[Published in The Times on 3rd July 2014]

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Legal aid, Mr Rockefeller?

A depressing glimpse into the reality of our current criminal costs system (or – spare a tear for the private defendant)

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My old mate Jim Sturman and I had an early-season triple bet running on our beloved Spurs: not to finish in the top four; Soldado not to score 13 league goals; and Paulinho never to score from outside the area – with a meal on each bet, and the venue to be chosen at the election of the gloating winner.

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As matters turned out, I made a clean sweep. After lengthy consideration, I have opted for Simpsons for breakfast, Scotts for Lunch and Scalini for a little late dinner, washed down with a bottle of Tignanello (not to mention a schadenfreude grappa or two). But had I lost, I would have paid up promptly – albeit begrudgingly.

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And so it should be with criminal costs. Rumour has it that the CPS are meant to assess whether there is a realistic prospect of conviction, before laying charges – the so-called 51 per cent rule. If they get it wrong the state should pay up, just as the loser pays the other side’s costs in civil proceedings.

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Why should a defendant have to fork out his life savings even if acquitted? The answer as printed in your programme is that the state can no longer afford to pay. Well, spare a tear for the hybrid defendant, who earns too much to be granted legal aid but will be financially crippled by paying privately, without the prospect of a sizeable contribution to his outlay in the event of an acquittal.

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As long as I can remember, the system used to be that an acquitted defendant was generally entitled to his costs (a sort of “I win – you pay” arrangement). But now at best, costs can only be claimed at legal aid rates, even if it transpires that the accused was actually innocent.

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Take a murder charge based largely on identification evidence, with the accused running an alibi. Say he has proved during his trial that he was in Honolulu at the time (or even, more conclusively, the real guilty party is arrested and confesses), and the judge himself stops the case. Nowadays I would venture to guess that he is very unlikely to see a return of more than 20 per cent of his actual outlay. What sort of justice is this?

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As if this situation is not bad enough, a further absurd ingredient is now to be added to an already very bitter cocktail. I was so incensed on reading about it that I decided to write to the Ministry of Justice. The nub of my letter read: “I am afraid that it is quite beyond my understanding that there is now the intention of introducing a system that clients who wish to pay privately cannot recover costs (even on legal aid rates) unless they have applied for legal aid and been refused . . . surely this regulation has not been introduced so that the legal aid authorities can refuse a successful defendant his costs (albeit at a legal aid rate) because he has never applied for legal aid and has been refused?”

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The guts of the somewhat delphic reply read: “The new provision was not intended as a general provision to enable those who, in any event, would have paid privately, to apply for a payment from central funds if acquitted.”

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I left it at that, but later in a moment of l'esprit de l'escalier, it occurred to me that I might have suggested in a second letter, that all legal aid forms should have as question one: “Is this is a serious application, or are you applying to be refused in order to protect your costs position in the event of an acquittal? Please tick the appropriate box on the right.”

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Surely we are now uncomfortably ensconced in the realms of French farce. Imagine Mr Rockefeller rocking up at your swanky offices to be greeted with a legal aid form so that if acquitted he can claim back a small percentage of his actual costs.

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This might allow him just enough to celebrate an acquittal, in suitable form, with a hefty breakfast at the Breakout cafe outside Pentonville Prison (actually rather good), a Pret A Manger sandwich for lunch, and a slap-up early supper at McDonalds, washed down with a large carafe of Gaviscon – and no, Mr Rockefeller, Jim and I will not be seeing you at Scalini for a late dinner.