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November 6, 2015

Should the justice system financially penalise the innocent?

“If someone is dragged through the courts through no fault of their own and is acquitted they should get their legal fees back from the CPS (Crown Prosecution Service) budget.  Maybe that will make them focus on whether a case is worth pursuing.” Nigel Evans, MP

In 2014 a little known change to the justice system hit the headlines when the former Deputy Speaker of the House of Commons was cleared of rape but left court £130,000 the poorer. Should those who have been acquitted be able to get their legal costs back?  Before 2012, people could get “reasonable” costs back if they had paid privately for a lawyer and were found not guilty, or if the prosecution withdrew the case.  New Labour tried, and the coalition government succeeded in changing the law, so that those found not guilty could only recoup a small fraction of their costs.  In a new report, Transform Justice asks why the innocent should be financially penalised, and whether the government should reverse this policy.

The report suggests that the current situation is unfair for various reasons

1) Some people are not eligible for legal aid and have to use a private lawyer or represent themselves.  Most private lawyers will not work for legal aid rates

Most private lawyers will not work for legal aid ratessince they see them as insufficient to do a good job. So, even if acquitted, private payers lose considerable sums since the government will not recompense private fees above the legal aid rate.

2) If you are very wealthy, but faced with a very expensive trial (eg those accused of fixing the Libor rates), you are likely to be granted legal aid, therefore will have legal feeds paid even if convicted.

3) It can be cheaper to plead guilty and take a high fine, then to go to trial and be acquitted.  A man acquitted of harassment without violence worked out that he would have been at least £3000 better off if he had pleaded guilty.

4) You are much more likely to get your costs back if you win a civil case than if you are acquitted of a crime.

5) If you take a private prosecution with “just cause”, you will get reasonable legal fees paid, even if the defendant is acquitted.  So the recompense received by a client privately prosecuting may be far higher than that of  someone privately paying for their defence.

The response of the government is probably that they cannot afford to recompense private payers, whichmay be the case.  But then the system as a whole needs to be changed, so fewer people are unsuccessfully prosecuted.