In response to the House of Commons Justice Committee's recommendations, the government has announced its intention to amend legislation regarding the payment of lawyers' fees in private prosecutions. BCL associates Umar Azmeh and Anoushka Warlow discuss in their latest article published by LexisNexis.
Here's an extract from the article:
What further developments does this herald e.g. in respect of the recovery of costs by private prosecutors and the establishment of a central register?
At present, private prosecutors are entitled (regardless of the outcome of the proceedings) to claim investigation and prosecution costs from central funds, which are not limited to the costs that the state would have incurred in bringing that same prosecution. Where successful, a private prosecutor can claim costs from the defendant. It follows, therefore, that a convicted defendant may be liable to pay more to a private prosecutor than if they were prosecuted by the CPS. In contrast, what an acquitted defendant can recover is capped at legal aid rates.
In order to address what it describes as an "inequitable" position, the Government has agreed:
- to limit the recovery of the costs of a private prosecutor from central funds by introducing a cap at legal aid rates;
- to consult further on whether the costs recoverable from a convicted defendant should be limited, by capping them either at legal aid rates or by reference to what the CPS could recover; and
- to reflect further on whether to introduce wider discretion to reduce or withhold payment of costs from central funds in the event of an acquittal.
Limiting recovery to legal aid or CPS rates will result in private prosecutors being able to recover only a fraction of their prosecution costs. Such reforms may dissuade victims of crime from commencing private prosecutions (or cause them to do so without proper legal representation and therefore without all the safeguards which come with being appropriately advised). This consequence would run contrary to the Government's acknowledgement that private prosecutions have a valuable part to play in the justice system.
Whilst the reforms intend to bring the costs recovery position in line with that applicable to defendants, it is important to note that the cap on acquitted defendants' rights to recover their costs has bought about some unjust consequences. An alternative may be therefore be the proper resourcing of central funds so that both acquitted defendants and private prosecutors are able to recoup their actual costs, subject to those costs being reasonable and proportionate.
The above being said, the suggested reforms may go some way towards tackling potential misuse of the private prosecution regime in circumstances where victims are motivated primarily by the recovery of misappropriated funds, but choose not to pursue civil proceedings due to the costs risks which arise. Private prosecutions will no longer provide a costs-sheltered mechanism by which to seek compensation.
Separately, the Government has also agreed to establish a central register which will record details of all private prosecutions commenced in England and Wales to address the scarcity of information surrounding private prosecutions. It is of note, however, that the register will not record anything beyond the identities of the parties, the alleged offence, and granting or refusal of the summons application.
This article was originally published by LexisNexis on 11/03/2021. You can read the full version on their site here.
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