Schedule 6 - Costs in criminal cases
Legal Aid, Sentencing and Punishment of Offenders bill
7:15 pm

Elfyn Llwyd (Dwyfor Meirionnydd, Plaid Cymru)

I beg to move amendment 116, in schedule 6, page 142, line 18, leave out from ‘proceedings’ to ‘under’ and insert

‘in the Crown court including an appeal’.

The amendment is straightforward. Paragraph 3 of schedule 6 has the effect of amending proposed new section 16A of the Prosecution of Offences Act 1985. It follows that when an individual is accused of a crime, and he or she chooses to defray the costs of his or her own legal defence rather than apply for legal aid, and that person is subsequently acquitted, they can reclaim only costs incurred in the magistrates court or the Crown court on appeal. This appears unfair and illogical. The amendment would put the matter right by preserving the power of the court to make a defendant’s costs order in respect of an acquitted defendant’s costs of trial in the Crown court.

The amendment has been discussed in previous years, and it is important that we revisit it. I hope that the Government will explain why such an exception should continue.

Jonathan Djanogly (Parliamentary Under Secretary of State (HM Courts Service and Legal Aid), Justice; Huntingdon, Conservative)

Amendment 116 seeks to give the Crown court the power to award legal costs from central funds to individuals, where those legal costs are incurred in proceedings before the court. Legal costs are lawyers’ fees and disbursements, including expert witness costs. The cost to the taxpayer of the amendment would be about £40 million.

The Bill seeks to amend the Prosecution of Offences Act 1985 to provide a new framework for the award of legal costs from central funds. We intend to strike a fair balance between refunding legal costs to acquitted defendants or successful appellants who have paid privately and protecting the taxpayer from picking up the bill for legal costs, which on average are three to four times more expensive than legal aid costs; in some cases, the difference is even more.

Expenditure from central funds has more than doubled in cash terms over the past eight years. Defendant costs orders accounted for £66 million of the £94 million central funds budget last year, and the current rate of expenditure is unsustainable. We do not believe that  compensating individuals and companies at such rates represents the best use of taxpayers’ money. Money spent compensating such people is money that cannot be spent elsewhere.

Our policy is that where legal aid is available to all individuals, such as in Crown courts, there will be no provision for legal costs to be paid from central funds. Where legal aid is not available to all individuals, such as in magistrates courts, legal costs from central funds will be available. It is intended that these costs will be capped at legal aid rates or thereabouts.

Andy Slaughter (Hammersmith, Labour)

Two years ago, asked for a comment on this type of provision, the Attorney-General, the then shadow Justice Secretary, said:

“it is wrong. If a person wishes to be represented privately or has to be, then they are entitled at the end of criminal proceedings in which they are acquitted to recover their reasonable costs in exactly the same way as they would be able to do in civil proceedings”

I believe the Minister, who was also in the shadow Justice team at the time, associated himself with those comments. What has led him to change his mind?

Jonathan Djanogly (Parliamentary Under Secretary of State (HM Courts Service and Legal Aid), Justice; Huntingdon, Conservative)

We have changed our mind towards what the then Government were thinking. There are reasons why we have come round to that. First, we realise that we simply cannot afford the luxury of a system that pays legal costs at rates three to four times higher than legal aid rates. Secondly, we cannot afford to fund the dream team defence when someone wealthy has engaged top lawyers to defend relatively minor cases at rates many times higher than legal aid. Legal aid rates are reasonable and sustainable. They are the norm in most criminal cases. Thirdly, following the central funds’ judicial review of the previous Government’s policy, the Government have set out a new legal framework in the Bill for central funds. This has enabled us to take a fresh look at central funds.

Finally, acquitted defendants in Scotland who pay privately do not receive any of their costs back. Not everyone will be eligible for legal aid. Our central funds proposals ensure that where legal aid is not available to individuals, costs from central funds are available, capped at legal aid rates or thereabouts. So legal aid is available to all individuals in trial proceedings in the Crown court. Although some individuals, depending upon their financial means, will have to pay contributions towards their legal aid costs, should they be acquitted, their contribution will be refunded with interest. An individual who is legally aided and acquitted would pay nothing. We do not think that there is any need to make provision to pay the legal costs of those who choose to pay  privately and pay more when they could have applied for and been granted legal aid representation. I therefore urge the right hon. Gentleman to withdraw his amendment.

Elfyn Llwyd (Dwyfor Meirionnydd, Plaid Cymru)

I am still a little uneasy about the Minister’s response. In my experience, defendant costs orders were always very carefully overseen by Crown court associates to ensure that they were not exorbitant. It seems to me that in a fair system when somebody is faced with defending their reputation—even their liberty— and they choose to instruct solicitors and barristers on their behalf in the Crown court, they should, if successful, be entitled to their costs, although they should be reviewed to make sure that they are not exorbitant. I was not aiming at providing a dream team, as the Minister says; I am just looking at the ordinary Crown court trial where an individual would not qualify for legal aid because his or her income is above that. It does not have to be a king’s ransom to be above the limit for legal aid. I am still a little uneasy, but the point has been made and the response has been given, and I am content to leave it there. I beg to ask leave to withdraw the amendment.