What is the Price of an Acquittal?

As discussed in our earlier article 'Liability For Costs In Crown Court Criminal Defence Cases: The Perils Of Cohabitation And Solicitor's Duties') convicted defendants (and their partners) are facing higher, in some cases ruinous, legal costs. But what about those acquitted? Naturally, they do not have to meet the costs of their prosecution, but what of their own costs?

The Old Law

Previously when a person was not eligible for Legal Aid they had the option of paying privately for their representation, and then if they were acquitted at the end of the case an application could be made for payment out of the government's Central Funds to reimbursement them for these costs. This was known as a Defendant's Costs' Order.

Under section 16 of The Prosecution of Offences Act (POA) 1985, the courts had the power to award a person their legal costs back following an acquittal. This was based on an amount that 'the court considered to be reasonably sufficient to compensate the defendant for any expenses which he has properly incurred in the proceedings'. Reasonable rates were determined by reference to rates charged by comparable firms with similar expertise and in a similar locality. When such costs were applied for following an acquittal, the courts either made a summary assessment of the costs or referred the cases to be taxed by the National Taxing Team.

This scheme had been in place for 25 years and was covered in regulation 7 of The Costs in Criminal Cases (General) Regulations 1986, and was embraced by the courts, lawyers and defendants alike, prior to the changes that were brought in by the Government on 31 October 2009.

The Changes

On 31 October 2009, the Labour Government brought in changes which limited the amount of costs that could be reimbursed to a person who had paid for their legal representation and had been...