Would you like the basic defence package, the standard package or the superior package? As of October this year that’s a question you will have to answer if you face criminal charges and aren’t eligible for legal aid.
And, to be clear, eligibility for legal aid in criminal matters is not as broad as you might think. If you earn more than £22,000 a year, own your own home, have savings or simply married to someone with a decent income then you may well struggle.
However, although not easy for most to pay their defence, if you are found not guilty then you are able to recover your costs from the government. At present, the system is relatively simple enough, you engage your lawyer, you pay them up front or accumulate a bill. If your case goes to trial and you are found not guilty, or the case is discontinued then you are entitled to recover those fees. In general, if you have been charged less than £1,000 then you will be granted an order, summarily there and then. Otherwise, your lawyers itemise a bill and it goes for what is known as ‘taxation’ and your lawyer breaks down the costs they have incurred. In general, you will recover the vast majority of them.
So, in short, if the charge is not proved then your pocket is protected. It’s not an unusual concept in English law (the basic rule is ‘the loser pays’). In this case, the government has accused you of a crime, they can’t prove you’re guilty, so they pay your costs.
That’s about to change. The Costs in Criminal Cases (General) (Amendment) Regulations 2012 come into force on 1 October 2012. The long and the short of it is this: if you are tried for a criminal case in the Magistrates’ Court, or an attempt to extradite you is made, and you have paid privately, if you are successful in your case then you can recover your costs. However, the money which can be recovered is to be fixed by Government – and we are told is to be fixed at the same as legal aid rates.
Out of pocket
If you’re not eligible for legal aid and you pay privately for your defence in the Crown Court then you will not be able to recover any of your costs. Despite the fact a jury of your peers has found you not guilty you will be left out of pocket.
But the uncomfortable truth is that you may not be able to afford to defend yourself. As of October you may have to make decisions about your future based on cost.
The majority of privately funded cases are motoring offences. Most of these are tried in the Magistrates’ Court and are relatively simple. In these cases the difference between legal aid rates and the rate your solicitor charges may not be severe. But, what if your licence is your livelihood. You may want your solicitor to go and take photographs of a scene, trace a witness, or instruct an expert. You might want a barrister. You might want to meet that barrister with your solicitor before the trial. This is soon to be the luxury option, these costs won’t be recoverable.
Not all driving offences are heard in the Magistrates. Sometimes you have a choice. Dangerous driving or death by careless driving are offences which can be heard in the Crown Court. Sometimes you, as the defendant would have a choice. And, your lawyer, will advise you, if legally aided that you are better off in the Crown Court, judged by a jury of 12 of your peers. However, now we will have to advise you as to costs.
Can you afford a Crown Court trial? What is worth more to you, your legal fees or your driving licence? But it isn’t always your licence is it? It could be your liberty too. How much is that worth?
If your employer was to accuse you of theft, or fraud, you could well find yourself in the Crown Court. Your legal aid may be refused quite simply because you have a house, with a mortgage. The irony is, to defend yourself you may now have to put that house at risk.
The Government brings the case and it is for them to prove your guilt. How can it be right that you have to pay for something they cannot prove? The risk here is clear, that the rich will be able to pay for the defence they choose and that the rest will not. It must be unfair that a wide proportion of people will have to think about cost rather than access to justice.
Ian is a junior barrister who specialises in criminal defence, extradition, prison law and public law and civil actions relating to the criminal justice system. Prior to coming to the bar, Ian was the first man to be employed as the women prisoners’ caseworker at the Prisoners’ Advice Service.