Compensate the innocent who are bankrupted clearing their names, says police watchdog

Innocent people bankrupted by legal battles to clear their names in criminal cases should be compensated by the state, says Her Majesty’s chief inspector of police.

In his final interview with The Telegraph before stepping down this week, Sir Tom Winsor urged ministers to end decade-old curbs on the reimbursement of legal expenses for people acquitted of serious offences.

It has become known as the “innocence tax” since it was introduced in 2014. As a result, some 126,000 acquitted defendants have been left out of pocket, to the value of thousands of pounds, after having to pay court bills because of having no legal aid or limited support.

Asked to identify the single piece of legislation he would change if he could, Sir Tom cited abolition of  the tax - and revealed that one of his closest friends, a self-employed musician, had been a victim after being falsely accused of rape and coercive behaviour by his ex-partner.

He was unable to work as a teacher as he fought the case until, on the Friday before the Monday of the trial opening, “they looked at the evidence and said it was quite clearly a false accusation. This was two years ago. He is still trying to rebuild his life and business,” said Sir Tom.

‘Everyone is entitled to a defence’

“We have a system in this country that goes back to Magna Carta. That you are innocent until proven guilty. If you are facing an inequality of arms [with the state prosecutors] when you are tried, then justice will be denied in many cases,” he said.

“Everyone is entitled to a defence. The whole purpose of criminal justice is to convict the guilty and acquit the innocent. The acquittal of the innocent is not given the appropriate attention, the resources and value by the state.

“Depending on the passage of time and seriousness of the offence and complexity of the investigation you could have lost all your savings, you could have lost your house. You could have lost a lot and got nothing back from the state.”

It is understood the Ministry of Justice (MoJ) is currently reviewing the “innocence tax” and may lift the cap on means testing for those who are prepared to use legal aid lawyers.

Sir Tom also said the public and politicians would have to invest more in the police if they wanted higher crime detection rates, which have fallen as complex crimes such as child abuse and rape have increased.

“The public would say they do want to make that investment rather than shaving 30 seconds off the journey to Birmingham in order to catch and lock up these people who are doing the most despicable things to children,” he said.

“If the people of England and Wales decided not to buy a fancy, overpriced coffee in the morning and they put all that money in a pool, they would save a lot of lives. We are going to have to accept lower detection rates than would otherwise have been the case unless we invest more.”

Investment would deliver ‘paedophiles for pennies’

He said “a relatively small additional investment” with the technology that the police and National Crime Agency (NCA) had available, could have a big impact on child abuse, cyber crime and fraud. He cited officers at the NCA who said £500 million could enable them to map the entire dark web. 

He also referred to an investigation by NCA officers, costing £20,000, which cracked a paedophile ring. “The officers said that using the technology they have with appropriate investment could deliver paedophiles for pennies,” he said.

He believed police should focus on tackling serious crimes rather than online messages. “Going round to someone’s house, saying we have looked at your tweets and we are investigating your thoughts, I don’t think the public will tolerate that,” he said.

When he took over as chief inspector in 2012, one in five crimes reported to police were not recorded and so not investigated. That was now below one in 10 but that still meant many crimes were not being investigated. “That should be as close to 100 per cent as possible,” he said.

One of his biggest concerns was the failure to investigate fraud, which accounts for 53 per cent of all crime but where fewer than one per cent of offences result in a charge. Sir Tom cited one force that closed 96 per cent of cases with bona fide leads “without doing anything with them”.

He said it needed to become more of a priority for police forces and the Government as victims were often vulnerable and elderly who could lose hundreds of thousands. “If an elderly person hangs himself or herself in their garage or throws themselves off a building or cliff, it is murder in slow motion,” he said.

Sir Tom plans a move into domestic and international arbitration and mediation but will first carry out a review into the ousting of Dame Cressida Dick, the Metropolitan police commissioner, by the London mayor. He has been appointed by Priti Patel, the Home Secretary, to investigate after Sadiq Khan effectively forced Dick to resign by withdrawing his confidence in her.

Sir Tom will be replaced by Andy Cooke, the former chief constable of Merseyside who has since joined the HM inspectorate.

Ministers plan to scrap "innocence" tax on acquitted defendants

Ministers are to extend legal aid to middle class defendants to protect them from bankruptcy if they are cleared.

The move will scrap the so-called “innocence tax” where some 126,000 acquitted defendants have been left out of pocket to the tune of millions of pounds after having to pay crown court bills because their higher earnings meant they were not eligible for legal aid.

It is part of a major expansion of legal aid that will also see free legal representation guaranteed for parents challenging traumatic and difficult medical decisions such as the withdrawal of their child’s life support.

More than six million people will become eligible for legal aid through an extra £25 million a year Government funding including domestic abuse victims who can miss out on legal aid because their shared assets with their violent partner put them over the income limit.

Justice Secretary Alex Chalk, who was sworn in as Lord Chancellor yesterday (Wed), said:  “Widening access to legal aid secures justice and strengthens the rule of law.”

The creation of the “innocence tax” goes back to a decision in 2014 by Chris Grayling, then justice secretary, when he placed a disposable income limit of 37,500 pounds a year on eligibility to legal aid in the crown court even if you were subsequently found innocent.

It meant better-off defendants were denied any legal aid if their case went to high court and have had to privately fund their defence bills.

Mr Chalk has now decided to scrap the limit so that middle class professionals cleared of alleged offences will no longer have to foot the costs. 

Top earners will have to pay a monthly income contribution towards their legal aid costs but, if acquitted, any legal aid income contributions will be refunded with interest.

The impact of the 2014 change was highlighted by Sir Tom Windsor, the former HM chief inspector of police, in an interview by The Telegraph in which he said the innocence tax would be the one piece of law he would change if he was in Government. 

One of his closest friends, a self-employed musician, was a victim of the tax after being falsely accused of rape and coercive behaviour by his ex-partner.

He was unable to work as a teacher as he fought the case until, on the Friday before the Monday of the trial opening, “they looked at the evidence and said it was quite clearly a false accusation. This was two years ago. He is still trying to rebuild his life and business,” said Sir Tom.

In his state of policing report in 2021, he warned: “It is manifestly unjust for acquitted defendants to face financial ruin because the state has impugned their innocence and put them through the stress and high expense of an investigation and trial.”

Under the changes, domestic abuse victims on universal credit and seeking a protective order for themselves or their children against their attackers will be able to access legal aid funding more easily without facing a means test.

Those who share a house with their abuser will also benefit from changes to disputed or inaccessible assets – which will no longer be considered when assessing someone's financial eligibility for aid.

Under 18s will be entitled to free legal representation while the amount of income someone can receive before having to contribute to legal aid fees will increase by over £3,000 for civil cases and over £12,000 for criminal cases in the magistrates’ court.

Justice Minister Lord Bellamy said: “Our changes to the legal aid means test will also make the justice system fairer for those who need it most.”