Paying the Prosecution Costs
"WHERE A DEFENDANT IS CONVICTED OF AN OFFENCE (WHETHER BY BEING FOUND GUILTY OR PLEADING GUILTY) OR IS FOUND TO BE IN BREACH OF A COURT ORDER, THE DEFENDANT CAN BE ORDERED TO PAY SUCH PROSECUTION COSTS AS THE COURT CONSIDERS JUST AND REASONABLE"
Where a defendant is convicted of an offence (whether by being found guilty or pleading guilty) or is found to be in breach of a court order, the defendant can be ordered to pay such prosecution costs as the court considers just and reasonable. The Criminal Practice Direction X Costs (paragraph 3.4) provides that a costs order should be made where the court is satisfied that the defendant has the means and the ability to pay. The sum must be specified by the Magistrates/Judge when making the order.
The defendant is entitled to know the costs in advance: ‘The prosecution should serve upon the defence, at the earliest time, full details of its costs so as to give the defendant a proper opportunity to make representations upon them if appropriate. If a defendant wishes to dispute all or any of the prosecution’s claim for costs, the defendant should, if possible, give proper notice to the prosecution of the objections proposed to be made or at least make it plain to the court precisely what those objections are.’ (This is taken from the same Costs Criminal Practice Direction, paragraph 3.6.)
Recovering Your Defence Costs
Privately Funded Defendants
"WHERE A DEFENDANT IS SUCCESSFUL (I.E. HE IS NOT CONVICTED OF THE OFFENCE(S) HE FACES) HE CAN APPLY FOR REIMBURSEMENT OF HIS DEFENCE COSTS. THIS IS KNOWN AS A DEFENDANT’S COSTS ORDER"
Where a defendant is successful (i.e. he is not convicted of the offence(s) he faces) he can apply for reimbursement of his defence costs. This is known as a defendant’s costs order. If successful, the costs are paid out of central funds (i.e. from public resources). The Costs Criminal Practice Direction provides (paragraph 2.2.1) that where a defendant is successful ‘A defendant’s costs order should normally be made unless there are positive reasons for not doing so, for example, where the defendant’s own conduct has brought suspicion on himself and has misled the prosecution into thinking that the case against him was stronger than it was.’ Where a defendant faces multiple charges and is convicted of some but not others, the court can still award costs in relation to those matters that were not proved.
"THE STING IN THE TAIL HERE IS THAT, EVEN IF THE APPLICATION IS SUCCESSFUL, THE COSTS THAT CAN BE RECOVERED ARE LIMITED TO LEGAL FEES AND THESE FEES, IN TURN, ARE CAPPED AT LEGAL AID RATES"
The sting in the tail here is that, even if the application is successful, the costs that can be recovered are limited to legal fees and these fees, in turn, are capped at Legal Aid rates. For this reason, it is extremely unusual for an acquitted defendant who has been paying privately for his defence to recover the costs of successfully defending himself, let alone for his lost earnings or otherwise for time spent preparing his case. In addition, only individuals (as opposed to companies and other organisations) can recover these limited defence costs in the Crown Court and Magistrates’ Court. Finally, to be able to receive defence costs, the defendant must have applied for legal aid, and then be determined to be ineligible to receive it. That's right - without a determination of financial ineligibility for legal aid, no costs can be recovered in the event of an acquittal.
Legally Aided Defendants
Defendants costs orders can also be made to defendants who have the benefit of legal aid if they are not convicted, or are convicted of only some offences they face. However, if a defendant is legally aided he cannot claim the costs of legal representation covered by legal aid, so any such claim is limited to personal costs directly related to the proceedings. This often means little more than travel expenses.
However, a legally aided defendant who has paid legal aid contributions can seek to recover these expenses through applying for a defendant’s costs order.