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Are legal fees topsy turvy?

Penelope Gibbs
12 Mar 2016

This week a car driver was acquitted of the charge of dangerous driving. A common enough occurrence. But in this case the driver was being prosecuted privately by a QC, Martin Porter who, in his spare time, campaigns on behalf of cyclists like himself. Martin, who cycles with helmet cameras etc, tried to persuade the police to prosecute. They refused, but a judge agreed that there was enough evidence to justify a private prosecution. Anyone can try to launch a private criminal prosecution – it will go ahead if they can afford to underwrite the cost of lawyers, and if the judge gives permission. Martin lost his case, but had his lawyer’s costs (c£25,000) paid by the state. The defendant’s costs in the case were covered by legal aid.  But if his disposal household income had been over £37,500, he would only have got a fraction of his legal fees back.  Matthew Scott barrister, suggested that private prosecutions like this should not be paid for by tax payers. The system we have is definitely unfair – our report on the repayment of private legal fees showed that some people lose all their life savings even if they are acquitted.  But in banning the repayment of private prosecution fees, would we be making two wrongs?

There is another crazy aspect of the legal fees system, and this also affects access to justice.  In magistrates’ courts only those who have a disposal household income of under £22,325 are likely to get legal aid, whatever the charge.  So many defendants end up representing themselves.  In the case of domestic violence, no-one wants the accused perpetrator to be let loose on cross examining the victim, usually their partner.  So judges often appoint an advocate, just to do the cross examination “on behalf” of the defendant.  So the advocate may just come in for an hour of a day long trial.  Meanwhile the unrepresented defendant needs to understand the charge, prepare their case, call and cross examine their own witnesses, and mitigate for themselves, totally on their own. While advocates are happy to get the cross examination work, they realise the absurdity of the system.  Why pay them to cross examine, when they could cross examine and do all the other defence work, for not much more money?  What makes the system even more absurd is that the state may be incurring other costs in not providing representation – delays in the trial, the risks of the defendants getting a more harsh sentence.

We have a topsy turvy legal fees system.  I think part of the reason for its topsy turvyness is that few people understand the system, and change is made in a piecemeal way.  So when income thresholds were brought in for legal aid in the magistrates’ court, I’m not convinced that the civil servants thought through the consequences – that those accused of domestic violence would be cross examining their (alleged) victims.  When judges protested that men were sometimes bullying their wives in court, a remedy was found.  It does prevent abuse in court, but it is just a sticking plaster for a flawed system.