The Legal Aid crisis starts to bite

[major_clanger]

Even though I'm seeking to work in civil, rather than criminal law (although copyright and trade mark infringement for gain are criminal offences), as a prospective barrister I can't help but have been aware of the growing crisis regarding legal aid. Both the Bar Council and the Law Society (the professional bodies for barristers and solicitors respectively) have been expressing growing concern about the consequences of new restrictions on the legal funding available for criminal defence work, and now it seems that some of the dire predictions being bandied around have started to come to pass.

The Times reports on this case of a man convicted for a minor drugs offence and, as a result, put in a position where as a consequence of recent legislation the burden of proof was put on him to show that his assets of £4.5M were not the proceeds of crime. Until he could do this, his access to them was frozen - meaning that he needed legal aid to defend himself. But the complexity of such a case meant that no barrister competent to represent him could be found willing to work for the £175 per day legal aid cap. As a result, he had to defend himself, leading the judge to dismiss the case on the basis that he could not have a fair trial.

As noted in some of the comments to the article, this is a classic example of the Law of Unintended Consequences. By freezing the assets of people who in theory could perfectly well afford a lawyer, you force them to use legal aid... but the sort of cases that lead to assets being frozen are likely to be far more complex than can be funded by legal aid. It's not just barristers, either; as high street law firms withdraw from criminal work because it's uneconomic, solicitors are starting to speak of 'legal advice deserts' emerging, with towns or even counties where it is almost impossible to find a solicitor to take on criminal defence work.

At least there can't be an accusation of one law for the rich and another for the poor. On the evidence of this case, there's no law for either.

Comments

[watervole.livejournal.com]

Talk about legislation having unintended consequences...

[alexmc.livejournal.com]

> he had to defend himself, leading the judge to dismiss the case on the basis that he could not have a fair trial.

After an initial bout of humour I recovered my composure and started worrying.

What sort of crimes would result in freezing of assets? I thought it was money laundering, terrorism, and possibly serious organised crime.

Is a solution to unfreeze a portion of the assets for use in self (legal) defense?

[major-clanger.livejournal.com]

Under the Proceedings of Crime Act 2002, assets can be frozen and seized where there is a conviction for any offence serious enough to be heard or sentenced in the Crown Court combined with a 'criminal lifestyle'. That is defined as multiple offences in certain categories (including drug dealing) and evidence of significant financial gain from such conduct.

I suspect what happened in the case referred to is that the defendant had a number of convictions for drug dealing (presumably at a low level if he's not still in prison) and then got done again for something like possession, so fell into the scope of POCA 2002. Now, it turns out that once the court decides someone has a criminal lifestyle, then any assets they obtain from when the course of conduct started are assumed to be ill-gotten and can be seized. There's no explanation given for how this chap got his £4.5M, but I dare say he will have claimed that most if not all of it was legally obtained.

[surliminal.livejournal.com]

TBH there's been a criminal legal aid crisis (according to the legal profession) as long as I've been in law..:)
Lawyers increasingly don't do criminal work cos they're overpaid for civil work - that's the real if unpleasant truth.
The trouble is the obvious answer - creating a public defender's office - tends to attract the crappiest lawyers. I'm sure inventive solutions can be found for this though..
If you look in real terms at what the Bar earns per hour on civil/commercial work, it is fairly obvious it is a not a level of payment the state should go along with. Also the profession to some extent brought this clamp down on themselves - it was very well known a few years back that (some) lawyers were milking legal aid..

A modest proposal

[autopope.livejournal.com]

The trouble is the obvious answer - creating a public defender's office - tends to attract the crappiest lawyers. I'm sure inventive solutions can be found for this though..

A draft. For lawyers. "You: if you want to keep your license to practice, you've got to put in a month per year working as a public defender. Yes, you'll be paid -- at the legal aid rate. We'll be keeping an eye on you: fuck up your cases repeatedly (as witnessed by losing significantly more cases than average or by having cases you lost overturned on appeal) and we'll pull your license."

Let's not remember that by creating a situation where the profession is regulated and licensed we've given these people a license to print money. Requiring them to repay the public interest in some way isn't excessive or in any way unique; see for example how it's virtually impossible to qualify as an MD in the UK without spending time working in an NHS hospital. And? On the bright side, it might broaden some horizons that would otherwise remain overly focussed on maximizing income.

Re: A modest proposal

[purplecthulhu.livejournal.com]

How are the prosecutors paid?

Presumably they're paid by the public purse. Is their pay rate any different from what the defenders would get under legal aid? If not, why not. If it is the same, then is it the case that we have a lack of prosecutors because they can't get money? If not, why not?

[purplecthulhu.livejournal.com]

When they started talking about this freezing of assets I could see something like this coming since these people will clearly want a defense and that will have to be paid for. I didn't realize it would result in cases being thrown out because a fair trial was impossible.

I've always disliked civil forfeiture style rules, especially where the burden of proof is skewed. But it seems from this that any such case is bound to be lost by the Crown, thanks to Gordon's little money saving measure.

If I could see half of this on its way why couldn't someone at the home office when this legislation was being drafted? Yet more crap New Labour laws falling apart through inadequate scruitiny...

[autopope.livejournal.com]

We badly need a new government.

Unfortunately the opposition party most likely to replace it is just as bad, if not worse ...

[purplecthulhu.livejournal.com]

One of NL's problems has been its rapid production of new legislation which its huge parliamentary majority allows through with little revision. While the content of a Conservative governments laws might not be what you'd like, would they be as shoddily thought through? Would a smaller majority (or, please Cthulhu, a hung parliament) allow for better revision?

I think both of these are possible, but not guaranteed.

(I'm also wryly amused that the vast number of lawyers in the present government seem incapable of writing a good law between them!)

[hatusu.livejournal.com]

Interesting. I wonder if cases in the U.S were dismissed for the same reasons.