Judicial Review Regarding Defendant’s Costs Order

Question:

Last October the government decided in its wisdom to bring in legislation which meant that if you successfully defended yourself in a criminal matter you could only recover your reasonable fees at legal aid rates.

Ironically you cannot get legal aid for the vast majority of road traffic offences and most people that can afford to run a car would not be eligible for legal aid anyway! Further the vast majority of genuine Road Traffic Offence Law experts are not in a position to work for legal aid rates.

The law society launched a judicial review of the legislation. There have been some developments and an initial response from Government Lawyers.

The following is an extract from Times Online 27.5.10……..

Emma Says:

Ministers face paying out hundreds of thousands of pounds to defendants who have been cleared in the courts because of a legislative drafting blunder, The Times has learnt.

Controversial changes brought in last autumn to stop defendants in the criminal courts recovering their full legal costs have been drafted erroneously it has emerged.

The embarrassing error, which could affect hundreds of defendants cleared since October, comes as the Ministry of Justice faces a judicial review in the High Court today over the new law.

The Law Society of England and Wales is challenging the Lord Chancellor and Justice Secretary, Kenneth Clarke, arguing that the law, aimed at saving up to £25 million a year, is unlawful.

In his defence lodged with the High Court, seen by The Times, the Lord Chancellor has admitted that there was a drafting error in the 2009 regulations.

The upshot of the mistake is that when judges assess costs at the end of a trial, they are not bound by the new regulations, as the Law Society had argued.

The case, before Lord Justice Elias and Mr Justice Keith, is the first to reach the courts involving the new Lord Chancellor. But in view of the error, lawyers for the Government will be under pressure to drop their defence.

In papers lodged at the court, the Lord Chancellor says that he intends to correct the error as ‘soon as is reasonably practicable’.

Despite the error, the Law Society’s case against the regulations is still ‘unsustainable’, the Lord Chancellor argues.

The Law Society, which represents 100,000 solicitors, has called for an urgent statement on the position to be circulated to all solicitors but is understood to have received only a holding reply.

Mark Stobbs, the director of legal policy, has written to the Lord Chancellor saying that any further delay is ‘unacceptable’.

Any costs awarded on the basis of the new rules should be reversed, he says, and all defendants should be entitled to their full costs until the law is changed.

Until October, defendants who were were acquitted could recoup their full legal fees at a cost to taxpayers of £60 million a year.

When courts award costs to acquitted defendants they are required by statute to award a sum that the court considers ‘reasonably sufficient’ for any expenses incurred.

The change was aimed at limiting costs that defendants could recover to legal aid rates – often about a third of the fees they will have paid out.

The Law Society will argue that such rates are not sufficient to be reasonable compensation for defendants, in line with what is required by statute.

Criminal lawyers warned at the time that the cap on costs would lead to miscarriages of justice because people accused of crimes would have to rely on junior and inexperienced lawyers on legal aid.

Some defendants might even plead guilty when they were not, Ian Kelcey, chairman of the Law Society’s criminal legal aid committee, warned.

The change is exacerbated, lawyers say, by the move to means-testing for criminal legal aid, requiring many defendants to contribute towards their legal aid defence costs.

But the Lord Chancellor says that in other jurisdictions, including Scotland and Canada, privately funded defendants are not entitled to have their full legal costs reimbursed on acquittal.