The
Committee consisted of the following
Members:
Chairman:
Mr.
Martyn Jones
Bellingham,
Mr. Henry
(North-West Norfolk)
(Con)
Borrow,
Mr. David S.
(South Ribble)
(Lab)
Bottomley,
Peter
(Worthing, West)
(Con)
Buck,
Ms Karen
(Regent's Park and Kensington, North)
(Lab)
Cairns,
David
(Inverclyde)
(Lab)
Hall,
Mr. Mike
(Weaver Vale)
(Lab)
Heald,
Mr. Oliver
(North-East Hertfordshire)
(Con)
Holmes,
Paul
(Chesterfield)
(LD)
Howarth,
David
(Cambridge)
(LD)
Jones,
Helen
(Vice-Chamberlain of Her Majesty's
Household)
Kemp,
Mr. Fraser
(Houghton and Washington, East)
(Lab)
MacShane,
Mr. Denis
(Rotherham)
(Lab)
Malins,
Mr. Humfrey
(Woking)
(Con)
Prentice,
Bridget
(Parliamentary Under-Secretary of State for
Justice)
Wright,
Mr. Anthony
(Great Yarmouth)
(Lab)
Wright,
Jeremy
(Rugby and Kenilworth)
(Con)
Glenn McKee, Committee
Clerk
attended the
Committee
The following
also attended (Standing Order No.
118(2)):
Baldry,
Tony
(Banbury)
(Con)
Vara,
Mr. Shailesh
(North-West Cambridgeshire)
(Con)
Sixth
Delegated Legislation
Committee
Tuesday 12
January
2010
[Mr.
Martyn Jones in the
Chair]
Costs
in Criminal Cases (General) (Amendment) Regulations
2009
4.30
pm
Mr.
Henry Bellingham (North-West Norfolk) (Con): I beg to
move,
That
the Committee has considered the Costs in Criminal Cases (General)
(Amendment) Regulations 2009 (S.I. 2009, No.
2720).
It
is a pleasure to serve under your chairmanship, Mr. Jones. I
declare an interest as a qualified barrister who practised for a number
of years at the criminal
Bar.
Why
have we prayed against the regulations? We have done so because we
believe that they are fundamentally unfair and wrong. They breach a key
principle of 20th-century criminal justicethat if a
member of the public who is charged with a criminal offence seeks
private representation in court and is subsequently acquitted, his or
her reasonable costs will be met from central funds. That has always
been the case. In most cases, the defendant in question did not qualify
for legal aid; the offence was in an area where legal aid did not
apply, such as motoring offences; or the individual simply wanted to go
to the family solicitor and have private representation in court. In
those circumstances, if the defendant was acquitted, reasonable costs
would be paid
out.
It
is worth bearing it in mind that no citizen asks to be prosecuted; that
is particularly true of those citizens who know that they are innocent.
They have to spend their money, in many cases, to defend
themselvesto defend their livelihoods and to secure their
careers, their families and even their liberty. Obviously, the stress
is horrendous, but all along they knew that if they were acquitted,
they would receive their reasonable costs from central funds. Now, they
are being told that since these regulations came into force on 31
October 2009that is worth bearing in mindthey will
receive from central funds only the legal aid equivalent rates, which
obviously are far lower. As the Government have made clear, they are
set at 25 per cent. of average private
rates.
What
does that mean in practice? It means that if an innocent defendant is
acquitted in a magistrates court in a standard case, they will receive
roughly £1,000 less than what they have had to pay out. That is
the legal aid rate that they will receive, and that is an average case.
Of course, there will be many complex cases in which the costs will be
far greater. In the average medium-sized case in the Crown court, the
loss will be up to £20,000. There is no exact figure, but we are
looking at anywhere from £15,000 to £20,000. Again, in
the much more complicated cases, the loss to the pocket of the
individual will be far
greater.
There
is absolutely no equality of arms in all this, because the Ministry of
Justice has no intention of limiting prosecution costs in the same way.
In other
words, the Government will prosecute someone who may well be innocent,
but the Government will not hold back at all in terms of the
prosecution
costs.
The
Government put this out to
consultation.
Mr.
Oliver Heald (North-East Hertfordshire) (Con): Does my
hon. Friend share my view that this is bad for the prosecution? It is
limiting the risk of litigation for them, because at the end of the
day, if they lose some half-baked prosecution case, the penalty in
costs that they suffer, or that the state suffers, will be tiny in
comparison with the real
costs.
Mr.
Bellingham: That analysis is very true. It might indeed
make sense to transfer the costs of defendants costs orders
from central funds to the prosecutors themselves, because that might
well drive better prosecution decision making. I should like to put
that idea to the
Minister.
In
November 2008, the Government issued a consultation paper entitled
The Award of Costs from Central Funds in Criminal Cases
and they asked for peoples views and comments. What is
interesting is that there was overwhelming opposition to the
Governments proposals. My goodness, I do love the civil service
sometimes; there is a classic piece of understatement in the
explanatory
notes:
Overall,
respondents to the proposals were in favour of maintaining the current
system whereby defendants are entitled to claim their legal costs if
they are acquitted. Respondents considered that the existing approach
for awarding the costs of privately paying clients, determined on a
case by case basis, is both fair and
transparent.
That
is a massive understatement, because there was a huge amount of
opposition to this, and a great deal of anger was
voiced.
Peter
Bottomley (Worthing, West) (Con): Most members of the
Committee have not had much time to do research, and I congratulate my
hon. Friend on having done his. Can he recall any substantial body that
said yes to the Governments proposal? Did the Law Society? Did
any other collection of lawyers? There is probably no collection of
people who have been prosecuted and found innocent. Who supported the
Governments
proposals?
Mr.
Bellingham: I am grateful to my hon. Friend for that
question, because it is a good one. I do not know anyone who supported
it. I see that the officials are scribbling furiously, so maybe the
Minister will be able to enlighten us. I understand that there was 100
per cent. opposition to the Governments option, which is
restricting the costs to legal aid rates.
If one wants
to look at reasonable costs, one should look at the Prosecution of
Offences Act 1985, which was passed when my hon. Friend the Member for
Worthing, West was a junior Minister. The Act is sensible because
section 16(6) says
that:
such
amount as the court considers reasonably sufficient to compensate
him
or
her
for
any expenses properly incurred by
him
or
her in the
proceedings.
In
other words, the court had the flexibility and the choice to
say that the costs were reasonable in the circumstances. It meant that
if my hon. Friend the
Member for Woking was, God forbid, charged with a minor motoring offence
and, rather than going to a solicitor in his constituency, he
instructed my right hon. and learned Friend the Member for Sleaford and
North Hykeham (Mr. Hogg), who charged him £5,000 or
£6,000 for the privilege, the court could say that that was a
little over the top and could order reasonable costs but not the full
amount. There was that safeguard. The key thing to remember is that we
had a commonsense safeguard: it was left to the court to exercise its
knowledge and judgment. We are now seeing top-down control from the
Government.
Mr.
Humfrey Malins (Woking) (Con): I confirm what my hon.
Friend has said: there always was a safeguard in that the court would
order what was reasonably sufficient rather than full indemnity. It is
all the more important to keep that
safeguard.
Mr.
Bellingham: I am grateful to my hon. Friend. He has a huge
amount of experience because he sits as a recorder. I hope that
Government Members, who may not be that familiar with the regulations
but have been drafted on to the Committee, will listen carefully to the
views of experts at the sharp end. I have not been in practice for many
years, but my hon. Friend sits in judgment on these cases and knows
what he is talking about, so he should be listened to.
The
regulations flow from the Ministry of Justices decision to
reintroduce means-testing in magistrates courts and introduce it in
Crown courts. Since means-testing was reintroduced in magistrates
courts there has been a significant increase in the number of acquitted
defendants recovering costs from central funds, but it is a classic
case of the MOJ trying to make savings in one area but triggering extra
expenditure in another. The costs are being
shifted.
Will
this save a great deal of money? I do wonder. Page 13 of the MOJ
consultation paper, The Award of Costs from Central
Funds in Criminal Cases, of November 2008,
says:
In
2007/08 acquitted defendant costs accounted for approximately
£41 million,
which is 66 per cent.
of total expenditure from central funds. The MOJ claims that the SI
will save between £22 million and £25 million
a year. I am dubious about those figures, because there will be many
more litigants in person. Lots of people will have to defend
themselves; they will not plead guilty just because they cannot get
legal representation. They will go to court and defend themselves. My
hon. Friend the Member for Woking, who sits as a recorder, will know
that in many courts the system is overloaded and clogged up. We will
have many more litigants in person, who will be fighting to save their
careers and livelihood, and those cases will take much more time. A lot
of extra pressure will be put on the system.
The Minister
will undoubtedly ask, How are you going to find about
£22 million or £25 million? I would simply say
that we have strenuously resisted many initiatives by this Government
and this Department. We can put our hands on our hearts and say we
would not have done this. We would not have spent £58.9 million
on the new Supreme Court, for example. It costs nearly
£14 million a year to run, which is £37,500 a
day, according to my quick calculation before coming into the
Committee. The chief executive is on more than £100,000 to run a
court that employs 39 people, when the business of that court used to be
carried out down this corridor with a staff of six or seven, costing no
more than about £500,000 a year.
What about
the Judicial Appointments Commission, which again we resisted strongly?
That is costing more than £9 million. As for the modernisation
of the MOJ building, I am all for Ministers having incredibly plush
quarters, but on the other hand, was the money well spent? Was it
justified in these tough times? What about the running costs of the
Legal Services Commission? When the Minister asks how we would find the
money, we can put our hands on our hearts and say we would not have
done that because we would have made savings elsewhere. We would not
have made savings in such a way as to put pressure on our constituents
who are trying to defend themselves in
court.
Mr.
Fraser Kemp (Houghton and Washington, East) (Lab): I am
slightly confused, because the money has been spentwe have done
the refurbishment of the MOJ and we have the Supreme Court. Unless the
hon. Gentleman is saying that his Government would abolish the Supreme
Court, where is he going to get the extra money? The money has been
spent, so where is the saving? Has he got authority from the Shadow
Chancellor for an extra £25 million
expenditure?
Mr.
Bellingham: I am grateful to the hon. Gentleman for
intervening in that way. As I explained, we would not have done this
and would have made savings elsewhere. When tabling this prayer, we had
clearance from our Treasury team for this item of expenditure. That is
crystal clear. My colleagues in the MOJ department have made it clear
that, if we do win the election, we will look for savings elsewhere, if
this does not go through. If it goes through, that is another matter,
because we are not in the business of coming into government and
overturning everything. We hope that, if Members vote sensibly and in
accordance with the wishes of their constituents, this will not go
through.
Mr.
Malins: On the question of saving money, it would not be
necessary to abolish what has been already donealthough that
might be a good idea, to save £22 million. The truth
is that we waste far more than that due to aspects of the Crown
Prosecution Service, including the Criminal Justice Unit, with which no
doubt the hon. Member for Houghton and Washington, East is familiar.
Its inefficiencies in warning witnesses and other matters result in a
huge number of criminal cases being dismissed for want of prosecution,
at huge expense to the Crown court and magistrates court
system.
Mr.
Bellingham: Indeed. That is about case management,
efficiency and leadership in the Department, and is something that we
are going to see to. It links to the suggestion made a moment ago of
transferring the cost of defendants costs orders from central
funds to prosecutors. That would impose on prosecutors a
decision-making process that would lead them to concentrate much more
on prosecutions that are truly in the public interest. Maybe the
Minister could look at that suggestion. Rather than going down the
route of these regulations, there is another solution available, which
is to put the cost on to the Crown Prosecution Service. That would
be a perfectly fair way of ensuring that our constituents are fairly
treated, at the same time as making some modest
savings.