Recently, over lunch, a practising advocate revealed to me that there is a principle in our criminal law (and that of many other jurisdictions): there are no cost orders in criminal cases. This sounds innocuous enough, but the implication left me dumbfounded.
Cost orders, in civil cases, are easy enough to understand (although once one digs below the surface, it also gets complicated). In essence, there are two options, and various factors will determine which one is applied at the outcome of the litigation. The first option is that each party pays its own costs, and the second option is that the losing party pays the costs of the process for all parties.
I had never thought about it, but subconsciously I assumed that, in criminal law, if the state prosecutes someone unsuccessfully – if it fails to prove guilt beyond a reasonable doubt – it is expected to pay for the process, which would include the defence of the accused person.
Not so. There are no cost orders in criminal cases, after all. This means that if the state fails to prosecute someone, the parties will pay their own costs.
I felt offended when this was revealed to me. Is it possible for a more inequitable principle to exist in law, especially when the presumption of innocent until proven guilty is ostensibly the foundation of our criminal justice system?
The implication is that private criminal defence is totally out of reach for virtually everyone – including the conventionally wealthy – except those who are extremely wealthy. This is a small handful of people, all of whom probably know one another on a first-name basis.
Other people must either defend themselves in court, must have a close friend or relative who is a practising lawyer, or they must use the services of a legal aid institution with overworked, comparatively underpaid lawyers.
Legal aid lawyers are the unnamed heroes of this story, but the principle is rotten.
Overcriminalisation
This whole thing becomes even more offensive when one appreciates that the domain of ‘criminal law’ is constantly expanding.
It is a crime in South Africa to not pay child support. Rah-rah, the public exclaims, yes it should be a crime! But to the poor sods who are in fact paying their child support on time, but get prosecuted for not doing so, and end up winning in court, this righteous indignation means little. They could be financially ruined if they chose to retain a private defence team.
In a year or so it will be a crime to smoke a cigarette, or vape, alone inside your own house if you work from home. The state will be able to prosecute you for it. But even if you run the case all the way to the Constitutional Court and win on some technical point where the Court interprets the Tobacco Act in favorem libertatis, you could still be left penniless if you had a good defence team.
It is a crime to ‘inconvenience’ someone on public transport. If one is prosecuted for this, it should be relatively easy to convince a court that the prosecution has brought a trivial matter before it and that it should be thrown out. But the few hours spent preparing and winning such a case with a competent, private criminal defence lawyer would still be very expensive.
Criminality is too broadly defined in South African law. And yet, even if the system determines that the accused was innocent all along, the state shrugs its shoulders and does not pay the accused’s costs.
I cannot see how this principle survives in the modern day, when notions of ‘justice’ and ‘fairness’ dominate the public discourse.
The fix is painfully simple: if the state fails to prove someone’s guilt beyond a reasonable doubt, the state (regrettably the taxpayer) must bear the full cost of the accused’s defence. This is an inherent implication of the principle of innocent until proven guilty.
Without this reform, the process is the punishment, which assumes guilt before any verdict on the facts has been delivered.
Justifications
In the magisterial Constitutional Law of South Africa (CLoSA), Adv Michael Bishop outlines some of the justifications for this inequitable principle. One is that:
‘[…] we would not want to discourage the state from bringing bona fide prosecutions because of the fear of costs. There is always some unpredictability in prosecuting a case: a prosecutor never knows how witnesses will perform on the stand, what evidence the judge will admit and so forth. If the state risked an adverse costs order every time it lost, then it might be inclined to prosecute fewer cases.’
This justification cannot under any circumstances be accepted.
The entire Western legal tradition is built on the notion that it must be difficult for the state to prosecute people. This is why the principle of the presumption of innocence is proven beyond a reasonable doubt is so deeply entrenched.
But more than that: in any other kind of litigation, a judge is meant to be impartial – even the appearance of partiality must lead to recusal. But in criminal litigation, the common law requires judges to be partial in favour of the defendant. This is the principle in favorem libertatis – that any benefit of the doubt shall be for the person whose liberty is in jeopardy.
The criminal justice system is set up for the state to lose, and rightly so.
Only those who are clearly and unambiguously guilty on the objective facts should face criminal sanction. Anything less, and they must be set free.
The state’s ambivalence about how expensive criminal prosecutions might be to it should therefore be entirely irrelevant to the courts. Prosecution should be expensive for the state.
The second ‘justification’ found in CloSA, is baffling beyond measure: The state should not be liable for the defence’s costs, because ‘the vast majority of criminal defendants do not in fact pay for their defence team.’
Well, golly-gee, I wonder why that is! As CLoSA rightly notes, this justification ‘does not provide a sufficient explanation in cases where the accused does indeed pay for her own defence’, as opposed to using legal aid.
Reform right now
My fellow liberals would balk at me saying this, but I have long considered Australia, on paper a liberal democracy, to be a country that verges on being a totalitarian police state. Nonetheless, despite my deep concerns with that legal system, it has this principle right. There, the prosecution – the state – is responsible for the defendant’s costs in the event of an acquittal.
South Africa has an incredibly violent crime problem that puts some low-intensity war zones to shame. There are many reasons for this. And there are solutions, but giving the state free rein to prosecute the innocent in a reckless fashion is not one of them.
Taking violent crime seriously also means defining the scope of criminality appropriately, and ensuring that those who are innocent are not pursued by our prosecutors. And when they are so pursued, they should be compensated.
South Africa should not be outdone by the likes of Australia when it comes to the rights of those wrongly accused. Either Parliament or the superior courts should urgently go about the necessary reforms to ensure that the principle of innocent until proven guilty is given substantive, not merely formal, effect.
[Image: by Joseph V M from Pixabay]
The views of the writer are not necessarily the views of the Daily Friend or the IRR.
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