Since 1 October 2012 new rules have made wholesale changes to the recoverability of legal costs for successful defendants and appellants in Health & Safety and other criminal proceedings.
Since 1 October 2012 new rules have made wholesale changes to the recoverability of legal costs for successful defendants and appellants in Health & Safety and other criminal proceedings.
Schedule 7 to the Legal Aid, Sentencing & Punishment of Offenders Act 2012 provides that only a small minority of acquitted defendants (almost always individuals) will in future recover sums spent on their legal fees, with those sums limited to rates set by the Lord Chancellor – currently legal aid rates (£49.70 per hour for preparation).
However, the real mischief of the legislation is that a significant proportion of defendants will now be prohibited from making any recovery at all. This is because:
Where legal aid is available to a defendant in the Crown Court, but they choose to instruct a lawyer privately, they will no longer be able to apply for a defence costs order.
The new rules abolish the award of defence costs order in respect of companies. Thus, any company who is charged or summonsed with a criminal offence will now have to bear the entirety of its defence costs, even if it is successful and whichever court it faces proceedings in.
The rationale is plainly to save costs in criminal cases by requiring those who are wealthy enough to meet the costs of their defence. But these draconian changes were not in the Coalition Government agreement and have not been thoroughly debated in Parliament. They are manifestly unfair. No individual or company chooses to be prosecuted. Many prosecutions are misconceived or lack merit. And yet, in future, there may be no provision for acquitted defendants to recover their legal costs.
David Whittaker is a member of the Regulatory Crime group at 2 Hare Court, and represents companies and individuals who face enforcement proceedings brought by the HSE.
