Friday, 11 April 2014

Means test for Crown Court legal aid

Even where a defendant is found not guilty, he or she may face ruinous costs after acquittal.

Nigel Evans MP (pictured), a former Deputy Speaker of the House of Commons, was acquitted of serious sexual offences - BBC News 10th April 2014. Mr Evans was first arrested on 4th May 2013 and he was acquitted on 10th April 2014.  It is now reported that Mr Evans will have to pay in the region of £100,000 costs - Telegraph 11th April 2014.   The Telegraph article states:

The Crown Prosecution Service’s “disproportionate” decision to use a top barrister in the case against Nigel Evans has left the MP with a huge legal bill, even though he was cleared of all charges.  Mr Evans, 56, was forced to pay more than £100,000 in legal bills to defend himself against a string of sex assault allegations and despite the not guilty verdicts will be unable to reclaim any of the money.  His solicitor, Daniel Burke, said the CPS’s decision to instruct Senior Treasury Counsel, Mark Heywood QC, was above and beyond what would happen in normal cases where the defendant was not in the public eye.  He said had Mr Evans relied on legal aid to fund his defence case, he would not have had the sort of representation to challenge the prosecution team on an equal footing.  Mr Burke suggested the decision had been based on Mr Evans’s profile rather than the requirements of the case.

Legal aid in the Crown Court is now means tested.  A defendant's household disposable income must be under £37,500 in order to be granted legal aid.  If a defendant's annual household disposable income is £37,500 or more then he would have to pay all his defence costs privately.  Where a defendant is eligible for legal aid then a means test considers income and capital assets and he may be liable for contributions towards costs either during the proceedings or at the end of the case.  (Note: the financial eligibility threshold does not apply to appeals or committal for sentence cases).

Costs in the Nigel Evans case will have been inflated by the decision of the Crown Prosecution Service to brief a Queens Counsel to prosecute the case.  I doubt that I am alone in thinking that those acquitted of offences ought generally not to have to pay any costs at all.  However that position is perhaps too idealistic for modern times but it certainly seems very unfair that a defendant has to pay additional costs because of the use by the Crown of Queens Counsel.

Criminal Legal Aid reform for the Crown Court was implemented on 27th January 2014 - see Assessment of eligibility.  Readers should note the possibility of Recovery of Defence Costs Orders but such recovery is limited to legal aid rates - Law Society 27th January 2014

A good and short article on this matter is by Jenny McCartney - Telegraph 12th April 2014 ' ... if someone not eligible for legal aid (anyone on more than £37,500 a year) has to pay for their own representation, a nasty shock awaits: even if the defendant is acquitted of all charges, there is now no automatic reimbursement of costs. To recoup anything, such defendants must first apply for legal aid, be rejected, and hire a lawyer privately; yet upon acquittal they can then claim back costs only at legal aid rates.

Since the CPS unusually instructed senior Treasury Counsel in his case, Mr Evans understandably felt obliged to use representation of equal quality. I understand that he has been left with a £100,000 bill for which no refund is available, despite his acquittal. If he and his fellow MPs believe that to be unjust, they might want to have a word with their parliamentary colleague who seemingly supports the principle of making defendants pay for the privilege of being found not guilty: the Justice Secretary, Chris Grayling.'


In the light of this case, even some MPs are seeing the fundamental injustice in requiring individuals to pay their own defence costs if they are acquitted - Express - The Nigel Evans saga shows legal aid needs to be reformed


  1. May I respectfully agree. There but for the grace of god.....

  2. Another worthy article which ignores the elephant kn the room: which is that a woman (usually) who claims to be the victim of d.v. gets legal aid while a man (usually) against whom the allegation is made does not. Level playing field, anybody?

  3. The discussion of his costs does overlook one factor: as a Conservative MP, he presumably supported the enabling legislation that allowed this to happen. The biter bit!