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6 June 2014 / by / in

The Price of Innocence

Not so very long ago, acquitted defendants whose lawyers were not funded by legal aid could usually recover most of their legal costs from the state. Things changed with schedule 7 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 introduced by the present coalition government.

Now innocence comes at a price. Companies are not able to recover any costs when acquitted of criminal offences. Individuals are in the same boat if they decide not to take up, or are not eligible for, legal aid.

There had been no interest in this seismic change from the mainstream media until the former House of Commons deputy speaker Nigel Evans was found not guilty of a string
of alleged sex offences. He told the press that his legal bill of £130,000 had cost him his entire life savings.

Although Mr Evans voted for the 2012 Act he explained to the Evening Standard: “I see things through the prism of having gone through sheer hell… I believe people who are dragged through the courts, who are acquitted, should get reasonable legal costs back.”

So, are there no circumstances where legal costs can be recovered?  Not quite.

Section 19(1) of the Prosecution of Offences Act 1985 and regulation 3 of the Costs in Criminal Cases (General Regulations) 1986 provide that the prosecution (eg the Crown
Prosecution Service (CPS)) may be ordered to pay defence costs where its conduct is found to be improper or unnecessary.

The leading case on this provision is the Divisional Court decision in DPP v Denning [1991] 2 QB 532, 94 Cr App R 272 where Lord Justice Nolan said: “… the word ‘improper’ in this context does not necessarily connote some grave impropriety. Used, as it is, in conjunction with the word ‘unnecessary’ it is, in my judgment, intended to cover an act or omission which would not have occurred if the party concerned had conducted his case properly.”

In the decision of the Divisional Court in May 2014 in Singh v Ealing Magistrates’ Court and the CPS [2014] EWHC 1443 (Admin), Mr Justice Bean observed: “A single mistake, if it can be shown to have caused the defendant to incur costs, is enough to trigger the court’s discretion to make an order. We emphasise, however, that section 19(1) [of the Prosecution of Offences Act 1985] creates a discretion, not a duty, and that the jurisdiction is highly fact-sensitive. The court is not bound to make an order in every case of a mistake causing costs to be incurred. If there is a satisfactory explanation for the mistake, the court may decide that it would not be just to make any order.”

This year has seen applications for costs following failed criminal prosecutions relating to work- related deaths. In R v Counsell, the defendant, who conducted a firework display where the prosecution alleged that drifting smoke from it had contributed to a motorway pile up on the M5, was on the direction of the judge acquitted of a health and safety offence (having originally been charged with manslaughter). Here the judge was not prepared to exercise his discretion to award costs.

In R v Binning the judge dismissed a manslaughter case because he ruled the defendant was not the employer of the deceased who fell through a fragile roof. The prosecution had been
informed of this fact at the outset of the investigation. In this case the judge decided it was appropriate to make a costs order in the defendant’s favour against the CPS.

Given the current climate of soaring fines in health and safety cases and the greater emphasis on prosecuting directors and senior individuals in their own right, in the future expect there to be more contested cases and applications for costs against prosecutors following successful defences.

Originally published in the June 2014 edition of SHP magazine – http://www.shponline.co.uk/

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