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Currently, if you're charged with an offence and are found not guilty you're entitled to have your 'reasonable' legal costs and expenses paid for from Ministry of Justice Central Funds.
In October 2009, the Ministry of Justice planned to implement a new costs recovery system in criminal cases, and the government at the time considered three options:
The former government intended to implement option three, and in accordance with the proposed changes, defendants found not guilty in the magistrates' and crown court would only be reimbursed for the costs they would have paid to a legal aid lawyer, rather than the actual costs they incurred of instructing a lawyer on a private basis.
The former Labour government planned to put this new rule in place as a cost saving measure. The Ministry of Justice stated that the age old principle of the 'loser pays' has been costing the government an excessive amount of money.
The Central Funds budget, held by the Ministry of Justice, was in the sum of £45m per annum for some time, but the actual cash out-turn in recent years has far exceeded this budget. The former Labour government stated that the proposed changes to costs recovery would potentially save the Central Funds budget £22-£25m.
It is evident that the coalition government will need to address this 'over-spend', but many individuals and associations are concerned about whether the introduction of recovery of 'capped' legal fees is the answer.
Does this not go against the grain of providing justice to all individuals? Legal aid is not available for a number of motoring offences and so this proposed change could mean that a number of individuals will accept a charge because they do not have sufficient funds with which to defend the offence.
Why should someone be denied a refund of their fees if they are not guilty?
It is estimated that in the magistrates' court, a defendant who instructs a lawyer on a private basis will make a loss in the region of £1,000. In the crown court, the estimated loss for a privately paying defendant is around £16,700.
It is evident that this proposal will greatly affect the every day motorist. Perhaps the Crown Prosecution Service should consider investigating cases thoroughly and ensuring they have sufficient evidence to prosecute rather than pursuing matters with limited evidence. This should reduce the number of individuals that are found not guilty after being charged.
The most common criticism of this proposal was also that this would affect the right of a defendant to select a lawyer of his or her own choosing. Many defendants would be unable to fund the cost of instructing a lawyer on a private basis and would be limited to instruct a lawyer on a legal aid basis, where this is available.
The Association of Motor Offence Lawyers launched an e-petition concerning this proposal, outlining the affect these rules would have on motorists. It was supported, among others, by the Law Society, the Criminal Bar Association, The AA, and The Association of British Drivers.
It doesn't appear that this proposal has been implemented, yet, and the General Election may have seen it placed on the backburner. The Conservative Party was one of many that backed the protest against the Ministry of Justice's new costs recovery rules.
Will the new coalition government implement the proposal? We all need to watch this space and ensure innocent motorists aren't penalised in a cost saving measure.
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