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Defendants Costs De Ja Vu – The government plans (again) to penalise motorists with harsh costs rules even when they are proved innocent

August 16, 2011 by in category News with 0 and 0

Please take some time to sign and share this petition:


Below is a more detailed explanation of what this issue is about.

Defendants Costs De Ja Vu- The government plans (again) to penalise motorists with harsh costs rules even when they are proved innocent

My clients are often astonished that even once they have been proven innocent at court they are entitled to receive no compensation for the time and inconvenience caused  by the prosecution they have had to fight. For every day that they may have had to spend in court and lose a day’s earnings, there is no system for him to recoup his true expenses. If he loses his licence as a result of a perverse Magistrates’ Court decision (of which there are many) there is no scheme to compensate him for the loss of use of his vehicle whilst he had to fight for a disqualification to be lifted and clear his name by way of an appeal.

However, at the moment at least, once the case has been won, he can rest assured that most of his legal bill will be paid from  Court Central Funds. I say most  because a defendant who is acquitted of a crime or has their conviction overturned on appeal can apply for a defendant’s costs order (DCO). This order means they have a strict time limit to present their legal bill to a central government run unit (The National Taxing Team) to scrutinise the bill and decide the amount that should be reimbursed to the defendant. This system ensures that public funds are only reimbursed for reasonable and necessary legal fees and  defendants  and their lawyers do not profit by submitting outlandish and unreasonable bills. The hourly rates currently granted are consistent with the rates allowed in other areas of law such as civil litigation.

In June 2010 those involved in the criminal justice system breathed a huge sigh of relief when the High Court ruled that regulations introduced at the end of 2009 intended to cap an acquitted defendant’s right to reclaim their legal costs from the court were unlawful. The rules were first introduced following a Ministry of Justice consultation that was met with overwhelming opposition from numerous orgnanisations involved in the defence of those hauled through the courts, namely The Law Society, The Bar Association, The Association of British Drivers, The Health and Safety Lawyers Association and my own organisation, AMOL (Association of Motor Offence Lawyers). The rules did not only affect motoring cases but because most motoring cases are tried in the Magistrates’ Court and do not often involve a risk of prison, legal aid is almost always unavailable to defend motoring prosecutions.

Back in September 2009 as President of AMOL, I launched an e-petition to raise awareness of the government’s plans. In less than 2 months (which was the only time we had before the rules were introduced) 22,000 people signed the petition.

The MOJ claimed that the government wanted to achieve a £21 million costs saving but there were many issues they failed to address and I intend to outline these and many more over the next few weeks.

When the High Court ruled that the government‘s regulations were unlawful, the newly elected coalition confirmed  it would not appeal this decision. Perhaps they wanted to lower the profile of  their embarrassing defeat and £200,000 costs ordered to the Law Society? Are these funds included in the central funds budget I wonder?!

So, the status quo was returned. Most criminal defence solicitors still face an uphill struggle in the courts partly because when up against a crown prosecution service with no cap on their own resources, it can be difficult when representing a defendant with limited  means, especially if there are numerous adjournments and other unanticipated expenses along the way.

I felt very proud of what we had managed to achieve in 2010. Whlle my petition was certainly not the reason the regulations were repealed, in apathetic times we stood up to a grossly unfair proposition.

So when I learned of some proposals tagged onto the end of Ken Clarke’s parliamentary bill I was devastated to say the least. Because these proposals have been included alongside proposals to cut the legal aid budget which is an entirely separate cause altogether, I suspect the government were hoping they would be lost in the detail.  From the lack of knowledge of the proposals amongst my contemporaries, they succeeded!

So this article and more to follow over the next few months is intended to ensure that you are aware of what this fight is really about, who it will affect, and also to dispel the myths and propoaganda the government would like you to believe and their spin doctors have clearly focussed upon when the few journalists who have covered this story to date have asked for their comments.

What are the proposals?

Thankfully this time around, these proposals will be debated in Parliament. Last time they were introduced with no debate. If passed by Parliament, they are expected to become law in or around April 2012 and will mean:

1. There will be no Defendants’ Costs Orders in any circumstances for companies/corporate bodies etc – they will have to bear the cost themselves or insure. This will affect companies prosecuted for health and safety matters and will also affect companies prosecuted by VOSA and for non-VOSA matters such as failing to furnish information.
2. The government have also proposed that there be no Defendants’ Costs Orders for individuals in the Crown Court as contributory legal aid is available in all case – In other words, you are expected to therefore take legal aid or bear teh cost entirely for your own privately paid lawyer.
3. In the Magistrates’ Court (where the majority of motoring cases are heard) Defendants’ Costs Orders will be available for acquitted individuals but these will be capped at legal aid hourly rates. Currently legal aid rates are around £60.00 per hour. My firm charges significantly more than this, not out of greed but to ensure I can pay my staff the market rate and we can do a thorough and properly prepared job for each and every client who instructs us.

Isn’t this about greedy lawyers and their fees – What are the different hourly rates?

The government would be delighted to hear people’s cries about fat cat lawyers and for this campaign to be tarred with that old chestnut! Don’t get me wrong, I make a decent living as do many other lawyers like me but we are not talking in terms of the fat cat types who pay themselves bonuses akin to a lottery win.

Defence lawyers are not attracted to this area of law because of the financial rewards because historically this has always been one of the worst paid areas in which to specialise. Lawyers are an easy target though because there are those who clearly do charge exorbitant fees who give the rest of us a bad name.

One thing to bear in mind when considering the hourly rates we charge is the majority of solicitors in the field of criminal law remain on salaries well below that of accountants, doctors and definitely bankers! The rates currently allowed by the National Taxing Team when our files and bills are scrutinised are guideline rates set for both criminal and civil litigation.

What can we do to protect against this?

Well, for a start, you can sign and share this new petition on the number 10 site:


We have all seen how social media has played a huge part in so many campaigns over recent years, please tweet, share on facebook or simply email to anyone you know who drives! This could affect anyone with a driving licence because you could be wrongly prosecuted just like my client, Mr Lucky, featured on my recent blog on confused.com.

There are more campaigning plans to be announced in the future but for now, please take the simple action of signing the petition and preserving our justice system which already has many unfair procedures heavily weighted against the accused in place.

Many people have said that with all of the other budget cuts going on at the moment, people won’t care enough about this campaign to support it. I disagree. I do not believe in giving up because there are other fights to be had. So what if the only people who fully understand the serious repurcussions of these proposals are a minority of lawyers and ordinary members of the public? In the words of 19th century lawyer, Clarence Darrow “Lost causes are the only ones worth fighting for.” I intend to fight and win to save the principle of “equality or arms” in the courtroom.

Jeanette Miller aka Miss Justice

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