Law Society launches judicial review of Government's criminal defence costs

The Law Society has launched judicial review proceedings against the recent changes which mean that successful defendants in criminal cases can only recover their costs at legal aid rates and not costs actually incurred.

The Law Society is challenging Regulation 8 of the Costs in Criminal Cases Regulations 2009, which came into force on 31st October 2009, together with rates and scales determined by the Lord Chancellor. They say that it is necessary for defendants to be able to defend themselves without the threat of facing a huge bill for costs at the end.

The effect of the current regulation is that many defendants cannot afford to take the risk of privately acquiring a defence team, other than those funded by legal aid, and being left to bear the cost at the end. The Law Society says that this is grossly unfair and will lead to miscarriages of justice. Furthermore there is an inherent unfairness between this regime and the regime the prosecution use to reclaim their costs. They can claim compensation for costs that they have properly incurred which can work out at much more than legal aid rates.

10 Downing Street has issued the following statement in response to the action;

“While the Government accepts that individuals who are acquitted in the magistrates’ court should continue to have access to Central Funds, it is essential that we also target our resources effectively, secure value for money for the taxpayer and control areas of overspend in our budget.

The Government does not believe that defendants will be more likely to plead guilty to offences they would otherwise deny. Defendants who pay for representation privately do so without certainty that they will be acquitted. If acquitted, there is no guarantee that any particular sum would be assessed as reasonable.

We believe that the rates we pay for criminal cases under legal aid are both fair and sustainable and should be available on the open market.

We believe that lawyers are able to provide a reasonable service at legal aid rates, but if a defendant wants to have, for example, a senior partner’s undivided attention, he may be prepared to pay more for a “premium service”, but would have to understand that he would not recover all of these costs.”

We strongly opposed these changes but realised that with a £65 million budget to cut, the result of the so called consultation was never in doubt.