A criminal barrister has launched an insurance policy for defendants facing ‘staggering’ legal fees for their defence in the Crown court following changes to legal aid funding, writes Elizabeth Davidson.
Low and middle-income earners charged with a criminal offence often struggle to pay their contributions to their defence. Some are opting to dispense with legal representation altogether and are turning up at trial with neither solicitor nor counsel. The reason is the re-introduction of means-testing in 2010, under which anyone with a disposable income of more than £3,398 or assets worth more than £30,000, could find themselves liable for fees running into thousands and sometimes even hundreds of thousands of pounds.
The Crown court deals with about 100,000 defendants each year, of which about 25,000 have to contribute towards their defence costs.
The sight of clients struggling to pay their legal bill prompted criminal barrister Mark Roochove to set up an insurance policy reckoned to be the first ever. Policy-holders will pay £29.99 for a year’s cover and are eligible for up to £20,000 towards their personal liability for legal aid contribution in the event of criminal proceedings.
‘The change to legal aid funding is having a dramatic impact,’ comments Roochove. ‘People cannot pay, and if so, they are not represented. I know of cases where, and on indictable, serious matters, people have turned up without a solicitor or counsel, and the judge has been asking, ‘what on earth is going on? Where’s your representation?’, and they have had to explain that they cannot afford any.
‘I think that is not how justice should be done. I thought there must be a way to solve this, and approached Lloyds of London.’
He cites the examples of a carpenter in his 30s who struggled to pay monthly contributions of £2,200 for the first five months of his trial for causing death by dangerous driving, and a Polish lorry driver who claimed his employers made him fiddle his tachograph records and had to pay £1,100 per month during his trial.
‘These are ordinary people, who may be struggling financially, and have been accused of a crime,’ he says. ‘They want to clear their name and the only way to do that is through the courts, but it costs them a fortune to do so. It’s a real burden.
Mark Roochove, of 2 Pump Court, has set up a company, Legal Services Protection, to launch the product. He is responsible for marketing, along with two colleagues. Cover is provided by Tasker & Partners, a Lloyds-registered broker. The policy is underwritten by Inter Partner Assistance SA, part of the Worldwide Axa Group.
Policyholders must confirm they have not been accused of committing a criminal offence in the past ten years, and, unless a conflict of interest arises, must use a solicitor who is a panel member of Arc Legal Assistance, a provider of legal expenses insurance. There must also be ‘reasonable prospects’ of success in defending the prosecution before a claim can be accepted.
Under means-testing, which replaced free universal legal aid in 2010, a defendant must contribute towards their criminal defence costs if their annual disposable income is more than £3,398. According to the Legal Services Commission, the amount is divided by 12 to give a monthly figure and the defendant pays 90 per cent of this each month for the first five months of the case. They may also be asked to pay from their capital if they have more than £30,000 in assets or plead quilty.
The minimum they can pay each month is £254 and there is a range of maximum payments.
Defendants may have to pay up to £185,806 for a homicide or other grave offence, up to £153,039 for an offence of dishonesty, or £28,023 for an offence against public justice. A burglary charge could cost them £6,731, while a serious drugs offence costs £29,453.
If the defendant is acquitted then their contributions are refunded, with interest.
Roochove acknowledges that people are generally unlikely to think they will be involved in the criminal justice process, and says he is not looking to persuade people to take the policy out.
‘Many people may think it is completely irrelevant to them as they will never commit a crime, but real life happens,’ he says.
‘You can go out in your car, become involved in a collision and be charged with a crime, and end up having to pay an awful lot of money. We are endeavouring to make the public aware of the real cutbacks in criminal legal aid, which no-one seems to be talking about.’
Two tier system
Criminal law solicitor, Jim Meyer, partner at Tuckers Solicitors, says means-testing has had a ‘big effect’ and clients are often ‘shocked’ at how much they have to pay.
‘More people are not represented. There is definitely an increase in the number of people who are not represented. It is unusual but it definitely happens.’
However, he expresses doubt about whether many people will take the policy out.
‘My instant reaction is it’s just a sad indication of where we are today, that there’s a two-tier system to access to quality legal representation. It’s an innovative idea – but if you look at the small print, it says you have to certify that you have no criminal convictions in the last ten years. In order to get public awareness up, you would have to do a lot of marketing. Most people think it’s never going to happen to them.
‘You may have been paying contents insurance for years but there is an educational difference. You may have been paying for years, and if you’ve never been burgled or had your house flooded then you know someone who has, so you become educated to it. I don’t know if people would become educated to this.’
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