R (o.t.a Henderson) v. Secretary of State for Justice, Divisional Court, 27 January 2015 – judgment here
The Court (Burnett LJ giving the sole judgment) has ruled on whether the statutory changes made to the ability of acquitted defendants in the Crown Court to recover their costs from central funds are compatible with the ECHR.
Its answer – an emphatic yes, the new rules are compatible. This conclusion was reached in respect of the two statutory regimes applicable since October 2012, as we shall see.
Mr Henderson was acquitted in the Crown Court on a re-trial of assault occasioning actual bodily harm. He had been represented by lawyers on a private (i.e. non Legal Aid) basis. He applied for a defendant’s costs order in respect of his lawyers’ bill – estimated at £70,000.
The judge said he had no jurisdiction to make such an order, because amendments to the Prosecution of Offenders Act 1985 (introduced via a new s.16A in LASPO 2012 – see here) prevented the recovery of costs from central funds by a defendant acquitted following trial in the Crown Court who had been committed or sent for trial after 1 October 2012. Timing was not on the defendant’s side – had he been committed to the Crown Court a few weeks before he was on 15 October, he could have recovered his costs.
Mr Henderson argued that section 16A of the 1985 Act was incompatible with Articles 6 and 14 of the Convention. He sought a declaration of incompatibility under s. 4 of the HRA. He also said that s.16A was in conflict with the 1688 Bill of Rights and common law notions of fairness, balance and justice with the result that the courts should fashion a new common law entitlement to costs. Finally, he said that the court should order compensation for the costs he incurred.
His grounds of challenge addressed the position at the time of his committal, and under subsequent amendments of the scheme operative from 27 January 2014 under which defendants with a household income of more than £37,500 could not qualify for legal aid at all.
Mr Henderson could not make a direct challenge to the judge’s decision, due to s.29(3) of the Senior Courts Act 1981 which excludes the jurisdiction of the High Court concerning “matters relating to trial on indictment”. However, as we shall see, this did not stop the Court engaging with the merits of the Convention arguments.
The statutory position
At the time of his committal, s.16A of the 1985 Act denied an acquitted defendant in the Crown Court any possibility of recovering his privately incurred costs from central funds. But there was then a blanket entitlement to legal aid in the Crown Court, albeit subject to contributions depending upon means, with the return of those contributions in the event of an acquittal. No individual was denied legal aid in the Crown Court; the instruction of lawyers on a private basis was a matter of choice. The position was different in the Magistrates’ Court.
The legal aid and costs recovery position changed, to a limited degree, from 27 January 2014. An earnings cap was introduced which denied legal aid altogether to some defendants in the Crown Court, but a defendant’s costs order from central funds could once more could be made in the Crown Court following acquittal, but with costs limited to legal aid rates.
The Convention claims
The Court dismissed claims based on the fair trial provisions contained in Article 6 of the Convention. Mr Henderson had argued that the statutory regime was in conflict with the presumption of innocence. His problem was that this was inconsistent with a series of decisions of the Strasbourg Court about failure to reimburse the legal costs of an acquitted defendant, e.g. Masson and Van Zon v Netherlands(1996) 22 EHRR 491. or Ashenden v United Kingdom (2012) 54 EHRR 13.
Mr Henderson also mounted an argument that defendants were in effect ‘forced’ to engage legal aid lawyers, whereas many skilled lawyers did not accept instructions on criminal legal aid. This, the Court said, did not assist him. Article 6(3)(c) of the Convention re protects the right of a defendant to defend himself in person or through legal assistance of his own choosing; or if he has insufficient means to do so to be given free legal aid when the interests of justice so require. In the claimant’s case he defended himself with his own lawyers. He exercised the right protected by the Convention. The Convention does not guarantee to an acquitted defendant a right to recover his defence costs. The argument that a hypothetical relatively well-off individual might feel pressured to use legal aid lawyers cannot affect that conclusion.
An Article 14 discrimination argument, that there was an imbalance between the costs position of acquitted defendants and the prosecution under the legislative scheme, was not pressed by him. It founded on the fact that the sums recoverable by a private prosecutor are not limited to legal aid rates or those which the CPS would seek – see Virgin Media Limited v Zinga  EWCA Crim 1823.
The Court gave this argument short shrift; it was difficult to see what protected characteristics identified in Article 14 were relied upon, the prosecutor or state is not an obvious comparator with a defendant, and there was in any event clear justification for the legislative choices made in respect of both prosecutor’s and defendant’s costs.
Hence, the Court concluded that section 16A of the 1985 Act was not incompatible with the Convention. This conclusion applied to
(a) the inability of acquitted defendants in the Crown Court to recover their privately incurred legal costs in cases committed or sent between 1 October 2012 and 27 January 2014; and
(b) the 2014 version allowing such a defendants costs order for those not qualifying for legal aid on financial grounds, but limiting recovery of those costs to legal aid rates.
The Bill of Rights and a Common Law Power to Award Costs
Mr Henderson argued that these costs provisions, albeit in primary legislation, are inconsistent with provisions of the Bill of Rights 1688, which was itself primary legislation.
Burnett LJ summarised the effect of the 1688 Act:
It was an Act declaring the rights and liberties of the subject which the new monarchs acknowledged. It confirmed William and Mary as co-rulers and settled the succession. The various legislative acts of this period cementing the Glorious Revolution are seen as establishing the modern constitutional monarchy. What it did not do was say anything about costs in criminal or other proceedings.
Hence the unsurprising conclusion that there was no apparent contradiction between the Bill of Rights and the 1985 Act.
A common law claim also failed. A similar attempt had been refused by the House of Lords in Holden & Co. v CPS (No. 2)  1 AC 22.
The current argument, said the Court
amounts to an invitation not just to usurp the function of Parliament but to render a provision in primary legislation redundant by judicial legislation which contradicts it. The claimant appeals to an inherent jurisdiction and asks us to use the common law to “react to unjust decisions of Parliament” founded on a Bill laid before it by Ministers which did not reflect constitutional principles of fairness, balance and justice. In my judgment that is not an appeal to the rule of law but an invitation to subvert it.
Indeed were the court to so order, this would be contrary to the constitutional settlement emerging from the 1688 Bill of Rights – parliamentary sovereignty.
This seems all reasonably straightforward in respect of the current position, under which defendants’ costs orders can be made in favour of those not qualifying for legal aid. But I cannot help being troubled by the fact that a private prosecutor (think a wealthy prosecutor such as Virgin in the Zinga TV rip-off case) can recover reasonable costs charged by skilled solicitors from central funds whereas the reasonable costs of equally skilled defence lawyers cannot be recovered at more than the very modest legal aid rates.
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