WHEN LEGAL COSTS CAN BE INCLUDED IN DEFENDANTS COSTS ORDERS
FEBRUARY 2013
Since the staggered implementation of the Legal Aid, Sentencing and Punishment of Offenders Act
2012 (LASPO) there has been a degree of uncertainty regarding the circumstances in which
defendants who have been acquitted, or successful appellants in criminal proceedings, may be
awarded recompense for their costs by way of a Defendants Costs Order (DCO).
The relevant legislation for determining this is schedule 7 of LASPO and this now applies to
proceedings commenced on or after 1st October 2012. Those proceedings commencing before
that date will continue to be governed by the previous system for the determination of awarding
amounts from central funds to successful appellants and defendants in criminal proceedings.
Schedule 7 LASPO has the effect of inserting a new section 16A of the Prosecution of Offenders
Act 1985 (POA) which serves to define 'legal costs' as fees, charges, disbursements and other
amounts which fall to be payable in respect of advocacy services or litigation services, particularly
expert witness costs.
The important point for individuals, is that the new section 16A(2) of the POA essentially provides
that legal costs cannot be included in a DCO except in certain specific circumstances which are set
out in s16A(3)-(5) of the POA. There are three broadly defined circumstances;
(i)
where the accused is an individual and the DCO is made pursuant to s.16(1), (3) or
section 16(4)(a)(ii) or (iii) or (d) of the POA;
(ii)
where the accused is an individual and the costs were incurred in proceedings in a
court below, which were either proceedings in a Magistrates court or on appeal to
the
Crown Court under the section 108 procedure of the Magistrates' Courts Act 1980;
or
(iii)
where the legal costs were incurred pursuant to proceedings in the Supreme Court.
For proceedings in the Magistrates' Court, it will remain the case that legal costs for an acquitted
individual can be included in a DCO. However, in proceedings in the Crown Court, legal costs can
only be included in a DCO when the proceedings form an appeal of conviction or sentence, to the
Crown from the Magistrates' Court. Where the proceedings in question are proceedings before
the Crown Court on indictment, legal costs cannot be included in a DCO.
This is the point that, anecdotally, has caused the most uncertainty amongst practitioners and it is
clearly an important consideration for privately funded defendants involved in proceedings which
commenced after 1st October 2012.
For the avoidance of doubt, commencement of proceedings for the purposes of the new Schedule
7 regime takes place;
(i)
in a Magistrates' Court when a warrant, requisition or summons relating to the
proceedings is issued;
(ii)
on an appeal to the Crown Court when a notice of appeal is served;
(iii)
in the case of other proceedings in the Crown Court, when they are committed,
transferred or sent to that court;
(iv)
in the High Court, when an application for leave to appeal by way of case stated is
made (or in the absence of such an application) when notice of appeal is given;
(v)
in the Court of Appeal, when an application for leave to appeal is made or (in the
absence of such an application) when notice of appeal is given;
(vi)
in the Supreme Court, when an application for leave to appeal is made.
DCO's can be awarded in the Court of Appeal but only in very limited circumstances relating to
unfitness to plead and insanity where the Court of Appeal has allowed an appeal under Part 1 of
the Criminal Appeal Act 1968 against a verdict of not guilty by reason of insanity, or a finding
under the Criminal Procedure (Insanity) Act 1964 that the appellant is under a disability or that he
did the act or made the omission charged against him. Equally, a DCO will include legal costs in the
Court of Appeal where the Court allows, to any extent, an appeal under section 16A.
[2]
If the costs have been incurred in a court below the Court of Appeal, legal costs can be included in
a DCO made by the Court. In the Supreme Court, legal costs can be included in the DCO but only in
with regard to those costs incurred specifically in relation to the proceedings below that was
either a magistrates’ court, or the Crown Court dealing with an appeal against a magistrates’ court
conviction or sentence.
Richard Gibbs
St Ives Chambers
13 February 2013
[3]