Prior to 2012 if a defendant was acquitted after a criminal trial, they could claim back the fees they had paid for legal representation. However Schedule 7 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), made significant changes to the awarding of defence costs.
Initially when LASPO came into force, it completely removed the possibility of being able to claim defence costs in any Crown Court case. This is because legal aid was available for all defendants at the Crown Court (subject to paying a monthly contribution) and it was thought that if you chose to pay privately then the tax payer should not have to cover your expense, regardless of whether you were found not guilty.
In January 2014, further cuts were made and it was decided that legal aid would not be available in the Crown Court if you had a disposable household income of over lb37,500. This meant that many people would be paying a large sum of money for private legal representation with no hope of claiming this back if they were found not guilty. As a compromise the government decided that defence costs could be reimbursed, however they would only pay at legal aid rates; the same applies for trials in the Magistrates Court. Legal aid rates are a small percentage of what an average criminal solicitor charges meaning that the defendant loses out.
If you have a disposable household income of over lb37,500, you pay privately for your representation and are subsequently found not guilty at the Crown Court, you would think that you are all set to claim your legal costs at the reduced rate. However, there is a further hurdle. You must have previously submitted an application for legal aid and have been rejected due to 'financial ineligibility'. You must submit this application, which requires detailed financial information, even if you are certain that you will not be eligible.
Many private crime firms do not have a legal aid contract which means they cannot apply for legal aid on behalf of their clients. So if a defendant wants to have any hope of recouping some of their costs, they have to submit an application with a firm that offers legal aid. This obviously restricts the choice of legal representation quite a lot. It might be that the defendant has to apply for legal aid with one firm, only to move to their original choice of solicitor once their application has been refused. All in all, a complicated and time-wasting process.
In 2016, four university students were cleared of rape following extensive prosecution failings. One of the students was funded by legal aid, the remaining three racked up a bill of around lb220,000 between them for their legal costs. Under the current law, the defendants could only claim a fraction of this cost back.
A Tax on the Innocent? Contact our Criminal Defence Lawyers in London
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