The law

The price of Innocence

Douglas Curtis

Raymond Harris may be sent to prison soon for not having stolen a magazine worth 7p. His case is just one of the bizarre situations which arise from our present system of legal aid in criminal cases.

Mr Harris was tried and acquitted at Reading Crown Court last December on a charge of stealing the magazine. In spite of his acquittal the Recorder, Mr P. J. M. Ryan, ordered him to pay £100 towards the cost of his legal aid. Mr Harris refused to pay, and on June 26 he appeared before Reading magistrates to answer a summons for failing to comply with the order. He again refused to "pay for the privilege of being innocent," and the chairman of the court, Mr John Wey, told him: " If the money is not paid within the next three weeks you will be brought back here and the question of prison will have to be considered."

After the magistrates hearing Mr Harris told reporters: " I would have been better off if I had pleaded guilty to stealing the magazine. I doubt if the penalty would have been £100. I will go to prison rather than pay a penny of it."

There can he little doubt that if he sticks to his principles the courts will maintain their inflexible attitude towards him, and Mr Harris could face up to three months imprisonment as the price of having established his inn-. ocence.

Financially. at least, the cost to the public would be much higher. Mr Harris will cost us £32 a week while he is in prison, according to the latest estimates given by the Home Secretary at Norwich in March this year. His wife and two children will have to be supported out of public funds and they will suffer the social stigma of having t heir breadwinner in prison. When he is discharged any enforced unemployment will entitle him to social security benefits.

This expensive and potentially • disastrous situation arises from a Practice Direction given by Lord Goddard when he was Lord Chief Justice and quite properly followed by Mr Ryan. Fearing that ant' award of costs to a successful defendan would reflect badly upon the police and prosecution, Lord Goddard instructed courts to award costs only in exceptional circumstances. Since that ruling courts have seldom awarded costs upon acquittal except where it could be clearly shown that the prosecution had acted spitefully or without reasonable cause.

This had the effect of reversing a basic precept of British justice by placing the burden of proof upon the accused. In order to secure costs upon acquittal he would have to provide evidence of malice or unreasonable action.

A later ruling by Lord Parker, Lord Goddard's successor, that costs should be awarded whenever the courts thought it right to do so, had little effect. An award of costs to a successful defendant continued to be a rare event and a tradition grew up of two grades of acquittal. A wholly innocent person mity be awarded costs but an innocent person who unwittingly behaves in a manner which might give rise to suspicion is regarded as "the author of his own misfortune." In spite of the high price of legal services he would, although subsequently proved innocent, be expected to pay at least a part of his defence costs.

Recent experience in a number of important cases has shown that the police and prosecution cannot always be relied upon to the extent to which courts have traditionally been prone. Following a television programme, in which three innocent men were shown to have suffered financial loss, the present Lord Chief Justice, Lord Widgery, issued a new Practice Direction aimed at avoiding some of the worst aspects of judicial dualism. On June 6 this year, some three weeks before Mr Harris's appearance in front of the Reading magistrates, he ordered all courts to award costs from public funds to all successful defendants, unless the prosecution had behaved spitefully or without reasonable cause, in which case costs could be paid by the prosecutor.

The spirit, if not the letter, of the Practice Direction is clear and compatible with our judicial precepts: no innocent person should be expected to pay any part of the tostof establishing that innocence.'. But Mr Harris cannot benett: from the ruling because it waS., issued after the order for cbst's had been made and because the Practice Direction did not refer specifically to legal aid contributions.

It seems incredible that the belated recognition of an unjust situation should not be made in every respect retrospective.

The present situation of Mr Harris, and many others like him, arose from an undue and unnecessary concern with protecting the reputation of police and prosecutors. It has resulted in a denial of individual human rights. What has seldom been appreciated is that while an award of costs may be a reflection upon the police and prosecution, a refusal to award them to a successful defendant is an attack upon the very fabric of the law.

The rule of law can only operate as long as it is respected by those who are subject to it. A spokesman for the Law Society has said that "had this man paid his own costs (instead of relying on legal aid) he might have been better off. He might now have .tpplied for costs." It is still open to Mr Harris to make a fresh appearance in court and apply for costs on the basis of Lord Widgery's direction, But the legal position is unclear and even eminent London lawyers are uncertain what the outcome of such an application might be.

Hegel, the great legal philosopher, has said that law should not be hung so high that it cannot be read nor buried in row upon row of legal tomes. The people who are responsible for the present confusion should come forward now and tell Mr Harris, in no uncertain terms, that he will not be required to go to prison or to pay £100 as the price of establishing his innocence. He has already suffered financially through loss of earnings and socially through the stigma which attaches to court appearances. He has been shown by the courts to be innocent and if he goes to prison the public will have to foot a bigger bill. In those circumstances the new Ballad of Reading Gaol will be an ode to the perversity of a judicial system which insists on throwing good money — yours and mine — after bad.