Opinion: Regina v Nigel Evans should wake up MPs

Statue of Justice - The Old BaileyNigel Evans’s acquittal on charges of rape and sexual assault has triggered various expressions of concern.
Those expressed, trenchantly by some, are:

    1. The Crown should never have prosecuted him because the evidence was weak.
    2. The Crown treated him differently because he is an MP.
    3. The case shouldn’t have relied on alleged victims who did not consider themselves to have been victims.
    4. Nigel Evans is left with a huge bill to pay his defence.

“The Crown should never have prosecuted him because the evidence was weak.” I am very surprised that commentators would express this opinion as confidently as some have. Without seeing all of the evidence (and news reports are not the same) you cannot form a proper view. The judge can stop the case if he considers the evidence is so weak no reasonable jury could convict. He did not do so.

“The Crown treated him differently because he is an MP.” I see no evidence that the Crown would not have prosecuted if he was not an MP. If there was evidence of that it would have been grounds for the defence to ask the judge to stop the case as an abuse of process. As far as I am aware, no such application was made.

The case is going to be reviewed. If it comes to light that the decision to prosecute would have been different if he had not been an MP then that will be important to address in future policy for the Crown Prosecution Service. But I see no evidence on which certain commentators are asserting it as fact.

“The case shouldn’t have relied on alleged victims who did not consider themselves to have been victims.” Saying that cases should only be brought when alleged victims do see themselves as victims is dangerous. Plenty of victims do not see themselves that way, especially in a wide range of domestic and sexual abuse cases. If policy was adopted to not act unless the victim wanted you to, then many offenders would escape justice. Criminal law is there not only to protect individual victims but society as a whole – this is why it is in the Queen’s name, not the specific victim’s, that public prosecutions are brought.

“Nigel Evans is left with a huge bill to pay his defence.” Where I think the concerns are well-founded are over Nigel Evans’s costs. It is an outrage that the state should prosecute you, you are found not guilty by the jury, but then be left with the costs of your defence.

But MPs have produced this unjust situation. Less than 10 years ago, Nigel Evans would not have had to pay for his defence. He could have been represented on a legal aid certificate that would pay for solicitor and counsel. Those costs would be capped on a fixed fee basis. Counsel’s fee for the three-week trial and preparation would be thousands, not hundreds of thousands, of pounds.

Labour brought in punitive means-testing for legal aid, which the Coalition has kept.

It used to be the case that acquitted defendants who had paid privately could ask for a Defence Costs Order. This meant the state would reimburse their defence costs. Judges had a (rarely used) discretion to disallow defence costs.

Labour’s problem was that having cut back legal aid, public money was going to pay for more Defence Costs Order for innocent defendants who had paid privately. So in the end the right of the innocent defendant to get their costs back was scrapped too.

That is how we have arrived at an Orwellian situation where Nigel Evans, and thousands of defendants every year, are caused huge financial harm even if they are not guilty. They should get their costs back. It is only fair.

But the rules that have been so unjust to Nigel Evans were voted for by Parliament: brought in by Labour and left in place by the Coalition. Some of Nigel Evans’s colleagues who decry their friend’s situation voted for the very provisions that penalise him.

MPs of all parties need to be more circumspect about proposals on justice. Don’t assume that you can make promised financial savings without costs, financial and human, elsewhere.

* Antony Hook is a Liberal Democrat MEP for South East England and has practised as a barrister since 2003.

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36 Comments

  • “The case shouldn’t have relied on alleged victims who did not consider themselves to have been victims.”

    Although this has to be a judgement call by the authorities concerned, I do think in this case the police and CPS were wrong – bordering on silly. To call three grown men to witness for the prosecution, when all three said they didn’t class themselves as victims is surely scoring an own goal. I bet the defence lawyers couldn’t believe their luck.

  • Antony is absolutely right in the points he makes. The only thing I would add is this. Unlike in almost every other rape case prosecuted in the courts these days, the prosecution chose to instruct a very senior and doubtless very expensive QC, senior Treasury Counsel no less. That was the CPS’ choice and it was very unusual. The defence on the other hand have no such choice: it has to go cap in hand to the judge if they want to instruct a QC at public expense. One might have thought that if the prosecution has a QC, that would be enough. Not so. I personally doubt whether a silk would be available on legal aid for a case like this because of the rigidity of the criteria that the court has to apply. Frankly though, in a case like this , a defendant ought to be represented by one if the prosecution is. Nigel Evans did have a silk and he paid privately. Here is where the inequity lies. Defence private costs are not reclaimable even in the event of an across the board acquittal. My own view is that if the state chooses to prosecute someone and uncharacteristically chooses to employ the most senior and expensive counsel around to do so, then if that person is forced to spend tens of thousands to create a level playing field with the prosecution, and the prosecution fails to prove guilt, those costs should be recoverable. The sense of injustice if not is obvious.

  • Yes. The problem numbered #3 needs to be traversed very carefully, and the State (and Anthony Hook) had it wrong in this case. In some cases of domestic violence it is right that the state takes over prosecution in a case where the “victim” clearly refuses to prosecute for reasons of fear or habit, and where there is general agreement that violence has occurred (for example, clear medical evidence, etc).

    But to prosecute on behalf of “victims” who not only reject that they are victims, but where there is no medical evidence and little other evidence that they were ever a victim, is insane. If we travel down that road, we will end up with the State intervening in private consensual situations and creating two new victims where there were previously none. It isn’t in anyone’s interest that that happens – it is a dangerous extension of creating victimless crimes. (It’s worth pointing out that the whole of prostitution law is essentially based on this premise, as was the whole of the criminalisation of homosexuality).

  • Agree, MBoy. Seems to me we are verging on a new sexual puritanism, where approaches and sexual activity should only be allowed under very tight conditions, and woe betide any people who decide not to do it that way. I also fear that charges of sexism and there being “women issues” are being intellectually mixed up with sexual activity, use of power to extract favours (modern day droit de seigneur, if you like), and straight crime such as rape and harassment / stalking etc. After all, sexual activity can be initiated by people of either gender.

    It cannot be in anybody’s interest to allow this muddying, and certainly not in the febrile post-Savile atmosphere. And, yes, some people ARE being tarred with the same brush, and some innocent people are being wrongly accused. We also enter the area of some people being self-described victims, where others are, by their own description NOT victims of the same activity. A minefield, all in all.

  • An excellent article with very well-made points.

    Reading Keith Vaz’s comments yesterday, I’m alarmed that MPs seem to want to bring the CPS to heel in order to look after their own. Doubtless there are thousands of failed prosecutions each year, but very rarely do MPs make a song and dance about them.

    @malc and @Mboy
    You may or may not be right, but I’d refer you to Antony’s comment :-

    “Without seeing all of the evidence (and news reports are not the same) you cannot form a proper view.”

    Unless you have access to all the same information the CPS had access to, how can you be so sure they got this wrong?

  • Another thought. If the powers that be decide that where someone has been someone else’s boss when sexual activity has been initiated an offence is likely to have been committed, then we are likely to see lots of couples put under unnecessary pressure.

  • G,

    I believe that the legislation was passed before 2010 but may have come into force since then. I did not wish to be partisan about it. We are in an unjust mess and the onus is on the parties of government to fix it.

  • Eddie Sammon 14th Apr '14 - 11:41am

    I don’t like the idea of anonymity for accusers or defendants.

    I think legal aid should be free for everyone. Individuals don’t have to pay to prosecute and they shouldn’t have to pay to defend.

    Thanks for writing an article on this.

  • Nigel Evans was on the Daybreak show today & this tweet says:

    Vincent McAviney
    ‏@VMcAVSKY
    Nigel Evans tells Daybreak he regrets his party having cut funding to legal aid having been through the experience he has

    so I’m not sure you’re correct in claiming it’s all Labour’s fault.

    It really is time this pointless ‘all Labour’s fault’ mantra is stopped – it’s childish & makes your audience sigh & ask why your party in govt hasn’t rectified it then.

  • MartinB,

    I think the mantra I hear all to often from Labour supporters that they never didn’t anything other than the righteous work of good in government is a dangerous fantasy. It is an insult to the lives they damaged. In my experience, Labour make little or no effort to understand the people who opposed the last government.

    Having said that, I say above that it is for the parties now in government to act to rectify the unjust provisions Labour enacted in government and my article is aimed more at those in government than Labour who are not.

  • Chris Manners 14th Apr '14 - 1:08pm

    You sound, for a lawyer, uncharacteristically hazy about when the legislation was passed. Why haven’t you got chapter and verse?

    I am not a lawyer, just google and came up with this. Sounds like the 2012 Act was what made the difference.

    http://www.lawsociety.org.uk/advice/practice-notes/defence-costs-orders/#dco3

    “Practitioners should be aware that the provisions of Schedule 7 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 relating to Defendants’ Costs Orders for the recovery of a successful defendant’s legal costs will apply to criminal proceedings commenced on or after the 1 October 2012

    This limited to legal aid rates legal costs recoverable in magistrates’ court cases, and completely prevented the recovery of legal costs in (non-magistrates’ court appeal) Crown Court cases.

    However, following the introduction of a financial eligibility threshold for Crown court legal aid from 27 January 2014, legal costs limited to legal aid rates will be recoverable in a Defendants’ Costs Order.

    You should advise your non-legally aided clients in criminal proceedings about the practical effect of these changes to the law on Defendants’ Cost Orders in the event that they are acquitted of an offence at trial or succeed in an appeal”

  • daft ha'p'orth 14th Apr '14 - 1:22pm

    Regarding costs, I believe the expression is ‘hoist by his own petard’. It’s only now that MPs should wake up to the effect of the changes that they have wrought? It’s all okay until it starts to personally inconvenience MPs?

    Right here and now, in Evans’ case, this situation is a beautiful example of poetic injustice.

  • Chris Manners 14th Apr '14 - 1:39pm

    “I think the mantra I hear all to often from Labour supporters that they never didn’t anything other than the righteous work of good in government is a dangerous fantasy”

    Given that we invaded Iraq, I don’t think that’s true.

    But it’s as well to be reminded of past failings we’ve forgotten about. I see Straw talked some Grayling-esque rubbish about legal aid.

  • Antony Hook Antony Hook 14th Apr '14 - 1:39pm

    Daft,

    Quite right. I fear the petard is even sharper than that.

    Not only did MPs vote for relevant legislation under both Labour and the Coalition, but I would be very surprised if MPs have not received correspondence from constituents caught by these provisions. But it took until an MP was a defendant for some of them to take to the airwaves.

  • Antony Hook Antony Hook 14th Apr '14 - 1:41pm

    Chris Manners,

    There is earlier legislation too (both primary and secondary). Real terms cuts in criminal legal began in 1997.

    I doubt that Acts and SI numbers are very interesting to people but as you rightly say, people who want it can find the legislation online.

    I think the main issue is to correct the unjust situation that we are now in.

  • Chris Manners 14th Apr '14 - 1:55pm

    I’d be interested though, as a barrack room lawyer.

    Certainly, everyone needs to agree on getting this changed.

  • I think we should bear in mind that people defending a criminal charge will only have to make a financial contribution if their household disposable income is greater than £37,500

    Mr Evans, presumably aware of the law his govt had passed, could have employed a lawyer who charged less for his/her services.

  • Mike Barnes 14th Apr '14 - 2:25pm

    How sick that the political class only gives a stuff about the legal aid stuff when it bankrupts one of their own. They were happy enough with the rules when it meant saving public money by bankrupting other innocent people.

    Incidentally I wonder which other injustices they’d rage against if it ever actually ruined the life of somebody in parliament. Maybe they’d care about youth unemployment if it one of their children couldn’t find a job? Maybe they’d do something about housing and rent costs if it ever bothered their family couldn’t get a taxpayer funded second home?

    It reminds me of the story of Rob Portman, Republican Senator in the USA who suddenly became a big believer in gay marriage last year when his own son came out. He was perfectly happy denying marriage rights to gay people for years, but when it hits close to home, he changes his mind. Erm what about other people’s children?

    Why do politicians in general only care about an issue when it hurts them or somebody they know? The entire coalition era has been about tough choices and hard spending decisions, as long as they only apply to the lives of other people.

    I feel bad for Nigel Evans, but he’s part of the parliament that made the rules. We’re all in it together Nigel remember.

  • Antony Hook Antony Hook 14th Apr '14 - 2:25pm

    The means testing is set out further here:

    http://www.justice.gov.uk/legal-aid/assess-your-clients-eligibility/crime-eligibility/means-test

    It is a very complicated formula.

  • Richard Wingfield 14th Apr '14 - 2:27pm

    A very interesting article and one with which I agree to a large extent.

    Whilst it is true that the Labour government made cuts in criminal legal aid, it is the Coalition who introduced the obnoxious provisions preventing an acquitted defendant from recovering all of his costs. It is important to get the history right. Defendant’s Costs Orders (DCOs) are governed by the Prosecution of Offences Act 1985 which, originally, allowed an acquitted defendant to receive all the costs of his defence. In 2009, under the last Labour government, Jack Straw (the then Justice Secretary) introduced secondary legislation which limited the amount that could be received to what would have been paid under legal aid rates. In June 2010, the High Court said that this was unlawful (The Law Society of England and Wales, R (on the application of) v The Lord Chancellor [2010] EWHC 1406 (Admin)) and outside of what was permitted by the 1985 Act. It was the Coalition government which amended the 1985 Act, through Schedule 7 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, to allow DCOs to be paid at legal aid rates.

    Whilst MartinB is correct that only those with a disposable income of greater than £37,500 will be ineligible for criminal legal aid, this means that a person who has such disposable income is forced to pay privately for their defence and, if acquitted, will only receive legal aid rates. Any person with less than that amount of disposable income who wishes to pay privately for their defence will also be in the same situation. No privately paid lawyer will charge legal aid rates – they will always charge significantly more. This is essentially a tax on innocence and one of the acts of this Coalition government that I find particularly appalling.

    So although Labour did try to make this change back in 2009, their failed. They would almost certainly have made the same changes the Coalition did had they won the 2010 election, however, so there can be no criticism of the changes from their end, but ultimately we – as part of the Coalition – must accept responsibility, not Labour.

  • daft ha'p'orth 14th Apr '14 - 2:30pm

    @MartinB
    Yes. He made a choice. One might even say he chose a luxury option, if one were bent to casual cruelty in the manner of recent governments.

    “His solicitor, Daniel Burke, said the CPS’s decision to instruct Senior Treasury Counsel, Mark Heywood QC, was above and beyond what would happen in normal cases where the defendant was not in the public eye.
    He said had Mr Evans relied on legal aid to fund his defence case, he would not have had the sort of representation to challenge the prosecution team on an equal footing. ”

    Or to put it another way, this guy is arguing that if Mr Evans had not paid for the supersized option, he would’ve lost. So, he paid for better service than that available to hoi polloi, he got it, and now, having got what he paid for, he thinks he deserves his money back.

    Don’t get me wrong: I think that a person defending a criminal charge should get competent legal support, full stop, because otherwise it makes a joke of the legal system. But I don’t believe that this guy is as special a snowflake as he thinks he is. Everybody is going to want the best defence team possible, just as everybody wants the best education for their kids and the best healthcare: everybody wants the best chances for a positive outcome. Evans, on the other hand, just seems to take the view that in his special case he should get a refund, as he saw the prosecution (Treasury Counsel) as special enough to require a particularly expensive choice of representation. Doesn’t work that way. Either legal aid rates are good enough for everybody or the system needs overhauling for everybody.

  • It’s interesting that it is assumed that “ordinary” barristers aren’t really good enough to do a proper job. The evidence is clearly not all that the jury will get to decide a case on.

  • Tony Dawson 14th Apr '14 - 4:12pm

    Firstly, the assumption that a good barrister can win any bad case is far from clear. I have defeated barristers while acting as a MacKenzie Friend in family law courts. It might be that I was very good on the day and better prepared than many a ‘good’ barrister often is on the facts of the case. Or, it might just be that my client was, basically, in the right and the most expensive barrister in the world could not defeat her in front of a half-decent judge.

    Secondly, without going into the ins and outs of Nigel Evans’ case, the idea that the CPS should only prosecute cases they are 101 per cent sure of winning is ludicrous if you want any kind of reasonable sytstem of justice. My main complaints about CPS lawyers is their weird ideas of ‘public interest’ some times in determining what to prosecute – and that they tend to not prosecute quite winnable cases, often because of shoddy case preparation and lack of full evidence-gathering by police.

  • Chris Manners 14th Apr '14 - 5:22pm

    If Richard Wainwright is right, isn’t a correction to the article needed?

    You got here not because of Labour (who failed) but because you did it yourself.

  • Chris Manners 14th Apr '14 - 5:25pm

    Sorry, Richard.

    Wingfield, not Wainwright.

  • Shirley Campbell 14th Apr '14 - 6:07pm

    I am a Liberal who seeks to distance herself from the sleazy details of these cases, believing in the concept of consenting adults and the like; however, Liberals raising the issue of the “quality” of justice and the context in which it “must” be bought does command my attention.

    In the first instance, Nigel Evans was fortunate in that he had the intellectual and financial resources to defend himself. It boils down to poor him if he had had neither the intellectual or financial resources to defend himself; it boils down to poor him that defending himself from seemingly spiteful and vindictive persons has depleted his life savings. What about poor Joe Public who has neither the intellectual or financial resources to defend himself from the unscrupulous arm of the Establishment?

    Oh, and ancient that I am, I have just noticed an article on “tasers”. I am a Liberal and nothing on this earth would engage my support for the use of “tasers”. Am I right in thinking that “tasers” are capable of firing 50,000 volts of electricity into anyone and everyone? I must read the article.

  • @daft ha’p’orth
    Legal aid should be sufficient for justice to prevail. I guess that might be called “supersize” by some but innocent until proven guilty should be the guide. This is about justice, not shopping for CD players

  • daft ha'p'orth 14th Apr '14 - 10:16pm

    @Voter
    It’s not my suggestion that he needed to pay sky-high costs to get justice. His solicitor came up with that one.
    I wouldn’t have a choice, if it happened to me. I’d end up on legal aid.

    CD players indeed.

  • Nigel Evans on ITV daybreak yesterday:
    “I was a bit shocked you didn’t get your money back on acquittal…Apparently the rules changed a few years ago,” said the man who has been in the House of Commons for 22 years and but didn’t notice this change in the law.

  • Those who are ridiculing the CPS for prosecuting despite the fact that three of the seven alleged victims did not want to be part of a prosecution should read Sarah Wollaston’s account :-

    http://www.telegraph.co.uk/women/womens-politics/10765503/Sarah-Wollaston-Why-am-I-being-blamed-for-Nigel-Evans-sex-case.html

    According to her, two of the alleged victims (one of whom told Wollaston he had been raped) considered themselves “victims” inasmuch as they were willing to complain to the Tory Party, to Wollaston, and to the Speaker; they wanted disciplinary action against Evans; and they were anxious to protect others from having the same thing happen to them.

    Finally, and reluctantly, they went voluntarily to the police because they were unhappy with the lack of action from the Tory Whips and the Speaker. They still did not want to press criminal charges (as Wollaston points out, only a very small percentage of alleged rape victims do) but they saw talking to the police as their last resort in attempting to protect others.

    The CPS obviously had to weigh all that information up along with the allegations made by the four alleged victims who DID want charges pressed.

    I’m not saying the CPS were right or wrong here – I’ve already said that I don’t believe we armchair observers are in any position to make that call – but it was certainly a more difficult decision for the CPS to make than some posters here are claiming.

    I would also suggest that Wollaston’s article exposes gross failures in the way the political establishment dealt with the initial complaints – and perhaps MPs should be concerning themselves with that rather than trying to undermine the CPS.

  • MartinB

    “I think we should bear in mind that people defending a criminal charge will only have to make a financial contribution if their household disposable income is greater than £37,500 ”

    I would also point out that the median salary in the country is £26,306.80 so if we are talking about a “household” we could easily be talking about a fairly average household earning £52,613 which is 40% over the threshold you quote. That is not particularly rich.

    “Mr Evans, presumably aware of the law his govt had passed, could have employed a lawyer who charged less for his/her services.”

    I would agree with Geoff Payne’s concern over the “arms race” in experience of legal experience. It is incumbent upon defendants to keep their meal costs under control but if the CPS go wild then the point doesn’t really look so good. Note that is not to say that QCs are the only good barristers (having seen Ed Wilson’s point) but when your liberty, reputation and whole life’s work are at stake how many of us would not keep trying to match the CPS in a arms race.

    I would ask how many other cases of sexual assault are prosecuted by QCs, I would have thought a normal Crown Prosecutor would be perfectly acceptable.

  • Solicitors should be forced to explain how much legal services will cost and what impact the outcome has if any. Whilst its unfortunate that he felt he needed to spend so much despite the weakness of the prosecution case, he has been an MP in a parliament that includes many lawyers for a long time so he has had more chances than most to influence this system and to understand it.

  • Alistair

    “Solicitors should be forced to explain how much legal services will cost and what impact the outcome has if any”

    Unfortunately many cost increases are the result of delays in proceedings (if court dates get moved etc), which may have worsened since some cuts were made to the courts.

  • cllr Nick Cotter 21st Apr '14 - 8:49pm

    Richard Wingfield is spot on here.
    One further “trap” to look out for – the rules now are that a privately paying defendant found not guilty IS (subject to the Judge’s discretion) entitled to be reimbursed his/her legal costs but ONLY if they applied for Legal Aid and were refused it (in the Crown Court).
    Richard may or may not be aware that huge parts of the civil law no longer merit the granting of Legal Aid, including most family law, housing law etc…….
    As a criminal defence lawyer doing Legal Aid Work I now sit as an “Independent” councillor, having recently left the Lib Dems (after 30 years membership) partly because of the devastation of Legal Aid I was somewhat surprised that Antony Hook was not slightly more familiar with Legal Aid and it’s (lack of) funding.

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