Friends of Nigel Evans, the British House of Commons deputy speaker cleared of nine sexual offences, have complained that he has been financially wiped out by £130,000 of defence costs in the court case. And wags of a legal disposition have pointed out that he has only his own Tory-led Government to blame.
Conservative MP for Northampton South Brian Binley, a friend and flatmate of Evans, and Tory Bob Stewart have both pointed out Evans must pay his defence costs even though he was acquitted of all charges – and the Crown Prosecution Service criticised for pursuing them. And Evans himself now says the state should pay. But none of them has made the link with Section 16A of the Prosecution of Offences Act, added by amendment to the act by the notorious Legal Aid Act (LASPO) in 2012.
This stops defence costs being awarded for those not legally aided except under limited circumstances. Costs can be awarded:
- when a charge has not been proceeded with or it is dismissed by magistrates (S16(1));
- when someone convicted by magistrates has the conviction set aside on appeal to the Crown Court or is given a less severe punishment (S16(3));
- where the Court of Appeal allows a verdict of not guilty by reason of insanity or allows an appeal in cases of insanity or unfitness to plead under the Criminal Appeal Act 1968 (S16(4));
- and where the legal costs were incurred pursuant to proceedings in the Supreme Court (S16A(5)).
This leaves one or two big gaps – in particular for someone who is as innocent as the driven snow (as Evans surely is) and has proved the point thanks to excellent (and expensive) legal assistance in the Crown Court before a jury of his peers. The situation is summed up in this legal note:
“For proceedings in the Magistrates’ Court, it will remain the case that legal costs for an acquitted individual can be included in a DCO [Defendants Costs Order]. However, in proceedings in the Crown Court, legal costs can only be included in a DCO when the proceedings form an appeal of conviction or sentence, to the Crown from the Magistrates’ Court. Where the proceedings in question are proceedings before the Crown Court on indictment, legal costs cannot be included in a DCO.” (St Ives Chambers: When legal costs can be included pdf)
Rape is one of many serious charges that are dealt with by the Crown Court rather than magistrates. An acquitted suspect cannot get his costs back. This seems unfair and illogical – and seemed so to Plaid Cymru MP Elfyn Llwyd when he sought to amend LASPO on S 16A to remove the exclusion.
Jonathan Djanogly, Parliamentary Under-Secretary of State for Justice, rejected the amendment saying: “Legal costs are lawyers’ fees and disbursements, including expert witness costs. The cost to the taxpayer of the amendment would be about £40 million.” He added: “We intend to strike a fair balance between refunding legal costs to acquitted defendants or successful appellants who have paid privately and protecting the taxpayer from picking up the bill for legal costs, which on average are three to four times more expensive than legal aid costs; in some cases, the difference is even more.”
This even though the Conservative Attorney General, Dominic Grieve, said in opposition: “If a person wishes to be represented privately or has to be, then they are entitled at the end of criminal proceedings in which they are acquitted to recover their reasonable costs in exactly the same way as they would be able to do in civil proceedings.” He means that in civil proceedings costs can be recovered from the losing party – and so they should be when the state’s prosecuting authority in effect lose their case.
Djanogly said simply the Government, once in office, had changed its mind. We can’t afford to pay expensive lawyers hired at two or three times legal aid rates, and in particular “we cannot afford to fund the dream team defence when someone wealthy has engaged top lawyers to defend relatively minor cases at rates many times higher than legal aid”.
Llwyd made the point that cost orders were in the past strictly vetted to ensure they were not exorbitant. Previously (for cases commencing before 1 October 2012) cost orders could be made by judges for “costs reasonably incurred”. But the Government’s view seems to be couched in terms of an attack on rich people luxuriating in their innocence at vast expense to the public purse. Sadly, of course, not all those who appear for the defence in the Crown Court are Silk-style dream teams, nor are all cases as high profile as Evans’s. Many ordinary folk do not qualify for legal aid – and a deputy speaker’s salary of £102,098 doesn’t go far these days – even with all those expenses on top. (Evans has lost £30,000-odd of that salary when he resigned as deputy speaker – just as many “ordianary” people take a financial hit when they are accused of crimes.)
What can be done? As it happens LASPO allows the Secretary of State for Justice enormous “Henry the Eighth” powers to change pretty much all of the provisions on defence costs (S16A(6) of the substantive act). But it’s unlikely he’ll risk it after the expenses battering over Maria Miller. So friends of Nigel Evans may have to simply dig deep into their own pockets to help him out.
A barrister, Jon Mack, has written to Bob Stewart explaining the situation here. He quotes former Lord Chancellor Ken Clarke thus:
“I do not believe the public understand a system that can pay out millions of pounds from taxpayer- provided central funds to compensate acquitted companies and wealthy people for their legal costs, whether that involves the £21 million paid to the firms in the Hatfield rail crash case, the £18 million paid to a number of pharmaceutical firms accused of price fixing, or the hundreds of thousands of pounds that have on occasion gone to celebrities accused of affray, assault and other crimes. Part 2 of [LASPO] therefore establishes that defendants who decline legal aid and pay privately in the higher criminal courts will no longer be able to recover the costs of an expensive private lawyer if acquitted[...]” (HC Debate, 29 Jun 2011, c995 – with one Nigel Evans in the Speaker’s chair…)
Head of Legal knocks on the head the idea that Evans’s prosecution was a manifest error here
See also: Maria Miller and parliamentary privilege.
For more political sexual shenanigans: Rennard could and should have been put through a disciplinary procedure.
On Henry VIII clauses: Lord Chancellor gets his claws into judicial appointments.