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06/05/2008 - Legal Aid was too low for barristers leaving drugs offender unrepresented

Date:5 JUN 2008
TUES 06/05/2008 - Proceedings to confiscate the assets of a convicted drugs offender under the Proceeds of Crime Act 2002 have been stayed because to continue would lead to an unfair trail and an abuse of the process of the Court.

The Appellant's solicitor applied to eighteen sets of chambers to defend his client, but none of them would accept the case because the provision of fees for counsel, governed by the graduated fee regime, restricted payment to £178.25 per day or £99.50 per half day.

The man was unable to use his own assets to pay his legal costs, which were estimated by the CPS at £1.5 million, because they were frozen. However, legal aid would not provide him sufficient funding to pay for the necessary representation.

The case would have involved counsel examining extensive documentation, amounting to some 6,586 pages. Because the Crown was alleging that the Appellant had a criminal lifestyle, he would have had to justify the movement of all money through his bank accounts which involved around 4,548 individual transactions. Judge Mole QC said in his judgement that the size and complexion of the confiscation hearing had become such that experienced senior counsel would be necessary in order to be able to put the proceedings into a manageable form. The estimated length of the confiscation hearing was said to be six weeks.

In the judgment, Judge Mole QC said: I would find as a fact that it is more likely than not that [the Appellant] will not be able to find counsel of the necessary skill and experience to represent him effectively, if that counsel is expected to be paid from public funds by a graduated fee of £178.25 a day.

"Putting it bluntly, if he must rely on public funding, he would not be adequately represented".

In a statement, the Bar Council said it "notes with concern the reports in the media which state that a convicted drug offender has avoided a confiscation order for up to £4.5million of his assets. The Bar Council has, for some time, been making representations about legal aid fees for confiscation hearings, which are inadequate given the gravity of the hearings.

"The Bar Council is also concerned by the funding inadequacies affecting the wider legal aid system, and continues to make representations to the Government to rectify this situation, which is affecting the administration of justice; such a situation is not in the interests of the taxpayer, the general public, the defendant, or the victims of crime. The public interest demands that our criminal justice system is robust and able to give all cases the expertise they merit; this is being put at risk by a legal aid structure in confiscation cases which is simply inadequate for the complexity and responsibility involve".