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15 Dec 18 11:29
Date Joined: 02 Aug 04
| Topic/replies: 7,157 | Blogger: Vubiant's blog
I'm blown away by the news that two men found not guilty in a jury trial have had their application for costs denied by ( as it happens ...just sayin') a female judge.
In my world up to now -I thought the normal practice was -you win a case you get costs -you lose and you pay. The costs here are huge.
Looks to me like the judge is saying -I consider these guys guilty and I'm going to make them pay.
Can this decision be appealed ?
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Report mrcombustible December 15, 2018 2:13 PM GMT
I can only talk about costs in criminal trials in England but I guess the system is more or less the same in N.I.

I am not sure of the timeline but say about 10 years ago a winning defendant could recover some of his costs. The Judge would make an order for reasonable costs to be  awarded from central funds. The costs would go to the NTT (National Taxing Team ) for assessment. They would normally allow costs at an hourly rate of 300 to 350 depending on the location of the Solicitor's office. Top rate allowed for London.

To give an example. Kieran Fallon and his case at the Old Bailey where the Judge threw the case out at half time after hearing the prosecution evidence. He made an order for costs. Fallon had a top team of Solicitors and Barristers and their hourly rate would have been in the region of 700 to 800 an hour. The NTT would only have allowed costs at about 350 per hour. Fallon had two firms of Solicitors assisting, NTT would not allow any duplication of work. At a guess I would think Fallon would have been lucky to recover 25% of his costs but it was his choice to have such a large legal team.
The other defendants were on Legal Aid so did not incur any legal costs, they would have had a claim for travel and any other out of pocket expenses. Fallon could have had Legal Aid but that would have meant a smaller legal team. If you get legal aid you cannot fund additional lawyers privately.

In those days Legal Aid rates were ok so you could get a good Solicitor and a good QC but nowadays after large government cuts  most good lawyers will not work at Legal Aid Rates so you are left with dross representing you when your liberty is at stake. The Government get away with slashing the criminal justice budget as most people don't care about criminals nor unsafe convictions. No votes to be had. It is only when you are charged with something that you realise you are pitted against the state and will not get your money back if you win.
Report mrcombustible December 15, 2018 2:31 PM GMT
Move on to the new costs regime which came in a few years ago.

If you apply for legal aid and are refused and pay privately you can recover your costs at Legal Aid rates which is about £55 an hour, you will have paid your lawyers about 350 so you will recover about 14%.

If you do not apply for legal aid and pay privately  you recover zero and as pointed out earlier there is a risk in applying for legal aid because if granted you will get very poor representation as more and more criminal solicitors are refusing to accept legal aid clients.

I believe the judge has the power to award some costs in very exceptional circumstances. EG where he thinks the police are vexatious. These cases are extremely rare.

In all other areas of law the loser pays but in Criminal law where you are up against the state they no longer pay.
Report mrcombustible December 15, 2018 2:33 PM GMT
They would be able to appeal but why throw more money away when you have no hope of success.
Report mrcombustible December 15, 2018 2:51 PM GMT
Costs News
19 SEPTEMBER 2018go back
Court of Appeal makes rare costs order against CPS for failed prosecution
The Court of Appeal has made a rare order for the Crown Prosecution Service (CPS) to pay a successful defendant’s costs after finding that it was a case where the prosecution failed “as a matter of law”.

In Najib And Sons Ltd v Crown Prosecution Service [2018] EWCA Crim 1554, the court quashed the appellant's conviction and sentence for an alleged offence under regulation 17(1) of the Transmissible Spongiform Encephalopathies (England) Regulations 2010 of failing to give an inspector assistance required to take samples.

Lord Justice Leggatt explained that the “essential ground” on which the conviction was quashed was that, under the regulations, the inspector had no power to require the appellant to provide samples and the appellant's failure to do so therefore did not constitute an offence in law.

The appellant’s application for costs in the Court of Appeal and below was made under regulation 3 of the Costs in Criminal Cases (General) Regulations 1986, made by the Lord Chancellor under powers conferred by section 19 of the Prosecution of Offences Act 1985.

This provides that where the Court of Appeal is satisfied that costs have been incurred by one of the parties as a result of an unnecessary or improper act or omission by, or on behalf of, another party, the court may, after hearing the parties, order that all or part of those costs be paid by the other party. Here the application was dealt with on the papers.

The court cited the ruling of Mr Justice Coulson (as he then was) in R v Cornish [2016] EWHC 779 (QB) as an accurate summary of the law around an "unnecessary or improper act or omission":

(a) Simply because a prosecution fails, even if the defendant is found to have no case to answer, does not of itself overcome the threshold criteria of section 19;

(b) Improper conduct means an act or omission that would not have occurred if the party concerned had conducted his case properly;

(c) The test is one of impropriety, not merely unreasonableness. The conduct of the prosecution must be starkly improper such that no great investigation into the facts or decision-making process is necessary to establish it;

(d) Where the case fails as a matter of law, the prosecutor may be more open to a claim that the decision to charge was improper, but even then, that does not necessarily follow because no one has a monopoly of legal wisdom, and many legal points are properly arguable;

(e) It is important that section 19 applications are not used to attack decisions to prosecute by way of a collateral challenge, and the courts must be ever vigilant to avoid any temptation to impose too high a burden or standard on a public prosecuting authority in respect of prosecution decisions; and

(f) In consequence of these principles, the granting of a section 19 application will be very rare and will be restricted to those exceptional cases where the prosecution has made a clear and stark error as a result of which a defendant has incurred costs for which it is appropriate to compensate him.

Leggatt LJ said the present case fell into category (d). “Moreover, it failed because the offence with which the appellant was charged did not exist. In these circumstances, the question whether costs have been incurred as a result of an unnecessary or improper act or omission by the prosecutor is one which naturally arises.”

However, he said the fact that the Crown Court had rejected the appellant’s argument that the facts alleged did not amount to an offence within the scope of the regulations, and that permission to appeal was initially refused by the single judge on the papers, meant it was “impossible to say that the prosecution was improperly brought or that the case was improperly advanced by the respondent in the Crown Court”.

Leggatt LJ continued: “In particular, we think it impossible to say in those circumstances that it was or should have been plain that the prosecution case was without legal merit.”

However, he said the position changed after the oral hearing in the Court of Appeal when permission was granted without calling on the appellant and it said: “We cannot at the moment see how there is any peg on which to hang the criminal charge, but that is a matter which we would expect to be addressed in the respondent's skeleton [argument] in due course.”

This should have put the CPS on notice that, unless it could find a proper basis for the charge, it was at risk of a costs order. As a result, Leggatt LJ said the test under regulation 3 was satisfied and the appellant is in principle entitled to an award of costs in respect of the proceedings in the Court of Appeal after the oral permission hearing.

The appellant sought costs of £52,000, but the judge said it appeared that the majority of these costs were incurred in the period up to and including the permission hearing. “Nor do we think it right to award all the costs incurred after that date. In particular, the fees charged by the appellant's representatives are higher than those which we think it appropriate to order another party to pay; and a significant discount should also be made to reflect the fact that, in addition to the grounds on which the appeal succeeded, the appellant pursued two other grounds of appeal which failed.”

He concluded: “Taking these matters into account and adopting a broad view for the purpose of a summary assessment, the amount of costs that the respondent will be ordered to pay is £10,000.”
Report Vubiant December 15, 2018 6:22 PM GMT
Thanks for illuminating material.
I find the Jackson/Olding costs decision quite shocking. Their counsel made the strong factual arguments that they had suffered loss of earnings , damaging loss of reputation and had lost their jobs -being compelled to go abroad to gain similar employment . Yet this judge can blithely ignore all this and ensure that large financial losses are sustained as well. As a lay observer , I didn't deduce from the judge's summary that her decision was based  on some point of law .Rather,it seemed to me that these two guys,whatever they did or didn't do , are paying a horrendous and disproportionate price which is heavily increased -ostensibly by a judge's prejudice.  One might think that they would qualify for at least some fraction of their costs - zero seems incredible to me.
Report Kelly December 18, 2018 9:35 PM GMT
Everything about this case was distasteful,the only winners were the legal teams .  Nothing new about that . However up here it is only the top earners who are happy with current situation apparently .
Report kincsem January 1, 2019 2:57 PM GMT
Can they bring it to a European court?
Report mrcombustible January 1, 2019 4:07 PM GMT
They would have to exhaust all the appeal procedures in the UK first which would cost an absolute fortune.

This is a similar case from the Guardian

‘It’s completely wrong’: falsely accused Tory MP attacks legal aid cuts
Nigel Evans backed policy in 2012, then spent life savings defending himself in court

Nigel Evans, the Tory MP for the Ribble Valley
Evans, the Tory MP for the Ribble Valley, spent about £130,000 in 2014 fighting false accusations of rape. Photograph: Peter Byrne/PA
The former Commons deputy speaker Nigel Evans, who spent his life savings defending himself against false accusations of rape and sexual abuse, has said he would now vote against the legal aid cuts brought in by the Conservative-led coalition.

His call to restore funding to its pre-2012 level comes as other prominent Conservative MPs including Bob Neill, the chair of the Commons justice select committee, say the savings were excessive and may have displaced costs on to other departments.

‘I couldn’t fight to get my children back’: the impact of legal aid cuts
Read more
Neill, a barrister, has said the original impulse may have been to cut down “on some instances of needless expenditure” but the pendulum has swung too far. “The evidence is pretty compelling that changes are needed … We cannot expect people who often have multiple problems in their lives necessarily to be able to resolve such things on their own,” he said.

Evans, the Tory MP for the Ribble Valley in Lancashire, spent about £130,000 in 2014 fighting charges that he raped a university student and sexually assaulted six other men over a 10-year period.

He supported the Legal Aid, Sentencing and Punishment of Offenders Act (Laspo) when it was passed by parliament in 2012, but says his experience since then has proved to him the act was wrong and that the legal system needs an injection of cash.

“If I had my time again I would stand up and argue against the implementation of Laspo,” said Evans, a former shadow secretary of state for Wales. “It’s wrong, completely wrong, to remove people’s right to have expert legal representation, and now I’ve gone through it I can see that clearly. We’re definitely talking about justice being denied as a result of Laspo.

“My experience of being falsely accused, and losing my life savings to defend myself proving that, was a road to Damascus moment for me. I’m a changed person now, in terms of Laspo and sympathy for all those who now have to go through the legal system without expert help, support and advice.”

He added: “I’m not just talking about those accused in the criminal courts like me, but everyone affected by Laspo. Parents going through the family courts, tenants fighting landlords, patients fighting hospitals and so on. Laspo is clearly not working. It needs to be overhauled.”

Evans, who was in the Speaker’s chair when the legislation was debated, was caught out on costs because Laspo changed the rules for acquitted defendants. Previously, they were eligible to claim for “reasonable costs”. After Laspo they were allowed to claim only a modest contribution towards the costs they had incurred.

“Laspo financially punishes innocent people for the crime of being wrongly accused,” Evans said.

The case against Evans fell apart as his accusers took their turns in the witness box during the five-week trial. Several of the young men told the judge at Preston crown court that they did not consider themselves to be victims of a criminal offence and had not wanted to complain to police.

Evans now believes that people who are taken to court by the Crown Prosecution Service and acquitted should get back their reasonable costs. Prior to Laspo, defendant’s costs orders (DCOs) ensured this was available to all who had paid privately. Those rights were abolished by schedule 7 of Laspo.

“You have no choice, when you’re accused of a crime and risk going to prison and losing everything, than to pay whatever you can to defend yourself,” Evans said. “I was fortunate that I had my grandfather’s business in Swansea that I could sell and a house that I could remortgage. But if you don’t have life savings that you can drain, it makes a mockery of the whole idea of justice.

“Thanks to Laspo, you can be taken to court through no fault of your own and even when you walk away without a stain on your character, your bank account is completely drained. They call it the ‘innocent tax’ but what it is is innocent people subsidising the judiciary … We should go back to the pre-Laspo rules.”

He initially supported Laspo for the same reasons he thinks the public have not protested against the legislation: “People don’t see people like me as victims, and there’s a sense that it could not happen to them.

“That’s what I thought too, but it’s completely wrong. There’s nothing easier than someone falsely accusing you of a crime. Maybe only a relatively small number of people are affected, but part of the problem is that there’s a randomness to being falsely accused, it could literally happen to everyone.

“I was lucky, in that I had life savings to lose, but for those who don’t, Laspo can bring them to the point of suicide.”

He is calling for an independent commission to investigate equality in the legal system. “We must have equality for those who are now forced to go to court and represent themselves,” he said.

Defendants who do apply for legal aid representation find themselves relying on a desperately underfunded service. Christina Blacklaws, the president of the Law Society, which represents solicitors in England and Wales, said: “Defence solicitors have had no pay rises for over 20 years and this is driving more and more of them away from criminal defence work.

“There is a desperate need to increase fees for all of this other work [including visits to police stations] if we are to have any hope of avoiding the imminent extinction of the criminal defence solicitor in some parts of the country.”

A report by Donald Hirsch, professor of social policy at Loughborough University, for the Law Society highlighted the fact that some of the poorest people were being denied legal aid because they could not afford the financial contributions they were required to make, which can be up to £8,000.

Mark Smith, a duty solicitor at the law firm DJMS, said: “If they [are deemed to be] over the contribution threshold, the amount they have to pay is astronomical. If you paid for it privately, it would cost far less. Sometimes people on benefits are told they have to pay. We are seeing more people unrepresented in crown court cases.”

Report Vubiant January 1, 2019 5:10 PM GMT
Interesting context there again.
I remain utterly convinced that if one is acquitted of a charge by a jury it is only fair and just that one is awarded costs. That applies with extra force in the Belfast case when people were compelled to defend and clear their name and reputation.
The State brought a charge -couldn't prove it in court - the State should pay costs. I don't care what 'the law' says ..that's my conception of justice.
Report mrcombustible January 1, 2019 6:01 PM GMT
I don't think anyone would disagree with you.
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