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Award Of Expenses Where Defendant Acquitted Or Prosecution Not Proceeded With
02 May 1985
Volume 78

'Where—

  • (a) an accused is acquitted or
  • (b) an accused is charged with an offence and the prosecution is not proceeded with or is dismissed by the court or the court finds that there is no case to answer,
  • the court shall order the accused's expenses to be paid either out of the Legal Aid (Scotland) Fund or by the prosecutor.'.— [Dame Judith Hart.]

    Brought up, and read the First time.

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    I beg to move, That the clause be read a Second time.

    First I shall outline the background to the new clause, and the present position. Contrary to the position in England and Wales, the position in Scotland is that someone who is found innocent or who it is found has no case to answer cannot have his legal expenses paid unless he is a recipient of legal aid. About 10 years ago the Thomson committee reported on several matters relating to courts and procedures in Scotland. In one of its reports it looked at this issue rather briefly, and somewhat casually considered the arguments for changing the system in Scotland, and dismissed them. That was the last opportunity for considering the issue.

    My concern arose originally from the juxtaposition of three constituency cases during the same period a few years ago. As the Solicitor-General and the Secretary of State will know, I tabled several questions seeking statistics, had some brief correspondence on the matter with the Lord Advocate, and was involved in an exchange with the Secretary of State for Scotland during Question Time. I asked the Secretary of State whether he would consider ensuring that expenses could be paid to accused people
    "where the verdict is 'not guilty' or where there is a formal verdict that there is no case to answer."
    He said no, and added that he remained persuaded by the assessment of the Thomson committee. When pressed a little further, he said:
    "I must observe that any cases of genuine hardship are covered by legal aid. For people who are otherwise affected, there are other sources of aid. The Thomson committee went into the issue extremely carefully"—
    I do not agree with that—
    "and I do not believe that it would be worth while trying to second-guess by having a full review of the matter."—[Official Report, 30 November 1983; Vol 49, c. 874.]
    That is the Secretary of State's position.

    I shall briefly draw the attention of the House to some of the relevant facts. I believe that the 1983 figures are available, but I do not have them. However in 1982, in the case of crimes, 1,459 people had the charge against them withdrawn, and the number of those found not guilty was 3,424. In the case of offences, of those pleading not guilty, the charge was withdrawn in 1,830 cases and the person was found not guilty in 2,666 cases.

    That gives us a total of about 9,400 people. They had pleaded not guilty, or they were found to be not guilty, or the charge against them was withdrawn. The question, therefore, is whether any of those cases were not covered by the Secretary of State's assumption that legal aid was available for genuine hardship cases and whether money was available from other sources for cases of real hardship. Is there any reason to suppose from those figues that there is not a great need not for second-guessing but for having a further look at the matter and coming to a different conclusion?

    Inevitably, the number of cases varies between one part of Scotland and another. Because of my interest in two constituency cases, I obtained the figures for Lanark sheriff court and compared them with those for Scotland as a whole. I have no reason to suppose that there is not so great a variation between sheriff courts and the figure for Scotland as a whole as I found there to be between the Lanark sheriff court and the figures for Scotland as a whole.

    The percentage of those who pleaded not guilty where the charge was withdrawn varied between 8·6 in 1980, 13·6 in 1981 and 12·1 in 1982. The percentage of crimes was almost constant at between 12·5 and 13·5. In the Lanark sheriff court, the percentage of those pleading not guilty where the charge was withdrawn rose from 2 per cent. in 1980 and 2 per cent. in 1981 to 37 per cent. in 1982. The figure of those pleading not guilty who were found not guilty in the Lanark sheriff court was more than double the figure for Scotland as a whole.

    One consideration which clearly has to be borne in mind is that whether or not an accused person who pleads not guilty is found not guilty or has the charge against him withdrawn may be determined at least as much by the decision of the police and the procurator fiscal about whether to bring a prosecution. If that is so, the misfortune of somebody who finds that he has considerable legal expenses to bear can be placed at the door of others, certainly not himself.

    I shall mention my two constituency cases, although not by name, in order to illustrate my point. One concerns a business man in a small way who was charged with reset. He was summoned five time to attend the Lanark sheriff court, and appeared in the dock for about one and a half hours. On each occasion his defence lawyers had to be at court. When the prosecution had brought their case, the sheriff ruled that there was no case to answer. This person's legal costs totalled about £1,100 but he was over the limit for legal aid. There was no professional association, trade union or any other organisation to help him. Therefore, he was brought to court on a relatively serious charge and was then faced with the personal problem of having to pay legal charges, even though the sheriff had ruled that the prosecution had not produced sufficient evidence to justify proceeding with the case.

    My second illustration relates to a family who had been involved in a contretemps with the police. Fifteen charges had to be faced in the Lanark sheriff court. In the case of 13 of those charges it was found that there was no case to answer, while there was an aquittal in one case and the other was not proven. The legal costs for that defence were £2,500. They were a modest family, living in a council house, but just over the legal aid limit when one took account of the earnings of those members of the family who were involved. That is not right.

    9.15 pm

    What did the Thomson committee argue? Let me take the essence of its argument. It said that the possibility of expenses being awarded against an accused could put indirect pressure on him to plead guilty. So it rightly rejected the idea that expenses could be awarded in that sense. It said that in the case of acquitted persons there had been strong public pressure for the introduction of awards of expenses. It said:
    "It is argued in favour of the payment of expenses to acquitted persons that it is wrong in principle that a person who should not have been prosecuted should have to bear the cost of defending himself against a charge of which he is innocent. Some of the extreme cases mentioned by our witnesses as appropriate for the exercise of judicial discretion in an award of expenses to an acquitted person were where the Crown pursues a case with insufficient evidence or the prosecution fails and the cost of the defence results in undue hardhsip on the accused."
    That is more or less the case in the two examples that I have quoted.

    The committee then went on to deal with less likely cases:
    "where there is gross negligence on the part of the Crown which results in an unjustifiable prosecution or where there is an obviously frivolous prosecution or where the Crown libels a manifestly exaggerated charge."
    Those three categories are rarely met. However, the first category, as we have seen from the statistics, is, according to the judgment of the courts, found by no means infrequently.

    The Thomson committee went on to say:
    " We consider it important to bear in mind that many organisations and associations already make arrangements to assist financially accused persons in the conduct of their defence. For example, motoring organisations, trade unions, various professional organisations, insurance companies and local authorities."
    That is a somewhat superficial statement. There may be many who are assisted in such a way, but equally there will be a number who are not. The law, if it is to take account of fairness and justice, must take into account the minority as well as the majority.

    The Thomson committee did not even attempt to produce any evidence to support that statement. It just said that there would be motoring organisations and trade unions, but it produced not a scrap of evidence to support that claim. If the matter were investigated intensively, I doubt whether it would be possible to find convincing evidence to support that statement.

    The Thomson committee went on:
    "In addition, there is an extensive free legal aid scheme in operation which ensures that persons of limited means are not hampered in their defence and which would make the award of expenses to an acquitted person unnecessary in many cases."
    Of course it would be unnecessary in cases where legal aid was awarded, but there are, as we know, particularly with the considerable limitations that are being defined for the award of legal aid, many cases in which there is no legal aid. The committee said:
    "We do not think the number of people involved justifies the introduction of the system."
    The committee spent a lot of time talking about a Canadian report but very little talking about evidence derived from the Scottish experience.

    The Thompson committee's arguments were trivial. They did not take account of the needs of minorities or the extent to which the statistics—I assume that similar statistics were available at that time—showed the proportion of cases brought before the courts where a not guilty plea is entered and where a person is found not guilty or where the court says that there is no case to answer. Therefore, it is not a tiny minority. Natural justice demands that when a person is found innocent—or, even more to the point, where it is found that there is no case to answer—there should not be added to the anxiety the immense burden of legal expenses amounting to £1,000, £2,000 or even more.

    The second reason for looking again at this matter is that if expenses were awarded to those found innocent or where it was found that there was no case to answer, that could be an effective consideration for the procurators fiscal and the police before they brought cases. That could only be good in ensuring that they re-examine the evidence before persisting in bringing a case to court. Finally, the cost would not be considerable in comparison with the exercise of justice that would be represented.

    This practice cannot continue for another 10 years. It is all very well to accept the findings of a committee, but that was only one of its many findings. I venture to suggest that it did not have the full consideration that it deserved. If justice and common sense demand a change, there is no reason why the Government should not be ready to say, "Yes, we will look at this matter again. We do not rest on Thomson for all time. We think that it is a section in the report that is too insubstantial to give us ground to say that it must be true for all time."

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    My right hon. Friend the Member for Clydesdale (Dame J. Hart) has raised an important issue. It is important to place on the record the difference between criminal legal aid and civl legal aid. Civil legal aid is entirely income-related and is either granted or refused following consideration by the legal aid committee. The same cannot be said of criminal legal aid. It is partly income-related, but in recent months there have been a number of instances when sheriffs have refused legal aid on the basis that the interests of justice would not be best served.

    My right hon. Friend's new clause might not meet the point that she is trying to pursue, but I have reached the firm conclusion that there should be a system that when applications for criminal legal aid occur the sheriff should not refuse them, on the ground that the interests of justice would not be best served, when subsequently the accused is acquitted, or when even before the case comes to court, the Crown counsel decides to desert the case. It is obviously not a matter for the procurator fiscal. He does not have an interest in the granting or refusal of legal aid or even in the verdict of the court. His role is to decide whether, in the first instance, the case should be brought to court, and, in the second instance, to which court it should be referred—the district court, the sheriff court or, in exceptional circumstances, the High Court.

    In view of developments during the past two or three years, there should be a system whereby an accused person who is refused legal aid on the basis that the interests of justice would not be best served, and who subsequently is not proceeded against or is acquitted, should have the right to return to the court and make a fresh application for legal aid. There must be injustice in the sort of case mentioned by my right hon. Friend. I hope that the Solicitor-General will be flexible in his approach to the problem that has been highlighted by the new clause.

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    I appreciate that the right hon. Member for Clydesdale (Dame J. Hart) has pursued this matter for some time and that she is probably more conversant with the provisions of the Thomson report than are many hon. Members. She has raised the matter more than once with my right hon. Friend the Secretary of State. However, at the outset I must say that I do not recommend the House to accept the new clause.

    About 8 per cent. of those proceeded against for criminal offences in Scotland are acquitted. That includes cases where the judge or sheriff has directed that there is no case to answer. The right hon. Lady produced statistics based on what she discovered from Lanark sheriff court. I have no reason to doubt what she said, but she will appreciate that the position varies from one court to another and that there are differences in the rates of acquittal.

    The important point to remember, although the right hon. Lady may not accept it, is that some of those acquitted will have had their expenses met from legal aid. The hon. Member for Falkirk, East (Mr. Ewing) talked about criminal legal aid in Scotland. Although his analysis was correct as far as it went, it is worth underlining the fact that Scotland has a non-contributory scheme. Therefore, once an accused person has been granted legal aid, his expenses will be paid. The civil legal aid system is different.

    Other accused people receive help from schemes operated by motoring organisations, trade unions and others. I do not wish to go into this in detail——

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    The Minister asserts that many people are helped by other organisations. Could he at least ensure that the next round of statistic-gathering will provide that information? Instead of the Minister making an assertion without producing facts, let us have some facts.

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    During the recent unhappy miners' strike, legal aid was refused in some cases. I was told that some individuals would go into court unrepresented. I said in the House that if any hon. Member was aware of people going into court unrepresented, I should be interested to hear about it. It is extremely difficult for the prosecution to know when someone comes into court with a lawyer to represent him whether the accused is paying for the defence or whether an organisation is paying for it. All that is obvious to the prosecution is that the person is represented, and it would be improper to ask him who was paying the bill.

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    Of course, the National Union of Mineworkers, as one would have expected, paid the defence costs of the miners who were refused legal aid. I hope that the sheriffs did not expect that to happen when they refused legal aid.

    9.30 pm

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    The point made by the right hon. Member for Clydesdale (Dame J. Hart) was that individuals would have to pick up the bill for their own defence. I was saying that other organisations, especially motoring organisations, picked up the bill for many people. It is difficult, if not impossible, for the Crown or the Government to discover who pays the bill when an accused person is represented.

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    Some miners who are charged with offences arising from the miners' strike will not be represented by lawyers paid for by the National Union of Mineworkers. That is because the NUM has decided to represent only members charged with offences relating to picketing.

    One of my constituents was charged with an offence arising from the miners' strike, but not picketing. He will not be represented by the NUM, and he has had to make arrangements for his own defence. I do not know whether my constituent has been granted legal aid, but it would be wrong to assume that the NUM is defending all its members who have been charged with offences arising during the dispute.

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    I did not suggest that. I was saying that trade unions, motoring organisations and professional bodies often pay the bill.

    The case for such a provision, as the right hon. Lady said, was put to the Thomson committee. The right hon. Lady has expressed her views forcibly about its decision, but it rejected the proposal in its second report.

    I have responsibility for procurators fiscal in Scotland and I take the view that they do not commence proceedings without the sound reasons identified by that committee.

    Apart from those from the right hon. Lady, the Department has received no similar representations. The argument that legal expenses should be met from public funds has to be justified by need. In England and Wales, where costs in certain instances are payable to acquitted persons, costs are also awarded in favour of the prosecution in some circumstances. It is difficult to operate one arrangement without the other. There would be little enthusiasm for the suggestion that those who are found guilty should have to meet the costs of the prosecution.

    Practical difficulties would arise in funding and administering the proposed scheme. The clause contains anomalies. If an accused person is charged with several offences—as often happens—but not all are pursued to conviction, or if the individual is acquitted, difficulties in relation to status and expense arise.

    The right hon. Member for Clydesdale said that she did not think that her proposal would cost much. It is difficult to estimate the cost, but we are talking about millions of pounds.

    There is no reason why such expenses should be met from the legal aid fund when under the present Scottish arrangements the accused would not qualify for legal aid or legal advice and assistance. Legal aid should be available only when the relevant criteria are met. I cannot recommend the wide extension proposed to the House.

    The hon. Member for Falkirk, East (Mr. Ewing) talked about the interests of justice provision in the legal aid scheme. The hon. Gentleman will know that a consultation paper on legal aid was issued at the beginning of last month and the point that he made will be considered. It is an interesting matter on which the Government would like to receive views, but it does not arise directly out of the new clause.

    I have little doubt that my answer has not satisfied the right hon. Member for Clydesdale, who is worried about this complicated matter, but I hope that I have set out clearly the reasons why the Government are not prepared to approve the introduction of the scheme which she proposes.

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    I am disappointed, because the Solicitor-General for Scotland and his colleagues have closed minds on the matter. Their arguments are as frivolous as those presented in the Thomson committee report.

    The Solictor-General for Scotland told us what proportion of people were found innocent and he said that most of them were on legal aid or had their expenses paid by other people. On that basis, his estimate of the cost of my proposed scheme was ludicrous.

    The hon. and learned Gentleman equated the innocent with the guilty when he said that in England the defence might have the pay the prosecution's costs. I am worried about the injustice suffered by the small number of people against whom cases are not proceeded with—that is probably the fault of the police or the procurator fiscal—or who are found innocent when perhaps the charge against them should never have been brought.

    What happens to the guilty should not bear too heavily on our consideration. I hope that the Government will continue to think about the matter and perhaps even have some new thoughts. I beg to ask leave to withdraw the motion.

    Motion and clause, by leave, withdrawn.