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Injustice coming to a court near you in October 2012

CrimeLine - pretty much the foremost provider of legal news and training to criminal lawyers - reported this morning that changes to Defendant's Costs Orders are expected to come into force this October.

A Defence Costs Order is something you get if you have been falsely accused of a crime, you pay for your own defence and you win your case.  It's simply a branch of the concept that the loser pays, in other words, if you are in the wrong then you get to pay the costs.  So, a convicted defendant can expect to pay towards the prosecution costs just as the prosecution get to pay toward the costs of an acquitted defendant.  Sound fair?  I think it is.

As of October, this is set to change.  Companies falsely accused of crime will have to pay for their own defence full stop.  Defendants in the Crown Court must either accept legal aid (with contributions of up to £900 per month) or pay privately in the knowledge that following an acquittal they will not receive back a penny of the money that have spent on their case.  Defendants in the magistrates court will only be able to recover costs at the same rate as legal aid payments, which means defendants who are not eligible for legal aid will have to pay a substantial amount of money to defend themselves - to give you an indication, you can expect a magistrates court trial in London to cost you around £1,500, whereas legal aid will pay the solicitor £378.46 in most cases.  It's a bit more complicated that that because firms tend to charge clients fixed fees rather than hourly rates but when you seek a Defendant's Cost Order you have to claim at an hourly rate, for comparison, a fairly typical hourly rate in London will be between £120 - £180 depending on the level of experience you want from your solicitor.  Legal aid will pay £49 per hour in London.

So an innocent defendant who is facing an allegation in the magistrates court can expect to pay a substantial amount to exercise their "right" to have equality of arms with the prosecution, who will be represented at trial by a proper solicitor or barrister.

Just so you know, the Legal Services Commission (LSC) guarantee you funding if your income is less than £12,475 p.a. or if you are on certain benefits.  If your income is between £12,476 and £22,325 then you may or may not get funding depending on a number of factors and in the Crown Court you are likely to have to pay a contribution toward your defence, if your income is over £22,325 then you get nothing in the magistrates court and will have to pay a contribution of up to £900 p/m toward your defence in the Crown Court.

Now, you might assume that the answer is simple, fat cat lawyers could simply reduce their outrageously high prices.  But, when you actually think about what you are buying you start to realise that being a proper solicitor is not cheap: the overheads are very high, the training is very lengthy and the risks to the solicitor are great.  This is why firms charge what seem like very high hourly rates.  Imagine you are having surgery, do you want a surgeon with little experience?  With sparse training?  Of course you don't.  Let's say you are having an extension built on your house, do you want the bloke who shows up with only a vague idea of how he'll do the work or the fella who comes along, looks at the plans and can show you examples of his work that are still standing?  I'm going to guess you want the second one. 

When I first began working we were a bit lax about charging private rates because legal aid paid a reasonable amount of money for a case - although the overall legal aid budget was a fraction of what it now is - and we knew that we could do a decent job for our clients on the fees being paid.  That hasn't been true for a while now and I can no longer put my hand on my heart and say that you will get as good a service if your solicitor is being paid by legal aid as you would if you pay him privately.  It's worth noting that that the Government has made substantial cuts to funding and just recently made a futher cut of 25% to most fees and 100% for cases heard in the magistrates court that go to the Crown Court for trial.  At the start of this year, we had a case that required five magistrate court hearing and for those hearings we got a fee of £0 (yes, zero pounds sterling).

Incidentally, the fact that we can no longer provide a good enough serivce on legal aid is one of the reasons I spoke to my contract manager at the LSC the other day and announced that we would be withdrawing from the contract and no longer providing services to legal aid clients!

Back to Defence Costs Orders.  Is it fair that a completely innocent person is accused of a crime they didn't commit, refused legal aid and then prevented from recovering the fees they had to pay to prove themselves innocent?  Is it fair that a small business accused of, say not paying their rates (as I bizarrely was on a building I do not own or rent a couple of months back) or an environmental offence, etc. should have to fork out to defend themselves?  Incidentally, the cost of defending myself against the false claim I owed rates cost my firm a little over £1,500+VAT, or would have if I hadn't represented the firm myself. 

The argument for bringing about this change in the Crown Court seems to be that legal aid is available (albeit with contributions) therefore all defendants should utilise it.  That argument clearly doesn't hold up in the magistrates court where legal aid is not universally available.  I cannot fathom the reasons for only allowing the innocent to recoup a fraction of the costs they spent defending themselves, other than it being a cynical and underhand ploy to make more people plead guilty on the basis that the fine is less than the cost of defending themselves.

If you are one of the people who read all of that (well done) and are thinking that you don't care because you're not a criminal, not only have you missed the point, but I'd ask you to consider a hypothetical situation you probably can imagine: It's a hot summers day, the bluebelles are in the fields and the sound of willow on leather can be heard across the countryside.  You are driving you car when some fool hits you.  Rather unsportingly, he blames you for the whole thing and his insurance company sues you.  You know you're in the right.  But, instructing a solicitor to defend you isn't possible because you can't claim the money back from his insurance company when you prove yourself innocent.  Is that fair?  No.  That won't happen because this change doesn't effect civil claims, but I hope it makes the point about unfairness... also, what if the police believed him and charged you with dangerous or careless driving?  Then it would apply to you.

Comments

  1. 'Let's say you are having an extension built on your house, do you want the bloke who shows up with only a vague idea of how he'll do the work or the fella who comes along, looks at the plans and can show you examples of his work that are still standing? '

    Of course you want the second one, but that's got nothing to do with the prices he charges - whatever they are - it's to do with the evidence he shows you and other proofs of his skill (testimonials, provable past record etc.) and unfortunately probably rapport too. In fact, the second fella might well be open to negotiation, discounting, special deals etc.

    ReplyDelete
    Replies
    1. Yes, I agree but what I am getting at is the old saying that you pay peanuts and you get monkeys.

      If you want to pay a tiny amount of money then you are not going to get the highly qualified and very experienced workman. That applies equally whether you are building a house, re-wiring a house or conducting a court trial. There comes a point where it costs you money to take a case, as is already the position with some legal aid cases, so nobody will discount below the point where they make a profit without a very good reason.

      We are already seeing a two-tier system forming - it's developing every day. I can promise you that if you instruct a solicitor who is acting on legal aid rates then you are going to get a much poorer service than if you instruct somebody who is receiving a proper amount for their work. This is simply because the one who is paid less must work on far more cases to reach profitability.

      Delete
  2. This defense cost order is great as now there is a chance for defender to prove his side.

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  3. That is a great post. In this defender have the another chance to show the evidences and proofs of their side. criminal law firm sydney

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  4. This is really a very scary change.

    On the "it can happen to anyone" point; my partner was falsely accused of travelling on a train without a ticket. Someone else had given his name when caught.

    It would have been cheaper to "take the fine" however it also affects any criminal record check you have done (it's a dishonesty crime) and he would have lost his job. We knew it was false so went to court knowing that we wouldn't be out of pocket. With these new proposals we couldn't afford that and would have to take out a loan to challenge.

    Very concerning news.

    ReplyDelete
    Replies
    1. Yes you are right. My nephew was actually convicted by a court for travelling without a ticket. First we knew of it was when a notice arrived saying he hadn't paid his fine. I am 100% certain it wasn't my nephew who wasn't paying his fare, as he lives in China and hasn't been to the UK for 18 months.

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    2. I am a solicitor of 30 years experience defending cases in the magistrates and crown court. I wholly endorse all of the above. The new regulations are an absolute disgrace. It is designed to attract more guilty please and cut the number of cases that go through the court thereby saving the government money that can be diverted to funding exhaustive immigration appeals and a bottomless public service pension void. Absolute disgace. Kenneth Clark deserves to be strung up by his briefs, as do the useless incompetent Law Society- where or where were they this time round to defend the man in the street?

      Delete
  5. This really is quite worrying. And totally contrary to what I would think of as the interests of natural justice.

    ReplyDelete
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    ReplyDelete
  7. Let's suppose you go through the whole process funding yourself and are found 'innocent' - can you then sue the false accuser for compensation ? Would this then pay for the original costs, and the costs of suing for compensation ? Can you sue the justice system/CPS if they make a false accusation ? I'd be interested in your views and will watch this thread with interest.

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  8. I found out about this change in the law when I was researching whether I could claim back the costs of defending myself against charges brought against me by the Public Prosecution Service. A woman went to the police and claimed I had clipped her car. This claim is untrue and there is no evidence other than this woman's statement. I am facing charges of hit and run driving and careless driving. I am having to pay to defend myself against these false charges. My solicitors told me I could not reclaim any of my costs. I then read about the Defence Costs Order but, as I live in Northern Ireland, it does not apply here, but there seems to be something similar in place under a different Act (though limited to a very low amount). I asked my solicitor about this - and was horrified that he replied that this was the first time he had ever heard of anything like this .... but he would research it before the hearing. Doh! Seems like even a reduced defence costs order amount may be more than we get in this province. Equal justice for all????

    ReplyDelete
    Replies
    1. I don't know anything about Northern Ireland but I was under the impression that DCOs were as applicable there as in England and Wales. Does your solicitor specialise in criminal law?

      I always recommend that everybody should shop around a few firms (and in driving cases that means specialist driving solicitors) to get a feel for the person who is right for them. This tends to give you a feel for the sort of advice you're going to get from different people and I'd be amazed if nobody discussed getting your fees back following acquittal.

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  9. Are you sure that "with contributions of up to £900 per month" is correct? This is currently the amount that contributions default to IF there is some issue with your financial evidence. It can be more than this and for a lot of earners will be limited by the average cost of trial. I personally paid over £2000 a month for 6 months, which I am now struggling to claim back after the case fell apart for abuse of process.

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    Replies
    1. I have never heard of anybody being charged more than £900 per month and you are correct that this is the amount they default to. When they were brought in the no defunct LSC said that contributions would default to the maximum contribution of £900 p/m as I recall. It way well be that this cap has now been lifted. I guess it must have been if they are charging you £2k p/m!

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  10. I have a client being chased for contributions to legal aid that he declined when he saw that the amount they wanted he could not afford (£2000 pcm). He paid privately an amount that was less than the monthy amount and was aquitted.

    He has received 25% of his defence costs back. He has not cost legal aid a penny, but they are still chasing him through their hired muscle, Rossendales, for £2000.

    The whole situation is an outrage but does not attract any media attention at all.

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  11. I have been left penny-less due to this, and there is nothing I can do.

    Sep 2013, @4:45pm (noted by cop) I was stopped in my BLACK car by a cop, I had only 15mins ago asked for directions. It was alleged that a person matching my description was found to have indecently exposed themselves to a 17yr old girl @4:30pm... I was horrified, returned to station to give voluntary statement and agreed to attend an ID parade. Cop noted what I was wearing Black T-shirt, Light Blue Denim Jeans, had Blue eyes, stubble and local accent. At this stage I have not been told of the perpetrator. ID parade happened, to my shock I was picked out!.
    CPS stated enough evidence to charge.
    Information sent to my solicitor - man in a RED car, wearing black Work shirt, with a black collar, Black Trousers, a Beard (accuser actually stated more than stubble), Brown Eyes and a strong west midlands accent -- Clearly not me, only thing that was right was I am white and male.
    Myself and (ex)gf attend magistrates court 1st Apr - Had legal aid for (thank god), and to our shock the full extent of the joke of the Justice system came out - They could not take into consideration the colour of the car, clothing, eye colour or accent as "she was clearly distressed" and I was found guilty, as a result I had to sign on sex offenders register prior to sentance date end of apr. As a result of SOR social services vist (ex)gf as she has a 16yr old son.. The Magistrates had passed on to PPU & SS that I was found guilty of 2 offences (she corrected them - to which stated she was deluded as she would not know what i got found guilty of), and have similar previous (something I dont have) therefor as a result gave her a choice, stand by me or keep her son - I am pleased to say she put her son first which I whole heartedly expected and completely agree with. They also slapped a no contact order on her - stating if i contacted or went anywhere near her, she was to call the cops (why I dont know).
    Anyway - I was sentanced to 120hrs Com service, 5yrs on the SOR, ordered to attend a SO workshop for 36mths and also fined £300 and £500 compensation!.. An appeal was lodge straight away.

    Despite my wages and employment not changing (20k pa) I was refused legal aid for crown court 3times and had to pay private - total cost of this was £3.5k.
    At crown (aug 14), the accuser changed statement - different road, eye colour, accent but clothing and car remains same. Cop was questioned agreed that my car, clothing, eye colour, accent was different much to the shock of the Judge and 2 magistrates.
    Judge upheld my appeal and I was acquitted as it was clear to him that it was not me!!
    Defenders Cost Order granted (yet to be confirmed in writing).. No idea how much that will be BUT I am also NOT entitled to any form of compensation, and unable to claim/sue officer/cps or the accuser.

    Damage has already been done between myself and ex (her son does not want me anywhere near her or the house despite aquitted) been 5mths... Social Services will NOT remove my details as they had to do an investigation, they can only mark a file as closed, the Charge will still show up on a CRB check - i went back to college Sep 13 to get a teaching qualification - that's now a no-go and I will now also have to apply for Visa's if I travel to USA and other countries.

    So I've been screwed over good and proper and can do nothing about it. I'm skint due to all of this.

    ReplyDelete
  12. I empathise. Something scarily similar occurred to me. Result...I went to prison...SS stazi wreaked havoc with my family..(you would seriously not believe some of the lies they told...nefarious is too polite a term, sinister more like)...now in a bail hostel...no home...no assets..career gone...no funds..on Jobseekers allowance...and TODAY..2.5 years after my court case..I get a letter from Rossendales demanding over £9k. WTF ? They can join the queue of those who will receive nothing...AS I HAVE NOTHING. Not even a damned life anymore..

    I am only sorry I cannot offer words of advice or comfort..but I do empathise.

    ReplyDelete

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