Confiscation of ill gotten gains is blocked by there being no effective legal aid

When I was young I practiced some, but not a lot, of criminal law. These days I hardly practice any criminal law. I think that my firm last undertook criminal legal aid work more than twenty years ago, so I have no personal financial interest in what I shall write about today.

It may come as a surprise, but for many years convicted criminals in the United Kingdom were able to hold on to their ill gotten gains. The statute that I can find that enabled the courts to order ill gotten gains to be confiscated was in 1988; in 1994 the law was amended mainly to concentrate on confiscation of gains from drugs and in 2002 the law changed again to enable courts to order confiscation of a convicted criminal’s assets. Courts will, if they make a confiscation order, also make an order for the convicted person to serve extra time, if he or she does not pay the money sought to be confiscated, and serving the extra time does not wipe out the original debt.

All this is fair and reasonable; criminals should not be allowed to enjoy their ill gotten gains making confiscation orders is a good way to prevent criminals from prospering and to ensure that their assets come to the public purse, in so far as possible.

However, a case was recently reported in the Law Society’s Gazette about circumstances in which a court was unable to make a confiscation order. A Ms Campbell was convicted on laundering £236,000 – in fact she pleaded guilty to the charge. The next step in her case was for the court to hold a trial to decide whether it was appropriate to make a confiscation order over all or some of her assets.

Unfortunately the trial judge found that there was no advocate prepared to take on her case. The reason is that the scale fee that the advocate would be allowed was £178.25 per day in court (plumbers and mechanics charge more than this) with no time for preparing the case, which would have involved the advocate understanding all of Ms Campbell’s assets and being able to argue which of them should not be subject to a confiscation order under the law. The trial judge accepted that it would take 80 hours for a competent advocate to prepare for the trial and no advocate was prepared to work for less than £2 per hour.

So the court was unable to hold the confiscation trial.

In most countries in the world it is recognised that a defendant is entitled to legal representation at each stage of the criminal process from arrest to sentencing. The rationale of this is to try and prevent injustice and to ensure that defendants are not oppressed. This is nothing to do with “bleeding hearts”.

The laws these days are extraordinarily complex – there are at least three separate statutes about confiscation and a number of common law cases and principles to be considered. A defendant cannot be expected to know all of these laws and it is important that if the state is prosecuting under a law that it follows the law itself. If it does not then there is no rule of law, just tyranny.

The previous unlamented Home Secretary Jacqui Smith, and Justice Secretary, Jack Straw, have been undertaking a systematic destruction of the criminal legal aid system, by reducing the fees that criminal legal aid lawyers may earn, reducing the service that can be provided, and introducing such nonsense as competitive tendering, call centres, fixed fees, franchises that enable firms to undertake criminal legal aid (which can be terminated almost instantly).

None of these have a place in providing criminal legal aid. The only purpose in the state providing legal representation is to ensure justice is done and that the defence has effective legal advice. It is very easy for politicians to be macho about this and claim that they are being strong. The truth is that it is in society’s interest that defendants are given effective representation if they cannot afford to pay for it themselves.

If defendants are not provided with effective representation then injustice will occur. It is an injustice that an innocent person is convicted, but it is also an injustice that for the want of a properly funded legal aid service, a court cannot enquire into the making of a confiscation order.

If you are going to confiscate assets of criminals you know that this is a complex and technical legal process, where the prosecution has access to plenty of resources. You also know that if the state will not pay a decent rate for the defence to be able to receive appropriate representation no assets will be confiscated.

Our legislators seem to have been too busy filling out their expense forms to have spotted this simple and obvious point.

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