I’M Facing A Criminal Charge, Can I Recover My Legal Costs?

How to fund their defence is often the first significant decision a client facing a criminal allegation has to make. Many defendants want to know what will happen if they are found not guilty. Will they get back any costs?

At Hodge Jones & Allen (HJA) we are pleased to be able to be able to offer legal aid in appropriate cases, to clients that are eligible. If granted for cases before the Magistrates Court, the defendant will not have to contribute to their costs. If granted for cases before the Crown Court, they may have to contribute to costs but if acquitted, these payments will be returned to them.

But what happens if a defendant does not qualify for legal aid? Or decides that they want to privately fund their defence so that they may defend their case beyond the limits of legal aid? Some people are shocked to discover that defendants acquitted after privately funding their case may not recover all – or any – of their legal costs.

The provisions are found in Schedule 7 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and apply to criminal proceedings commenced on or after 1 October 2012. The recovery of costs is limited to work done after charge. This is significant because many defendants wish to privately fund advice and assistance during the investigation stage of their case – a period which is increasingly lengthy and complex.

If the case goes to court and the defendant is acquitted, a Defence Costs Order (DCO) can be applied for. If granted the defendant can apply for recovery of their costs from Central Funds, with the amount limited to ‘legal aid’ rates.

For costs incurred when the case was before the Magistrates Court, all defendants privately funding their case can apply for a DCO and seek to recover capped costs. The situation is more difficult for those cases that transfer to the Crown Court.

Legal costs after transfer from the Magistrates to Crown Court are only recoverable if a Representation Order for public funding was applied for and refused on the grounds that the defendant’s means are too great for legal aid.

This means that an innocent defendant, found not guilty in the Crown Court, can only apply for recovery of any legal costs for the Crown Court part of their case, if legal aid was applied for and refused. A defendant that – quite understandably – decides to fund their own defence in circumstances where they would be eligible for legal aid, will not be able to recover the costs from Central Funds at all. If a DCO is made, the capped rates mean that it is likely they will only get back a proportion of their costs.

After successfully defending allegations, we regularly obtain Defence Costs Orders and assist clients in recovering what costs they can. At HJA we recognise that facing criminal proceedings is stressful and challenging and want to make sure that funding issues are understood and informed decisions are made. Experience of legal aid as well as private funding means that we understand the provisions and how to make use of them to help our clients.

If you want advice on private funding issues please call us on 0330 822 3451 for a discussion on the options available. Or request a callback.