Legal Aid and Costs

In this chapter, we examine briefly some of the financial aspects of criminal litigation.

Advice and assistance for individuals in custody

Section 13 of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012 provides that:

• (1) Initial advice and initial assistance are to be available ... to an individual who is arrested and held in custody at a police station or other premises if the Director [of Legal Aid Casework] has determined that the individual qualifies for such advice and assistance ...
• (2) The Director must make a determination under this section having regard, in particular, to the interests of justice.

Legal aid in criminal proceedings

Section 14 of LASPO defines ‘criminal proceedings’ as including:

[a) proceedings before a court for dealing with an individual accused of an offence;

(b) proceedings before a court for dealing with an individual convicted of an offence, including proceedings in respect of a sentence or order.

By virtue of s. 17(1) of LASPO, the decision whether an individual qualifies for legal aid depends on two criteria:

• • a means test (s.21); and
• • the interests of justice.

The Criminal Legal Aid (General) Regulations 2013 (SI 2013/9) make detailed provision for determinations in relation to whether an individual qualifies for criminal legal aid. In particular, para.29(l) provides that where legal aid is refused on the ground that the interests of justice do not require representation to be made available before the magistrates’ court, an appeal lies to the magistrates’ court, and para.30 makes provision for appeal to the Crown Court against refusal of legal aid in a Crown Court case.

Further details about the legal aid scheme are set out in a number of other statutory instruments.

The interests of justice test

Section 17(2) of LASPO sets out the basis of the 'interests of justice’ test:

In deciding what the interests of justice consist of for the purposes of such a determination, the following factors must be taken into account -

[a] whether, if any matter arising in the proceedings is decided against the individual, the individual would be likely to lose his or her liberty or livelihood or to suffer serious damage to his or her reputation;

(b) whether the determination of any matter arising in the proceedings may involve consideration of a substantial question of law;

• (c) whether the individual may be unable to understand the proceedings or to state his or her own case;
• (d) whether the proceedings may involve the tracing, interviewing or expert cross-examination of witnesses on behalf of the individual; and
• (e) whether it is in the interests of another person that the individual be represented.

These factors are the same as those that were considered under earlier legislation and so earlier case law remains relevant.

When considering whether there is a risk of loss of liberty, there must be a real (not merely theoretical) risk of a custodial sentence being imposed. It is not enough that the offence carries a custodial sentence: the decision-maker must consider whether a custodial sentence might actually be imposed in this particular case R (Sonn Macmillan Solicitors) v Gray’s Magistrates' Court [2006] EWHC 1103 (Admin).

In R v Liverpool City Magistrates ex p McGhee (1994) 1S8 JP 27S, the Divisional Court rejected the contention that what would now be a community order with an unpaid work requirement could be regarded as a sentence which deprives the accused of liberty.

The factor which refers to 'expert cross-examination of witnesses’ addresses the need to have an advocate cross-examination of witnesses, not cross-examination of expert witnesses (R v Liverpool City Magistrates ex p McGhee).

The provision of legal aid is a vital aspect of the right to a fair trial guaranteed by Art.6 of the European Convention on Human Rights. Article 6(3) includes the following rights:

lb) to have adequate time and facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.

The means test

The Criminal Legal Aid (Financial Resources) Regulations 2013 (SI 2013/471) makeprovision in relation to the circumstances in which an individual’s financial resources are such that he/she is eligible for criminal legal aid. Part 2 makes provision in relation to the financial eligibility of an individual for advice and assistance provided under s. 1 5 of LASPO (advice and assistance for criminal proceedings), and Part 3 makes provision in relation to the financial eligibility for representation provided under s. 16 (representation in criminal proceedings).

The means test takes account of the applicant’s income, family circumstances (e.g. number of children) and essential living costs (e.g. mortgage or rent). It should be noted that someone in receipt of ‘qualifying benefits’ (including income support, income-based jobseeker’s allowance and universal credit) is automatically deemed to satisfy the means test.

Contribution orders

The Criminal Legal Aid (Contribution Orders) Regulations 2013 (SI 2013/483) make provision in relation to the liability of individuals who are in receipt of legal aid to make a payment in connection with the provision of such representation, based on an assessment of their financial resources. These orders apply only to Crown Court trials, and when the Crown Court is hearing appeals from magistrates’ courts.

Recovery of Defence Costs Orders

The Criminal Legal Aid (Recovery of Defence Costs Orders) Regulations 2013 (SI 2013/511) provide that where an individual receives legal aid for representation in relation to criminal proceedings before any court other than the magistrates’ court or the Crown Court (and so limited to proceedings in the Divisional Court, Court of Appeal and Supreme Court), the court hearing the proceedings must (unless an exception applies) make a determination at the conclusion of the proceedings requiring the individual to pay some or all of the cost of his/ her representation.

Costs orders

The powers of the criminal courts to award costs are contained in ss. 16-21 of the Prosecution of Offences Act 1985 and the Costs in Criminal Cases (General) Regulations 1986 (SI 1986/1335).

Defendant’s costs orders

Section 16 empowers the court to make a defendant’s costs order in any of the following circumstances:

• • the prosecution decide not to proceed with a charge in the magistrates’ court;
• • the defendant is acquitted following summary trial;
• • the prosecution at the Crown Court offer no evidence or ask that all counts remain on the file marked not to be proceeded with widiout leave;
• • the defendant is acquitted following trial on indictment;
• • the defendant successfully appeals against conviction and/or sentence.

However, by virtue of S.16A of the Act, individuals are able to recover their legal costs through a defendant’s costs order made in respect of proceedings in a magistrates’ court but not legal costs incurred in respect of Crown Court proceedings except where those costs related to an appeal against conviction and/or sentence from the magistrates’ court or, in the case of a trial on indictment, the defendant was ineligible for legal aid owing to his means. For these purposes, legal costs are defined as 'fees, charges, disbursements and other amounts payable in respect of advocacy services or litigation services including, in particular, expert witness costs’ (s. 16A(10)).

Where available, a defendant’s costs order should normally be made unless there are positive reasons for not doing so - for example, where the defendant’s own conduct has brought suspicion on himself and has misled the prosecution into thinking that the case against him was stronger than it was (Practice Direction (Costs in Criminal Proceedings), para.2.1.1 (magistrates’ courts) and para.2.2.1 (Crown Court)).

The amount of the costs order is governed by s.16(6) which provides that the amount is to be what the court considers 'reasonably sufficient’ to compensate the defendant for ‘any expenses properly incurred by' him in the proceedings’. The order cannot include expenses that do not relate directly to the proceedings themselves, such as loss of earnings. However, where legal costs are recoverable, reg.4A of the Costs in Criminal Cases (General) Regulations 1986 (SI 1986/ 1335), says that the amount payable must be calculated in accordance with legal aid rates, whether or not that results in the fixing of an amount that the court considers reasonably sufficient or necessary to compensate the accused.

Section 21(4A)(a) of the Prosecution of Offences Act 1985 provides that where the defendant is legally aided then, for these purposes, his costs must be taken not to include the cost of representation paid for through legal aid (as these costs are being paid out of the public purse anyway).

Prosecution costs from central funds

An order that the prosecutor’s costs be paid out of central funds may be made under s. 17 of the Prosecution of Offences Act 1985. Section 1 7 applies only to private prosecutors, and so excludes the Crown Prosecution Service and any other public authority (for example, local authorities). Furthermore, this section applies only to the prosecution of indictable offences (whether indictable only or either way). Such an order can be made even though the defendant was acquitted. An order should be made save where there is good reason for not doing so, for example, where proceedings have been instituted or continued without good cause (Practice Direction (Costs in Criminal Proceedings), para.2.6.1).

The order under s. 17(1) is an order for the payment out of central funds of such amount as the court considers ‘reasonably sufficient’ to compensate the prosecutor for any ‘expenses properly incurred’ in the proceedings. Section 17(2A) enables the court to award a lesser amount where the court ‘considers that there are circumstances that make it inappropriate for the prosecution to recover the full amount’.