Pay to prove your innocence

The Labour Government sought to introduce plans to prevent acquitted defendants to criminal cases from recovering their costs from the prosecution.  In all cases, whether civil or criminal, it is said that "costs follow the event", which means that the losing side gets to pay the legal costs of the winning side.  In criminal courts up and down the country you will daily see defendants who have been convicted or pleaded guilty being ordered to pay the costs claimed by the prosecution.  Equally, if a defendant chooses to pay for his own defence and is acquitted then the prosecution has to repay him the money he spent defending himself.

So, to be clear what we are talking about are people who have been accused of a crime and found to be not guilty of that crime by either a jury or a bench of magistrates.

The Labour Government was judicially reviewed by those concerned about civil liberties (and no doubt some lawyers concerned about their income - let's not pretend that lawyers don't want to protect their livelihoods).  The Government lost and those proposals never became law.  The newly elected coalition confirmed at that time they would not appeal the High Court's ruling.  However, despite that earlier promise the Coalition Government has now announced that they will in fact prevent the innocent from claiming back money spent proving their innocence.

The Bill will become law around April 2012. I anticipate that the  Defence Cost Order (DCO) proposals will come into force shortly thereafter.

The proposals are:

1. No DCO's in any circumstances for companies/corporate bodies etc - they will have to bear the cost themselves or insure - although I will tell you now that I have tried and failed to find any insurance company willing to provide after the event legal expenses cover for criminal litigation;

2. No DCO's for individuals in the Crown Court as contributory legal aid is available in all case - you therefore take legal aid or nothing; and

3. In the Magistrates' Court DCO's will be available for acquitted individuals, capped at legal aid hourly rates.

Given the current financial mess that the country is in you might be surprised to hear that companies will be forced to pay for their own defence in circumstances where they have done nothing wrong.  This will put practically any small business facing an accusation and in financial difficulties out of business.

The second proposal is also surprising for a majority conservative government in that it seeks to remove freedom of choice from people and requires them to become reliant upon the state... very socialist if you ask me.  It's also worth noting that the contributions can be up to £900 per month and some cases can take more than a year to come to trial.  At least if you pay privately you can have an agreement with your solicitor over how and when you make payments.  I know for a fact that I couldn't afford to pay out an extra £900 p/m... could you?

The effect of point 3 will really be to stop people accused of motoring offences from being represented in court.  Now, this isn't going to stop the rich from being represented because they can afford to absorb the difference between private and legal aid rates (my private hourly rates are pretty average at £180 p/h for a director, £140 for a solicitor and £90 for a trainee - my own solicitor charges me £300+VAT per hour!  Legal aid hourly rates are fixed at £49.70 p/h).  This means that the average man or woman accused of a motoring offence and facing losing their job will have some pretty touch choices to make.

So, let's say you come to me asking that I represent you personally at a trial.  Say the whole case takes about 12 hours to prepare, which is about average for the magistrates court, then you will have a bill of about £2,000 - this is actually the fixed fee we offer for a mags court trial if I represent you personally.  Now, let's say that because you are innocent you are found not guilty by the court.  You can reclaim your costs at the legal aid hourly rate, so you will get back £596.40 leaving you with £1,403.60 to pay.  Remember, criminal proceedings aren't something you can avoid like civil proceedings often are.  You have no choice but to get involved and defend yourself in court if you are accused!

Just to give you an idea, my nearest competitor will do a mags court trial for £1,500 + VAT, so £1,800 all in.  So you can see that my fees are not particularly high - if you read the papers you'll celebs who have paid £29,000 for a mags court trial (in the case of one comedian I read about).

If you agree with me that it is grossly unfair to ask innocent people to pay to prove their innocence then I urge you to sign this e-petition on the Government's petitions website.