A top criminal lawyer at a south coast legal firm is calling for urgent action to end the so-called ‘innocence tax’ that can leave a defendant thousands of pounds out of pocket despite being acquitted at their trial.
James Constable, Senior Associate Solicitor for Crime at Ringwood-headquartered Ellis Jones Solicitors, says the current system of recompensing those found to be innocent is ‘an absolute farce and completely wrong’. He has voiced his concerns after direct experience of representing clients and, on multiple acquittals, a complex application process for reimbursement through a defence costs order (DCO).
James said:
“It is the usual practice that a defendant convicted in a criminal case will be ordered to pay at least some contribution towards the prosecutor’s legal costs. That’s accepted as reasonable by most people.
“But if you have instructed and paid for legal representation and are then acquitted, you would naturally expect to be reimbursed for what you have spent.
“Before 2013, a successful DCO application would entitle you to claim back a reasonable amount of your legal costs and be paid out of central Treasury funds.
“The rules changed that year so that an order only allows you to recover a proportion of what you’ve paid in fees based on what they would cost if set at Legal Aid rates.
“As matters stand now, this will almost always leave you short because most lawyers, particularly in complex criminal cases, will charge at a market rate and Legal Aid eligibility has been hammered over the years.“Applying for reimbursement involves a complicated spreadsheet in which the lawyer has to explain how much time they have spent in court and other details such as how much time each email in the case has involved.
“At the end of this typically onerous procedure, and assuming the DCO application is approved, the portion of fees an innocent person is able to recover can be very low.
“I’ve been involved in cases where a fee of, say, £3,000 for legal services has resulted in a central funds payment of just a few hundred pounds. If it was £500 for example, the person has therefore lost out by £2,500.“It is this kind of shortfall that has become known as the ‘innocence tax’ and I believe it is completely wrong and shows the system to be an absolute farce.
“In May 2023 the government said it would take steps to end the innocence tax within two years, but since then no new regulations have been published that would give effect to any proposed change. Addressing the issue needs far more urgency.”
Holding the status of Solicitor Advocate, James has the right to represent clients and appear in all criminal courts in the land, from Magistrates’ and Crown Courts up to the Court of Appeal Criminal Division and the UK Supreme Court.
As well as difficulties in reclaiming legal fees, he said acquitted defendants also faced an uphill struggle to gain compensation. “We’ve just had a test case involving two applicants for compensation that went to the European Court of Human Rights,” James explained. “Judges there found that the ‘test’ for gaining compensation in English law is ‘insurmountably high’, meaning you basically have to reverse the burden of proof and show you are innocent beyond reasonable doubt, something that’s obviously extremely hard to do.
“Alongside the case, the legal charity Appeal has quoted figures showing that 93% of applications for compensation from people wrongfully convicted of a crime in England or Wales have been refused in the past eight years. That’s 500 people. “It’s no surprise that Appeal has described this as a national scandal on a scale similar to what we’ve seen with the Post Office and their prosecutions of wholly innocent postmasters. “The criminal justice system requires appropriate funding complemented by new legislation to fix its faults and clear the massive backlog of cases that have been building up.
“At the moment, the reality is that our justice system is simply creating injustice for many people.”
Ellis Jones is a regional law firm with 178 staff including 21 Partners. It has seven offices across the south in Bournemouth, Canford Cliffs (Poole), Ringwood, Swanage and Wimborne – as well as London – and offers a wide range of services to individuals and businesses. For more information, visit www.ellisjones.co.uk.