At present, individuals acquitted of a criminal charge in a Crown Court are able to claim back out-of-pocket legal expenses. However the government has launched a consultation paper, CP28/08, The Award of Costs from Central Funds in Criminal Cases, downloadable from


Applicable to England and Wales, it makes proposals some of which are detailed and even complex*. Essentially it is considering ways of removing this right to full reimbursement as a cost-cutting measure. At risk are those who make use of reasonable legal representation and either don’t qualify for legal aid (e.g. because they have a modest income or some savings) or those who fail to apply for it.


It is imprecise over the possible savings, but has some strange inconsistencies. For instance, it promises to uphold the right to an interpreter (costing £12 million a year) which would help an accused person to understand a charge and defend themselves, but might deny the right to representation and thus affect an innocent layman’s ability to understand the law. (Defence cost savings might be estimated at nearer £8m).


Ironically both principles are upheld by the (non-EU) European Convention on Human Rights, 1950, which the government claims to respect in its Human Rights Act, 1998.


Some argue that defendants do not need lawyers and can turn to Court Duty Solicitors and Legal Advisers (aka Court Clerks) for advice – in the parallel context of a Magistrates’ Court – however the government does not propose to push those who qualify for legal aid into this alternative, another inconsistency.



Prosecutions can cover relatively ordinary matters such as motoring where the authorities have been found to be less than perfect. Legislation has been wrongly implemented, for instance some speed measuring devices have been found to be unsound. 


On The Road magazine (Winter 2008/9) put the typical cost of fighting alleged speeding and other motoring offences at around £1,500. If members of the public are unable to recoup out-of-pocket legal costs, they may wrongly plead guilty as the price of innocence might be higher than a fine. The conviction statistics may be massaged up, but justice will not be done! 


The government was recently exposed as having created roughly one new criminal offence per day – over 3,600 since 1997, with over 1,000 carrying a possible jail sentence. As a majority of our new laws now appear to be made in Brussels, these figures can only rise while we suffer membership of the EU.


The difficulty in observing increasingly complex and unreasonable laws (cf. the Metric Martyrs) will create criminals out of previously law-abiding citizens.


Yet while the government poses as being ‘tough on crime’, many anti-social offenders are let off with a caution. Hardened criminals are released early from prison to inflict themselves on society.



One in five Crown Court cases (20.7%) gives an innocent verdict, often on a judge’s advice.  (Source: Ministry of Justice, 2007/8, failed prosecution rate, see heading ’Ineffective Trials’ This is in spite of the obligation upon Crown Prosecution Service officials only to prosecute where there is a reasonable prospect of securing a conviction.



Ironically, while Jack Straw’s Ministry of Justice wants an effective deterrent to members of the public defending themselves, he recently urged his government departments to fight every compensation claim!  (Daily Mail, 8.12.08).


He notes 'People concede these claims because the cost of fighting them could be high. My view is that unless you have good reason to concede, you should fight each, to discourage others.'


This is not the first time that the government has been accused of tampering with our rights. In 1999, a coalition of organisations including the Law Society opposed aspects of the earlier Access to Justice Bill.


“The government says this bill is about making access to justice available to more people. It will take away help from people who need it most…. Under the bill, the right to justice will remain in theory, but is not guaranteed in practice” (BBC, 22.6.99)



If the issue is cost-cutting, then the government should stop being penny-wise, euro-foolish – in 2008, it voted through an extra £1 billion a year to the EU for the period 2007-13, effectively a subsidy to our competitors. The Taxpayers’ Alliance has identified widespread cases of public money being wasted, and many members of the public would also question the cost of foreign wars, bailing out bankers, etc.


Lord Bach, a Justice Minister, would have us believe: “It is extremely important that we target our resources effectively across Government, particularly in the current financial climate”


The answer is not to introduce a pernicious tax on innocence, particularly those thrifty enough to build some savings.



The government should remember the pledge from 1997 that it was elected to serve the people. And not the other way round.


The official consultation closed on 29 January 2009.



* Reading this document is strongly recommended for detail that might affect individual circumstances, for instance it also covers magistrates’ courts and appeals. There is also a complex ‘Interests of Justice’ test which might go some way towards providing financial safeguards in some cases, such as where there is a prospect of imprisonment, or the use of expert witnesses. However some of the categories are very subjective and will be interpreted by officials with a remit to keep costs down.


The Law Society’s comments in a parallel consultation on means testing raise some serious issues, and are worth reading on:

(assemble text as single line URL as needed)


© New Alliance, 2009. This sheet may be freely copied or circulated for non-commercial purposes so long as the source is acknowledged.


This page updated: 5 February 2009


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