Defence Cost Orders – Right to a Fair Trial ?

The Cost of Justice ……Time to Find a Fixed Cost Lawyer


If you run a Company or have assets, which place you over the legal aid threshold, then you should be very worried by the changes brought about by Legal Aid, Sentencing and Punishment of Offenders Act 2012.


From the 1st October traditional Defence cost orders which you could get made if you were acquitted in a criminal trial were drastically cut to the point of non-existence for serious offences.


First a step back in time. If you faced proceedings in the Crown Court for a case such as Fraud, business offences, Sexual allegations or assaults you might have felt confident in instructing your solicitors and paying quite a lot of legal fees in expectation that when you were acquitted you would recover these back with a “Defence cost order “ an order that your costs should be paid from central funds.


That has now been stopped for cases commenced after 1st October and now the costs available are seriously limited.


Magistrates Court – If you are lucky enough to have the sort of less serious case that stays in the magistrate’s court then if acquitted and you did not qualify for legal aid then you can still get an order. However it’s only at legal aid rates. This may prove to be a large gulf between what hourly rate your lawyers are charging you and what you receive back form the Court with a disparity as much as £150 per hour of work.


Crown Court – For most Company’s and Individuals a successful acquittal will lead to no costs being recovered at all. As a result you will meet the whole of your costs in defending yourself.


Similarly costs are removed from the Court of Appeal and only limited funding is available for the Supreme Court.


Its difficult not to envisage this will cause a great sense of grievance especially where you consider the case should never have been brought in the first place.


Arguably this draconian legislation amounts to breach of Article 6 (3) (b) and (c) of the European Convention of Humans Rights in respect of a right to a fair trial. However that is an argument, which will equally need to be pursued at length against the Government with considerable cost.


So if a challenge against these new rules is a matter for another day, the central question for any individual facing proceedings is what they should do now?


The first port of call for an individual must be to see what your legal aid contribution would be as at least if you are acquitted you can recover your contributions back.


The downside of course is that contributions can prove to be very high and you will be expected to pay without fail or face a visit from the Bailiff’s and serious consequences in respect of your case.


But what if the contribution is just too high what are you to do?


Be unrepresented? Well this is a possibility but not a very palatable one and many unrepresented persons in the criminal courts will find their inexperience in a complex and challenging arena taken advantage of by the adversarial system.


The only real choice may be therefore find a lawyer to undertake the work for the funding you have available to pay. That may also prove to be a difficult process, as many lawyers remain guarded about the fees they will charge and still operate under an archaic system of hourly rates rather than being upfront about costs.


Therefore if you are going to fund your case you should look for a lawyer who will commit to a fixed price for your case and at least you can then proceed with confidence as to what it will cost and get on with the main job of defending yourself or your company.


It seems the days of “fat cat lawyers” charging astronomical sums to individuals and specially those in companies facing criminal trials is gone.


The time has come for fixed and realistic pricing for legal services with no hidden costs.

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