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A British Library exhibition officer dusts a painting on loan from The Victoria and Albert Museum to Magna Carta- Law, Liberty, Legacy. Photography © Clare Kendall

Why are civil litigants, private prosecutors and those accused of serious fraud better off than innocent middle income defendants?

They say the law is an ass. When it comes to who pays for prosecution and defence it seems so.  A new report from Transform Justice looks at defendants who lose thousands of pounds, even though they are acquitted.

Many remember the Nigel Evans case, in which the Deputy Speaker of the House of Commons, was acquitted of rape but left court £130,000 the poorer. He had hired private lawyers to advocate his case and was horrified to learn that he would get none of the money back :’If someone is dragged through the courts through no fault of their own and is acquitted they should get their legal fees back from the CPS (Crown Prosecution Service) budget. Maybe that will make them focus on whether a case is worth pursuing.’

He and others have lost thousands of their own money defending their innocence.  Many defendants have no choice but to pay privately for their lawyers since legal aid is not granted to those of middling income – anyone with a disposable household income of more than £22,325 will not get legal aid in the magistrates’ court. If defendants are acquitted or the prosecution withdraws the charge, they can only get a small proportion of their legal fees back. They can get back the legal aid rate for that case. But private lawyers say they can’t do a good job for legal aid fees, so the real costs are much higher.

The irony of the situation is that defendants denied legal aid are practically the only litigants in the justice system who cannot get ‘reasonable’ costs back if found innocent:

• If you are sued in the civil courts and win your case, your costs are usually paid by the losing side
• If you are very rich, but the trial you face is very very expensive, you will get legal aid. The bank traders accused of rigging the Libor rate have been granted legal aid. This of course means that their fees are paid whether they are found guilty or not.
• If you pay for a private prosecution in the criminal courts, you will get ‘reasonable’ costs back whether or not the prosecution is successful

The only way of getting full costs back if you are acquitted is to prove that the prosecution was ‘perverse’. This is a high bar and defendants are faced with spending even more of their own money fighting this. So the majority give up, their faith in the justice system shattered and their life savings gone.