Prosecutions: Defence Legal Costs

Lord Keen of Elie Excerpts

Wednesday 15th March 2017 Lords Chamber

[Lord Kirkhope of Harrogate (Con)]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I refer to my register entry as a solicitor.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, in 2012 the Government limited reimbursement of the legal cost of defendants who had been convicted of a criminal offence. Where legal costs are still allowed—for example, where the defendant was not eligible for legal aid—the recoverable costs are limited to the equivalent of legal aid rates. A review will be conducted by April 2018.

[Lord Kirkhope of Harrogate]

My noble and learned friend the Minister will be aware I am sure of the recent case of an 83 year-old gentleman of good character who was acquitted of violence against an intruder on his property, but was not permitted under current rules to claim his reasonable defence costs. How can we reconcile the presumption of innocence and an acquittal with the fact that claiming legal costs incurred to maintain innocence is no longer normally possible? I know that a review of these rules is taking place; I am delighted to hear my noble and learned friend confirm that. I would be grateful if he ensured that these and similar circumstances are part of such a review, bearing in mind that the present situation is not only a deterrent to innocent parties defending themselves, but positive encouragement to sloppy preparation and decision-taking by the prosecuting authorities.

[Lord Keen of Elie]

My Lords, we are of course aware of the particular case to which my noble friend refers. I observe that the individual in question did apply for legal aid, was eligible for it and was offered it, but declined to accept it. Had he accepted that offer he would have been required to make a relatively modest contribution, which he would have been able to recover upon being acquitted. However, the individual in question decided not to accept the offer of legal aid and instead instructed lawyers privately. In those circumstances he was not eligible for recovery of costs. Of course, all these matters will be subject to the review that is to be completed by April 2018.

[Lord Beecham (Lab)]

My Lords, I refer to my interests as, effectively, a non-practising solicitor. It would appear—I am advised by leading counsel—that a change was effected to the 1985 Act via Schedule 7 to the Legal Aid, Sentencing and Punishment of Offenders Act, which precluded an award of costs from central funds after an acquittal in the Crown Court, or after a successful appeal to the Court of Appeal. But where the acquittal occurs in magistrates’ court or an appeal is allowed in the Supreme Court, costs apparently may be allowed. Should not the practice be the same in all relevant courts, with the judiciary able to exercise its discretion?

--- Later in debate ---

[Lord Keen of Elie]

I am obliged to the noble Lord. The practice with regard to legal aid in magistrates’ court is different from that in the Crown Court. Of 126,000 cases that were committed to trial in the last year in the Crown Court, legal aid had been granted in more than 105,000. In those circumstances cost recovery can be made on acquittal. In the event that someone is not eligible for legal aid and is committed to the Crown Court, their costs are again recoverable, albeit they are limited to the legal aid rate.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, in all legal aid cases these regulations are straight out of Alice in Wonderland. If you are financially ineligible for legal aid, you must nevertheless apply for legal aid to get a determination that you are not eligible for it. Only then can you get your costs if you are acquitted, and then at only legal aid rates. If your solicitor does not have a legal aid contract you have to go to another solicitor who does, make the application, have it refused, and only then can you go back to your original solicitors. Will the noble and learned Lord assure us that there will be changes to this absurd regime under the review?

[Lord Keen of Elie]

I am obliged to the noble Lord. I can advise him that Alice would find it far more straightforward than he suggests. Clearly, it is not possible to determine your eligibility for legal aid unless you apply for it. In the event that you wish to apply for it you must go to a solicitor who is recognised for the purposes of the legal aid scheme. If, however, you decide thereafter that you are not eligible or are told you are not eligible and you decide to go to another lawyer, you may do so. It is a relatively straightforward scheme.

[Noble Lords]

Oh!

[Lord Keen of Elie]

My Lords, not only is it a well- ordered scheme, but I was advised of this at a recent tea party.

[Lord Deben (Con)]

Does my noble and learned friend accept that those of us who are not declaring an interest because we are not lawyers find all this ridiculous? That is because it is very hard to explain to people who have been prosecuted and who turn out to be entirely innocent, and are 82, that they cannot claim their costs. If people are innocent until proven guilty, not being able to claim their costs against people who have inconvenienced them—to say the least—does not sound to ordinary people like justice.

[Lord Keen of Elie]

I say with respect to my noble friend that it is necessary in this context to have regard to the public interest as well as the private interest of individuals. A balance has to be struck in that context. On the case he referred to of an 82 year-old, as I indicated earlier, the individual in question was offered legal aid having been eligible for it. Had he accepted that offer, he would have recovered his costs.

[Lord Faulks (Con)]

My Lords, the rule used to be far more straightforward. If you were acquitted of an offence, you were entitled to your costs, but the judge had a discretion not to award costs if you had somehow brought the prosecution upon you. Is that not the best way to approach matters?

[Lord Keen of Elie]

My Lords, there are clearly a variety of ways in which this matter can be addressed. Nevertheless, I fail to understand how someone who has been acquitted could be accused of having brought the prosecution on themselves.

[Lord Foulkes of Cumnock (Lab)]

My Lords, is it simpler in Scotland?

[Lord Keen of Elie]

My Lords, many things are simpler in Scotland. However, in Scotland there is an entirely distinct legal aid scheme which differs in a number of principal regards. Therefore, it is not comparable to the system in England and Wales.