This article is important for practitioners who undertake privately funded criminal defence work.
When can defendants recover legal costs in the Crown Court?
A defendant acquitted in the Crown Court can recover legal costs in a defendant’s Costs Order. However, legal costs are limited to legal aid rates and they are only available to a non- legally aided (or privately paying) client if that client was ineligible for legal aid. The Law Society Practice note of 21 December 2015 deals with the requirement to advise non-legally aided clients of the position.
Law Society Practice note – Privately funded criminal defence
It is important that all practitioners are aware of the practice note, even those who undertake no publicly funded work at all. Indeed, the non-legal aid practitioner is likely to deal with a higher proportion of ineligible clients than the practitioner undertaking a mix of privately and publicly funded work.
Requirements for firms
The practice note requires a lawyer to advise a client of funding options. This must be set out in a client care letter. The note then requires that a client is advised to apply for legal aid, even if ineligible, so as to preserve their position in the event of an acquittal.
Requirements for firms who undertake no legally aided work
For practices without a contract to undertake legally aided work, the client ‘should’ be advised that they ‘could’ approach another firm with a legal aid contract. This may leave some clients feeling somewhat confused. Finding a firm to submit an application for legal aid just so it can be rejected allowing a client to return to his solicitor of choice might be a challenge.
Olliers Solicitors – Specialist Criminal Defence
At Olliers, we undertake a mix of legally aided and publicly funded work. We act for clients ineligible for legal aid and those who choose to fund matters privately. Some of our lawyers only undertake privately funded work. Fortunately, we can make these applications ourselves. Our standard letters have been adapted to deal with this issue and all staff dealing with privately funded cases have been trained on the matter.
It is unfair that a person of moderate means who chooses to fund their case privately cannot apply for a Defendant’s Costs Order if acquitted yet a wealthier person can. However the key feature is ensuring that, wherever possible, a defendant’s position is preserved in the event of an acquittal, even if that only applies to the ineligible defendant.
It is therefore important for all practitioners whether or not they undertake publicly funded work to be aware of the Law Society’s practice note of the 21st December 2015 and because it is intended to assist the ineligible defendant it requires a knowledge of these provisions on the part of lawyers not undertaking publicly funded work.
The practice note can be found here.
Matthew Claughton: Specialist Criminal Defence & Fraud Lawyer in Manchester & London
Matthew Claughton is the Modern Law Awards Lawyer 2015. He is also the Manchester Legal Awards Partner of the Year 2015 and was shortlisted as Solicitor of the Year 2015 in the Law Society’s national awards. He is rated as a Top Tier criminal lawyer in the 2016 edition of the Legal 500. Matthew specialises in defending allegations of fraud, serious crime and sexual offences.