Defendant funding scheme 'unlawful'

Lord Chancellor and Justice Secretary Ken Clarke resisted the application for judicial review
12 April 2012

A Government scheme requiring defendants "to pay from their own pockets to establish their innocence" has been declared unlawful by two senior judges.

Labour ministers of the previous administration introduced new regulations last autumn to save the public purse millions of pounds in criminal trials.

They argued it was reasonable to set the amount capable of being awarded out of central funds to privately-funded defendants at legal aid rates, which meant the defendants would not receive the full amount spent on clearing their names.

High Court judges quashed the regulations, saying they were legally flawed and meant "that a defendant falsely accused by the state will have to pay from his own pocket to establish his innocence".

Lord Justice Elias, sitting with Mr Justice Keith, said that was "a decisive departure from past principles". He said they jettisoned the notion "that a defendant ought not to have to pay towards the cost of defending himself against what might in some cases be wholly false accusations, provided he incurs no greater expenditure than is reasonable and proper to secure his defence".

The judge said: "Any change in that principle is one of some constitutional moment... I would be surprised if Parliament had intended that it could be properly achieved by sub-delegated legislation which is not even the subject of Parliamentary scrutiny".

Tuesday's ruling means that, subject to any appeal, the funding issue will now have to be reconsidered by Parliament. It could also mean the new Government having to pay out hundreds of thousands of pounds to defendants cleared since October.

The ruling was a victory for the Law Society of England and Wales against the current Lord Chancellor and Justice Secretary, Kenneth Clarke, who resisted Tuesday's application for judicial review. Later the Law Society described the judgment as "a resounding victory" against an unlawful attempt by the previous Lord Chancellor, Jack Straw, to cap the costs paid to people acquitted in criminal cases. The society urged the present Government "not to seek to overturn this judgment".

Society president Robert Heslett said: "This is a great victory for the society on behalf of innocent people who have been prosecuted by the state. The High Court's ruling strikes down the previous Lord Chancellor's plans, which would have meant that many people who were ineligible for legal aid and who were acquitted could have been seriously out of pocket because of the limits on the costs that they could recover. This was entirely at odds with the accepted principles of justice. It was quite wrong for the previous government to devise such a scheme and I am delighted that the court has struck it down.

"The society is pleased to have been able to champion the rights of the individual in this way so that people who are wrongly accused of offences to recover the reasonable costs of clearing their name. As the High Court said, this attempted change to the law was of 'some constitutional moment' and we are delighted that this policy cannot now continue."

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