual assault allegations.  He berated his own party’s changes to legal aid costs because they deprived him of recovering his £100,000 legal costs in defending himself.  He later conceded that he ‘probably’ would have voted for Legal Aid, Sentencing and Punishment of Offenders 2012 (LASPO) himself (he was the deputy speaker at the time and did not vote).

The costs rules for successful defendants

Schedule 7 of the LASPO governs Defendants' Costs Orders for recovery of a successful defendant's costs in criminal proceedings commenced on or after 1 October 2012.  Recovery of costs for successfully defending a Magistrates’ Court case is capped at legal aid rates which range from about £25 to about £45 per hour.  These rates may be as low as 10% of private fee levels, which will often exceed £250 per hour in London.

Recovery of costs after successfully defending proceedings in the Crown Court is now impossible, unless you applied for legal aid and were refused on the means test.  Refusal only applies to those with £3,125 disposable income per month after household expenses and childcare costs.  Very few people have that sort of spare money.  Even then, costs recovery is again limited to legal aid rates, so even the ‘wealthy few’ would get back, perhaps, 20-30% of what was spent.  Those who are entitled to legal aid in the Crown Court face the stark choice of taking it (in which case they are often restricted in their choice of advocate and/or the lawyer preparing their case, but may still have to pay a means-tested contribution to the Legal Aid Agency) or paying privately and not recovering a penny if they are acquitted.

Also voting for these LASPO changes in 2012 was Michael Gove MP, the current Lord Chancellor who is hailed by some as a great redeemer for scrapping many of his predecessor Chris Grayling’s controversial schemes.  Mr Gove even gave a stirring speech in 2015 identifying a ‘two-nation’ justice system. Wasn't it unfair, he mused, that the wealthiest people enjoyed a ‘gold standard’ of justice whilst ordinary ‘hard-working families’ have to accept delays and failure?

In criminal justice, Mr Gove should note a stark two-tier system staring him in the face: the difference in costs recovery between private prosecutors and private defenders. 

If the state decides to prosecute you, and you have the temerity to successfully defend yourself – and pay for the pleasure - then you will recover costs either capped at legal aid rates or, much more likely in the Crown Court, nothing.  This is irrespective of how weak the state’s evidence appears, how compelling your defence is, or how often your solicitors pointed these things out to the police and/or prosecution.

But if you feel aggrieved and want to privately prosecute a case, even where the state declines to get involved, then you can recover legal costs at full commercial rates, subject to the assessment of the Court.  No legal aid caps, no automatic bars on recovery, no actual requirement to even to win your case.

To summarise:

In scenario A, you are defending a criminal case brought by the state, you prove the state wrong and win, and you typically recover between 0% to 30% of your costs (0% being likely, 30% being very optimistic).

In scenario B, you prosecute a case which the state has either never heard of or declined to prosecute, yet here you have a chance of recovering 100% of your costs at full private rates even if your target is actually acquitted.  Your money would be refunded to you from the state’s coffers. Mysteriously, you never ever hear the term ‘hard-working families’ being used in this context.

Why the difference between prosecution and defence?

What is the thinking behind this absurd disparity?. The truth appears to be that there was, and is, absolutely no thinking behind it at all.  No one anywhere near the corridors of power appears to have even picked up on it.  It is almost as though, like Mr Evans, that they won’t turn their minds to the fairness of the system unless and until they are personally affected by it.

Click here to read how Brett Wilson LLP Criminal Defence Solicitors can assist you if are the subject of criminal proceedings.


Legal Disclaimer

Articles are intended as an introduction to the topic and do not constitute legal advice.