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 ?

Double jeopardy

In the wake of the Stephen Lawrence case convictions, this article explores ‘double jeopardy’.

Double jeopardy means that you can not be tried twice for the same offence. There are good reasons for this, some of which are listed below:

It may be considered manifestly unfair to the alleged victim who is presumed innocent until proven guilty, the test usually being beyond all reasonable doubt;

It may be considered an abuse of process to re-consider or introduce new evidence, when Authoritative or Regulatory bodies should, frankly, have got their act together, and their evidence in place with one proverbial bite at the cherry being the Trial;

It may be considered an abuse of administration of justice where high costs are spent, and Court time has been taken up. Moreover the victim and the victim’s family should expect the Prosecution to have all evidence in place;

Natural Laws of Justice ought to apply. Justice must be seen to be done. Certainty and clarity should be what in Law we strive for. Without it, we have potential despair, and possible chaos looming;

A fair trial may be impossible given previous publicity, and length of time since the first offence;

The Criminal Justice Act 2003 (‘the 2003 Act’), changed the double jeopardy rule.

Section 75 of the 2003 Act allowed for a retrial following the Defendant’s acquittal, which includes the following offences:

  • Murder and Attempted Murder;
  • Manslaughter;
  • Kidnapping;
  • Arson, endangering life or property

The Prosecution must in the first instance apply to the Court of Appeal seeking an Order quashing acquittal of the Defendant, and providing for the Defendant to be retried for that particular offence.

The Director of Public Prosecutions must consent to such an application.

There are 2 tests to be met in order to prosecute a defendant for a second time:

There must be ‘new and compelling’ evidence: The evidential test, Section 78 of the 2003 Act. That new evidence should not have been adduced when the Defendant was acquitted, and that evidence must be reliable, substantial, and highly probative against the Defendant.

The second test relates to the interests of justice, which is set out at Section 79 of the 2003 Act. The Court of Appeal has to consider a number of matters including, but not limited to:

  • The nature and seriousness of the offence;
  • The heinousness of the alleged crime committed;
  • Whether a fair trial is likely;
  • The length of time passed since the offence was allegedly committed;
  • Whether new evidence could have been adduced at the initial Trial;
  • Whether the Police or the Prosecution failed to act with due diligence or expedition;

As we well know, the quality, methods, and procedure of obtaining evidence, and investigating objects and articles forensically, has significantly evolved and developed particularly since the Lawrence case.

The writer believes that exceptions to the rule of double-jeopardy is necessary, but it has to be weighed carefully against the rights of an acquitted Defendant as against the seriousness of the crime and impact to the victim and their family.

The fact that in the Stephen Lawrence case those who have since been convicted, gloated and boasted generally about committing racist crimes, eased the consciousness of right-thinking society to vilify them. I wonder if such evidence had not been adduced, whether polite society would have been so amenable to convictions based on forensic evidence found, which had not been previously discovered because forensics had yet to evolve, or alternatively they were simply missed, rather than evidence over the years may have become contaminated.

No doubt there will be an Appeal which will hopefully further clarify the exceptions to double-jeopardy.

David Rosen is a Solicitor-Advocate, Partner and head of Litigation at Darlingtons Solicitors, and a visiting associate Professor of Law at Brunel University.