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Schadenfreude is not an attractive thing to witness, but there is a lot of it about right now on the internet as commentators react to Nigel Evans’s complaint that his life savings have been spent on his successful defence of the serious criminal accusations he had the misfortune to face. He wants the Criminal Prosecution Service (CPS) to pay back the £130,000 he has spent on legal fees.
Sadly for the former deputy speaker, he has fallen foul of changes made by the Legal Aid Sentencing and Prosecution of Offenders Act 2012 (LASPO), one part of which eliminated the right of those not in receipt of legal aid to recover their costs of defending criminal allegations made against them. The current rules are that individuals can only recover costs in very limited circumstances (and despite the seriousness of the charges faced by Mr Evans, the allegations against him are not among them). Mr Evans is now counting the cost of that change.
Neither legal aid nor reimbursement of successful criminal defence costs is available to a company, no matter how small. The legal cost of proving itself not guilty of charges in relation to, for example, health and safety, trading standards or environmental issues could easily destroy an SME. It is critical that companies try to cover themselves in advance for such matters by taking out insurance, but that may not be possible in every circumstance.
Of course, it isn’t fair to blame Mr Evans personally for passing that Act – he sat in the Speaker’s chair for much of the debate so wasn’t in a position to express a view in Parliament, let alone vote for or against it. However, it was a change pushed through by his party (alongside sweeping restrictions in the availability of legal aid for many types of civil claim) and therefore, for many commentators, it grates to see his party colleagues supporting his claim that his legal fees should be reimbursed. This is exactly the sort of unfairness that the legal profession predicted at the time that LASPO was on its way through parliament.
Mr Evans isn’t the only person in the public eye facing the same problem at the moment, of course. Dave Lee Travis has made similar comments, saying that the cost of his defence against historic sex charges (for which he has been acquitted on all but one, and that final one is to be re-tried) has cost him his home.
Criminal legal aid is means tested – it can’t be said that Mr Evans and DLT could instead have chosen to instruct a local lawyer with a criminal legal aid franchise. After taking account of the defendant’s domestic circumstances and making an allowance (not necessarily the full amount) for rent or housing costs, anyone whose household annual income is more than £12,475 will have to make a contribution to their defence costs, and anyone with an annual income of more than £22,325 will not be eligible at all. It isn’t just MPs and DJs therefore, who were hurt by LASPO, but anyone with even very modest means and the misfortune to face false accusations.
It also isn’t fair to ask the CPS to pay back Mr Evans’ costs just because he was, in the end, found not guilty. The CPS has a tough role, deciding which allegations should be tried and which aren’t strong enough. If they only took cast-iron cases to Court, what would be the point of the jury at all? This wasn’t a case dismissed by the Judge on the basis that there was insufficient evidence – “no case to answer”. Consider how many guilty defendants would escape responsibility for their crimes if the CPS decided not to prosecute if there was only a 90% or 80% chance of success?
Unfortunately, when passing LASPO, not even the ministers proposing the Bill seemed to appreciate how the system they were replacing actually worked. In answer to questions on LASPO at Committee stage, Jonathon Djanogly stated “we cannot afford to fund the dream team defence when someone wealthy has engaged top lawyers to defend relatively minor cases at rates many times higher than legal aid”. However, under the old rules, an innocent defendant could only recover their “reasonable” legal costs – following the not guilty verdict there was a specialised and experienced department who used to go over those costs and knock back anything that they felt was over the top in the circumstances – in other words, they vetted the claims to make sure that the work that had been done was reasonable and proportionate and not a result of a desire by a rich defendant to assemble a “dream team” of lawyers. I wonder what Mr Djanogly now thinks of Nigel Evans’ travails?
If there is ever a change in the law, the old position was not a bad one – it had the basic principle of fairness behind it, and a system of checks and balances to ensure it wasn’t abused. But are politicians ever brave enough to admit that they were wrong?