The changes in provisions to the making of defendants’ costs orders only apply where proceedings commence on or after 1 October 2012. Prior to this date the current arrangements still apply.

As part of the Government’s commitment to the reducing of costs awards being made from Central Government a number of changes are being introduced which significantly reduces the scope the Court have in making awards that the defendants’ costs be met in whole or in part.

It is important to note that, although there are principles that apply to all stages of a criminal case, each case will have to be considered on its own merits and tailored advice will be provided to clients in each case where it is proposed that this firm is instructed on a private basis or contemplation is being given to such an instruction.

For guidance purposes, however the following rules will apply from 1 October 2012:

1. In respect of all Magistrates’ Court cases legal costs can be included in a defence costs order. However, the rates that will apply to those orders being made are capped broadly at rates that would have been paid if the defendant had been the beneficiary of a legal aid order. In many cases this can mean the hourly rate is no more than 25% of the firm’s private rate. In many of the cases in which these provisions apply, legal aid would not have been available to a defendant in any event, and consequently even if a defendant is successful in a case that ends in the Magistrates’ Courts they are only able to recover a portion of their costs from Central Funds;
2. In cases which are in the Crown Court on indictment, legal costs cannot be included in a defence costs order unless the costs apply to appeal proceedings against a conviction or sentence of the Magistrates’ Court.

This principle has been introduced on the basis that all defendants are eligible to receive the benefit of legal aid; in the Crown Court either subject to nil or monetary financial contributions. There are a number of other regulations that apply to the making of defendants’ costs orders including in respect of extradition and cases which are before the Court of Appeal, and in those cases defendants will receive specific advice at the outset as to the costs that may be returned to a defendant in the event of a successful outcome.

These changes represent a significant challenge to this firm and clients of this firm. We are committed to providing comprehensive advice at the outset of cases where these provisions may apply in order that clients and prospective clients obtain all the information that they require prior to make a decision as to the instruction of the firm on a private basis.

We fully recognise that in a number of cases defendants are financially worse off in the event of an acquittal or successful outcome than they otherwise would have been prior to 1 October 2012 and that is a direct impact of the Government’s policy. Clients will be aware that not only are there cost implications for cases tried in all courts, but the decision as to whether to instruct a firm privately will also be influenced in some cases by the potential financial penalties in the event of conviction, namely confiscation and Proceeds of Crime Act proceedings which inevitably follow in most cases which are before the Crown Court.

Those are issues that the firm will discuss with all clients at the commencement of a case.