Defence costs regime challenge fails

Sticking with the question of defence costs, the Divisional Court in R (Aiden) v Secretary of State for Justice [2015] EWHC 130 concerned an ambitious application for judicial review of the new Crown Court defence costs regime on human rights grounds. The position was the the Applicant had been tried and acquitted of ABH but his non-eligibility for legal aid had been incorrectly calculated by his solicitor. He sought defence costs from the Recorder who applying the new statutory scheme properly refused it. The position now is that everybody is eligible for contribution based legal aid in the Crown Court unless they have disposable income of more than £38,000. If a defendant does exceed the disposable income eligibility limit then if he applies to have his non-eligibility certified, he can recover his defence costs on acquittal but only at legal aid rates. Essentially, the challenge was on the basis of Article 6 grounds which was roundly rejected. Lord Justice Burnett was similarly dismissive of a secondary ground appealing to some inherent jurisdiction derived from the Bill of Rights 1688: "in my judgment that is not an appeal to the rule of law but an invitation to subvert it".