Government Overrules Law on Defence Costs

In September 2009, outraged by the impending implementation of motoring defence cost capping regulations, President of the Association of Motor Offence Lawyers (AMOL), Jeanette Miller, launched an e-petition on the no.10 website. By the time the petition closed, it attracted almost 22,000 signatures.

Despite this strong objection, The Ministry Of Justice proceeded with the implementation of these unjust rules designed to cap the costs of a successfully acquitted defendant. The 2009 petition attracted the support from many high profile figures including 26 QC’s and the Criminal Bar Association have fully endorsed the sentiments behind the petition. The petition was also backed by many legal and motoring organizations. Following the petition, the Law Society took up the helm and launched judicial review proceedings against the government in January 2010.

The judgment - handed down on June 15 2010, by Lord Justice Elias and Mr Justice Keith - ruled unlawful an attempt by the previous Lord Chancellor, Jack Straw, to cap the costs paid to people acquitted in criminal cases. The court said:

“The new regulations involved a decisive departure from past principles. They jettison the notion that a defendant ought not to have to pay towards the cost of defending himself against what might in some cases be wholly false accusations, provided he incurs no greater expenditure than is reasonable and proper to secure his defence. Any change in that principle is one of some constitutional moment. It means that a defendant falsely accused by the state will have to pay from his own pocket to establish his innocence. Whatever the merits of that principle, I would be surprised if Parliament had intended that it could properly be achieved by sub-delegated legislation which is not even the subject of Parliamentary scrutiny.”

When this judgment was announced, the current government confirmed they would not appeal the ruling. However, rather than take heed of all of the concerns the introduction of these rules raised, they have announced an intention to seek to introduce the rules via a parliamentary bill.

The original case that was won by the Law Society concerned the Prosecution of Offences Act 1985, section 16 which gives the courts the power to award costs to successful defendants of such an amount “as the court considers to be reasonably sufficient to compensate the defendant for any expenses which he has properly incurred in the proceedings.”

This scheme came under scrutiny as a result of budget overruns and the impact of a small number of very high cost cases. The government’s response to budgets being exceeded was not to scrutinize the number of unnecessary and inappropriate prosecutions but instead, they introduced a scheme which limited recoverable costs to legal aid rates. This would inevitably mean that refunds would be for a fraction (around 20%) of the true cost a defendant pays in proving their innocence.

The Government estimated that its new scheme would save £20 million each year. The cost of this was to be borne by individuals, an average of £16,200 per case in the Crown Court, representing the difference between the average costs of a privately paid case (£19,000) and the average cost of a legally aided case (£2800).

What are the proposals?

This time around, the government’s proposals will be debated in Parliament. Last time they were introduced with no debate. If passed by Parliament, they are expected to become law in or around April 2012 and will mean:

1. There will be no Defendants' Costs Orders in any circumstances for companies/corporate bodies etc - they will have to bear the cost themselves or insure. This will affect companies prosecuted for health and safety matters and will also affect companies prosecuted by VOSA and for non-VOSA matters such as failing to furnish information.

2. The government have also proposed that there be no Defendants' Costs Orders for individuals in the Crown Court as contributory legal aid is available in all case - In other words, you are expected to therefore take legal aid or bear the cost entirely for your own privately paid lawyer.

3. In the Magistrates' Court (where the majority of motoring cases are heard) Defendants' Costs Orders will be available for acquitted individuals but these will be capped at legal aid hourly rates. Currently legal aid rates are around £60.00 per hour.

What can be done?

When asked what her intentions are this time around, Miss Miller who was dubbed as “Miss Justice” after the success of her previous campaign, commented:

“I felt very proud of what we had managed to achieve in 2010. The ordinary motorist stood up to the government and we made our concerns known. While my petition was certainly not the reason the regulations were repealed, in apathetic times we stood up to a grossly unfair proposition.

So when I learned of some proposals tagged onto the end of Ken Clarke’s parliamentary bill I was devastated to say the least. Because these proposals have been included alongside proposals to cut the legal aid budget which is an entirely separate cause altogether, I suspect the government were hoping they would be lost in the detail. From the lack of knowledge of the proposals amongst my contemporaries, they succeeded.

I have launched a second petition and am meeting with the Law Society later this month to discuss what we can do to ensure we highlight all of the possible problems that stem from these proposals to those who decide on their implementation. This time around we know our concerns will be presented to Parliament so the purpose of the petition is simply to demonstrate the level of protest against the plans.”

The new petition can be found on the number 10 site:

http://epetitions.direct.gov.uk/petitions/5322

For more information or to speak to Jeanette Miller, aka Miss Justice, President of The Association Of Motor Offence Lawyers please contact Jeanette at Geoffrey Miller Solicitors on jmiller@motoroffence.co.uk or telephone on 0161 274 5581 or 07798 898 181.