The Tax On Justice

Nigel Adams is a Member of Parliament who was elected as Deputy Speaker of the House of Commons. He was recently accused of serious criminal offences and resigned as Deputy Speaker in order to concentrate on his defence. He was acquitted after a lengthy trial in which the jury quickly found him not guilty. Like many others, he did not qualify for legal aid and had to pay the costs of his defence out of his own savings.

He spent £130,000 on his defence, which to me seems a  smaller sum than it might have been. Under the system of English Law a defendant who is acquitted cannot get his legal costs paid by the prosecution. In snooker terms, the prosecution is on a shot to nothing.

The Prosecution has claimed that it prosecuted Mr Evans using the same criteria that it would have used when prosecuting anyone else. I doubt the truth of those statements. Recently there has been a fashion amongst prosecutors for prosecuting famous people for historic offences regardless of the strength of the evidence. We have seen this fashion in prosecutions of disk jockeys, actors and other celebrities which is almost certainly a reaction to the failure of prosecutors to prosecute famous people in the past where the evidence warrants it. We know that Jimmy Saville was never prosecuted for his actions. Peter Mandelson also has escaped having to answer allegations that he committed mortgage fraud when the evidence seem to justify a prosecution.

Fashions in prosecution come and go; prosecutors unfortunately are under the influence of public opinion and in some cases under the influence of politicians. Regardless of fashions in prosecutions, there are some matters which are beyond fashion and go to the heart of a just system of law. I cannot think of one good reason why a person who is acquitted should have to pay the costs of his or her defence out of his or her own pocket, unless it can be said that the person brought the prosecution upon himself or herself.

What is not merely unjust  (yes, in this essay we have a concept of “mere” injustice) but is also blatantly wrong and immoral is that a successful defendant should be taxed on the money he or she spends on the defence. In the case of Mr Adams, out of the £130,000 spent £21,666 was value added tax. The state manages to profit even from an unsuccessful prosecution. Mr Adam has had his life savings wiped out and he has committed no crime. Others who have been prosecuted have had to sell their homes as well as lose their savings when they have committed no offence at all. They have been punished by the rules that prevent them from being reimbursed their costs in circumstances where they have committed no offence at all.

Many of these failed prosecutions have involved allegations of rape, a crime that is easy to allege but hard to prove. There is great pressure on prosecutors to prosecute on the slightest evidence of rape, with some pressure groups claiming that a woman who alleges rape should always be believed.

Doing justice involves punishing the wrongdoer and not punishing the person who has done no wrong. By not reimbursing costs the person who has done no wrong is effectively fined the amount that he has paid in costs, a substantial portion of which the state receives as tax. The law is incredibly complex – far more complex than it was when I entered it more than forty years ago. It is not desirable or possible for an accused to defend himself or herself without legal advice, which is expensive and upon which value added tax must be paid. This is not a system of justice that we in Britain should be proud of.  Taxing justice  cannot be justified.

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