Criminal legal aid – being exploited ?

Criminals Receiving Legal Aid

The purpose of legal aid is to provide financial assistance to members of society who cannot afford to pay for certain types of legal advice. Most people will agree that millionaire criminals, where their wealth is believed to have come from criminal activities and may have been hidden away should not be entitled to legal aid where they have sufficient illegal funds to cover the cost of their criminal defence. Others would argue that the “innocent until proven guilty” presumption means that these individuals should still be entitled to criminal legal aid.

However, shocking figures under the Freedom of Information Act has revealed that in the last three years almost 50 wealthy criminals received an average of nearly £300,000 each in legal aid despite them having over £1million of suspected illegal money.

The final figure is expected to be even higher as all the defence bills have not been paid as yet. The figures are controversial and come at a time when Justice Secretary Ken Clark is trying to reform legal aid by cutting £350 million from the legal aid budget by reducing the service to poorer people in cases of clinical negligence, welfare, personal injury and divorce.

Most of the criminals applied for legal aid to fight the Crown’s attempts to have their wealth seized. This wealth cannot be used to pay for their legal defence fees under the Proceeds of Crime Act 2002 (POCA). Under POCA the Crown can apply for a Restraint Order prohibiting anyone from dealing with their assets in order to prevent the accused from dissipating with the same. The rules used to allow for reasonable living expenses and reasonable legal costs to be paid from the restrained funds but the rules were later changed so that legal expenses cannot now be paid. Therefore, a person subject to a Restraint Order may be able to get legal aid and many so-called sophisticated criminals have also moved any assets abroad or otherwise hidden them, thereby pleading poverty.

Ministers argue that the law is justified as these criminals may ultimately be ordered by the courts to pay back their legal fees and those that fail to do so will get extra time. Whether this is true in practice is perhaps a different matter However, Lord Macdonald, The Bar Council and the Criminal Bar Association amongst others would like the law changed so that the tax payer is not subsidising wealthy criminals anymore. Accordingly, there are proposals before the House of Lords to amend the Legal Aid Sentencing and Punishment Bill.

It is worth noting that the rules as they stand do not only have financial implications on the public purse but they could also be a breach under the Human Rights Act as it restricts an individual from choosing their own lawyers.

What do you think about this issue ?