11.1 Recovery of Defence Costs Orders

Recovery of defence costs order (RDCOs) are governed by the Criminal Defence Service (Recovery of Defence Costs Orders) Regulations 2001 http://www.legislation.hmso.gov.uk/si/si2001/20010856.htm (as amended) made under section 17 of the 1999 Act http://www.hmso.gov.uk/acts/acts1999/19990022.htm . It is an order under which a defendant must pay to the CDS Fund the amount specified by the court, in respect of his defence costs.

11.2 An RDCO may not be made in respect of proceedings against a funded defendant: who has appeared in a Magistrates’ Court only; is committed for sentence to the Crown Court; is appealing against sentence to the Crown Court. An RDCO may be made against a funded defendant who has been acquitted, but only in exceptional circumstances.

11.3 Where an RDCO is made it may be for any sum up to 100 per cent of the costs of the representation in any court, under the representation order. The Order may specify payment forthwith or by specific instalments and may include the costs of representation in the Magistrates’ Court.

11.4 In all relevant cases the Judge must make an RDCO at the end of a case but only after he has made all other financial orders or penalties. Where a funded defendant has been acquitted the Judge must consider whether it is reasonable in all the circumstances to make such an order, i.e. are there exceptional circumstances making an RDCO appropriate.

11.5 In considering the amount of any RDCO the Judge should consider the amount or value of every source of income and capital available to the defendant or to the defendant’s partner. Save in exceptional circumstances the following should not be taken into account:

(a) the first £3,000 of available capital;

(b) the first £100,000 of equity in the principal residence; or

(c) income where the gross annual income is less than £25,000.

11.6 Before making an RDCO the Judge may ask the defendant’s solicitor to provide an estimate of the total costs that are likely to be incurred under the representation order. Where the case is a VHCC being managed under contract, the solicitor should readily be able to provide accurate figures of all costs incurred to date, and to indicate what costs have been agreed as reasonable for the next stage of the case. In other cases however, it should be borne in mind that, while the solicitor should have little difficulty in producing an estimate of the costs incurred up until the point of request, that estimate will necessarily not always be accurate. Where an RDCO is made on the basis of the defendant’s solicitors’ estimate, but the costs turn out to be lower than the amount ordered by the RDCO, the solicitors must inform the LSC and the balance will be repaid to the defendant. The procedure is that the appropriate authority will determine the costs under the representation order and once that has happened the defendant will be notified of the amount of the RDCO.

11.7 Where a representation order has been made or has been considered, the appropriate authority or the court may refer the funded defendant’s financial resources to the Special Investigations Unit (SIU) at the Legal Services Commission for a report in the following cases:

(a) where the defendant has been prosecuted by the Serious Fraud Office; the Department of Trade and Industry or Inland Revenue;

(b) the information that the defendant supplies suggests that he has sufficient means to pay all the costs incurred in his defence; or

(c) there is some other information to suggest that the defendant has more resources than he has disclosed.

Where such a reference is made, the SIU will produce a report for the Judge to consider at the end of the case, in the same way that the court would otherwise provide the Judge with a summary of the defendant’s means. It is to be noted, however, that this report is for the assistance of the Judge and is not to be treated as an application for costs.

11.8 If during the course of the proceedings further information has come to light that throws doubt on previous disclosures by the defendant to the court as to his financial means the Judge may at that stage refer the matter to the Legal Services Commission/SIU for investigation and as part of their investigation the SIU may require the defendant to provide further information or evidence.

11.9 At the conclusion of a case, the Judge may make an RDCO then and there, or if he considers that further information is required may adjourn the making of an order and direct that any further information that is required should be provided. The same power may be used where further information has come to light during the course of the case concerning the defendant’s means. If it is considered that the defendant has failed to co-operate either with the court or the SIU the Judge may order that the further information should be provided to the relevant person.

11.10 A defendant is obliged to provide details of his means to meet the reasonable requirements of the court or the Legal Services Commission and the summary of the means information will be made available for the Judge at the first hearing whether or not the defendant has provided any information but where he has not done so the Judge may order him to do so.

11.11 Where the defendant has failed to provide the requisite information the Judge must make an RDCO for the full costs of representation incurred under the representation order.

11.12 Where there is evidence that:

(a) the funded defendant has directly or indirectly transferred any resources to another person;

(b) another person is or has been maintaining him in any proceedings; or,

(c) any of the resources of another person are or have been made available to him;
the value of the resources of that other person may be assessed or estimated and then treated as those of the funded defendant.

‘Person’ is defined as including a company, partnership, body of trustees or any body of persons whether corporate or not corporate.

11.13 The court has a power to prohibit any individual who is required to furnish information or evidence from dealing with property where:

(a) information has failed to be provided in accordance with the Regulations;

(b) the court considers there is a real risk that the relevant property will be disposed of; or

(c) at the conclusion of the case the assessment of costs incurred under the representation order or of the financial resources of the defendant has not yet been completed.