Lord Ken MacDonald QC writing in the Evening Standard yesterday used the term rich criminals as if he were writing a column for the populist press. Most of the legal community would agree that frozen assets should be released more easily to fund the legal proceedings.
But how did we get here? Up until nearly two years ago, all defendants in the crown court were entitled to legal aid regardless of their means. Some chose to pay privately and if they were acquitted, and please note, if you are acquitted you are not an acquitted criminal but an innocent individual, and then you were entitled to reimbursement of your entire legal costs. You might think that it is only fair that if you have been falsely accused of a crime and had to pay to defend yourself that you should not be out of pocket at the end of the case if you are found not guilty.
It was felt by the Government that those who had legal aid and could afford it should be asked to pay a monthly contribution based upon their means; this could amount to thousands of pounds per month.
It is correct to say if the defendant was acquitted then they are entitled to ask for these contributions back. Sometimes the level of contribution assessed can be so high that defendants choose to pay privately instead. Thus a defendant can either choose to accept or reject the offer of legal aid with a contribution.
If they choose to reject the offer of legal aid and pay privately, then thanks to new legislation introduced by this government, the defendant loses the right to recover their legal costs. This government have placed defendants in a position whereby they are forced to accept legal aid in the crown court or face a loss of tens of thousands of pounds in defending themselves.
Let us take the example of a teacher accused of sexually assaulting a child, the defendant didn’t ask to be prosecuted and is eventually acquitted, however he and his partner’s joint income is such that they are required to pay a substantial contribution towards their legal costs, this would require them to take a re-mortgage on their home, he is acquitted and is able to repay the mortgage several months later when he receives his costs back. He still suffers the cost of the repayment interest.
If the teacher rejected the offer of legal aid and paid a private sum less or equal to the substantial legal aid contribution sought by the MOJ, and is acquitted, he does not receive his costs back and is saddled with the further mortgage debt.
Whether we are talking about a teacher or a Mayfair financier, the government has essentially given all defendants Hobson’s choice, “accept the offer of legal aid, or pay for your own defence, but if you choose the latter you pay win or lose”.
The scandal of legal aid for “criminals”, is not so much a scandal but a necessity brought about by the government’s determination to ensure that the costs are driven down.