Fraction 1/630 "so small" !!!???

I don't know what is the absolute total of government expenditure, but it must be such a collossal figure that even 1/630 would be massive.  I mean, think of the NHS, armed services, education system, highways agency, and that monster the HSE, and then there is the cost of providing social security (tax credits anyone?).  Sheesh, the list goes on and on.  Anyway from today (14 April 2010) letters to The Times ....

http://www.timesonline.co.uk/tol/comment/letters/article7096378.ece

Add a few zeros onto the denominator and I might agree.

I mean, if they know the amount of expenditure why not state it instead of some meaningless 1/630 fractional garbage?  The only motive can be to cloud the judgement of the reader.

With kind regards

Clint Westwood

Comments
davidwinch's picture

Total legal aid budget

davidwinch | | Permalink

According to the BBC, the total legal aid budget is £2.1 billion.

That may be a figure difficult to visualise (it certainly is for me).

I understand the UK population is about 62 million.

So the legal aid budget is equivalent to about £34 per annum per head, if that is more understandable.

However by no means all legal aid is criminal legal aid.  I believe total government expenditure is about £640 billion.  The author of the letter is suggesting therefore that the cost of criminal legal aid is about £1 billion.  That may well be the case, I don't know.

Looking at it another way, government (including local government) spending on education is £80 billion, and spending on defence is £40 billion.

So one could argue that, in the context of government expenditure as a whole, the expenditure on legal aid is an immaterial amount.  I think that is the point of the letter to The Times. 

I should (in all fairness) declare an interest here as the bulk of my income comes from legal aid although - sadly - my own income does not amount to a significant proportion of the £2.1 billion total spend!

David

 

davidwinch's picture

Comments by politicians

davidwinch | | Permalink

What I do find disturbing is the misinformed comments of the politicians.

I wish to avoid any party-political colour here, but I would have thought Jack Straw (Minister for Justice) would be expected to understand the scheme which his department has recently introduced.

He states however (according to press reports) "By the summer no one of independent means will be granted legal aid".  That is simply incorrect (and personally I would be most concerned if the situation were as he describes it).

The fact is that (even under the new arrangements) anyone acquitted of all the offences of which he has been charged will (ultimately) have all his legal defence costs paid by the government legal aid scheme (if he has applied under it).  That will be the case whether he is a penniless vagrant or a wealthy individual such as Richard Branson. So, in that sense, anyone and everyone will be granted legal aid (if they apply for it) in respect of serious criminal charges which they face.

What is different under the new scheme (which does not apply to the MPs in question as the scheme is not yet in force in London or the South East of England) is that a person charged with a serious offence to be tried in the Crown Court (not your typical motoring offence or less serious crime tried in the Magistrates Courts) will routinely have to provide details of their capital, income and expenditures.  Where a person is able to afford it, they will (again routinely) be required - prior to trial - to make monthly contributions (based on 90% of their household disposable income) to the cost of their defence.  This is something completely new.

After the trial is concluded if they are acquitted those contributions will be refunded.  If they are convicted, a calculation of their household capital (including savings and the equity in their home) will be made and (insofar as that capital exceeds £30,000) they will then routinely be required to pay the remainder of their defence costs as a lump sum payment.

Therefore a wealthy individual who is convicted will be "granted legal aid" but ultimately have to pay back to the legal aid fund the whole of the cost incurred on his defence.

Under the old system which is now being phased out, courts had discretion to order a convicted defendant to pay his legal defence costs.  But such orders were not routine and, in practice, were made only in perhaps 1% of cases.

This does mean that a typical home owner (who has sufficient equity in his property) who is convicted of an offence in the Crown Court will be landed with a significant bill for his defence costs.  Depending upon how the case was conducted that bill could be in four, five or even six figures.  Ultimately he may have to sell his house to pay the bill.

Finally, I should add that there is a system for means testing of legal aid in relation to trials in the Magistrates Courts - but that works on a different basis.

David

P.S.  The new Crown Court system works on household (i.e. joint) income and capital.  So in future if, say, the wife, civil partner, co-habitee or whatever of Richard Branson gets convicted of an offence in the Crown Court his wealth will also be taken into account in assessing the amount needing to be repaid to the legal aid fund.

nogammonsinanundoubledgame's picture

Is there any incentive ...

nogammonsinanun... | | Permalink

... in NOT applying for legal aid?

ie, on conviction, are you worse off from having applied than not?

With kind regards

Clint Westwood

davidwinch's picture

Raising the stakes

davidwinch | | Permalink

The effect of the new system will be to raise the stakes for a defendant who has income or capital.

 

If he is acquitted, he wins.

If he is convicted he has to suffer the legal costs of his defence. 

Assuming he has applied under legal aid then, in the run up to the trial and in the trial itself, he will only be permitted to incur the defence costs authorised by the Legal Services Commission.  So he won't be able to instruct his legal team to run up costs on 'fishing trips' looking for evidence which might turn up in unlikely places.  (I am sorry, but there will be no hiring of private detectives to spy on the unseemly sex lives of potential prosecution witnesses so that they can be embarrassed in court!  Makes great TV fiction, though!)

But if he feels that he is likely to be convicted (and so ultimately will have to pay his defence costs) then there would be sense in curtailing his defence costs where he can.  The most obvious way to do that is to plead guilty.  That means a short Crown Court hearing rather than a possibly lengthy trial.

So pleading not guilty is going to be a bigger gamble for defendants (and their families).

Also legal aid hourly rates are restricted (both for lawyers and expert witnesses such as myself).  There are many lawyers (and experts) who simply will not accept instructions under legal aid because the rates are unattractive.  So if, as a defendant, you want to engage someone who won't work at legal aid rates - or you want your legal team to 'leave no stone unturned' - you will have to 'go private'.  A bit similar if you like to choosing to send your children to a private school or having private hospital care.

Of course if you have paid your defence costs privately there is no question of you having to pay anything under the means tested scheme for defence costs as there are no costs to be paid back.

David

cymraeg_draig's picture

Mr Harris' letter is disingenuous

cymraeg_draig | | Permalink

The provision of legal aid is a fundamental part of our democracy and protects those who need it most; the vulnerable, the disenfranchised and those who face serious charges, such as the MPs in this matter.The presumption of innocence still remains at the heart of our criminal justice system and defending such charges properly will generate costs.

Paul Harris
President, London Criminal Courts Solicitors’ Association

 

I have seen Mr Harris' pontifications before, and think it is time he got out into the real world.  

He speaks of the "presumption of innocence" - fine words - and utter drivel.

Our magistrates courts are little better that legalised lynch mobs where defendants have very little chance of a fair trial. The current proposals, which will be enforced if labour are re-elected, will put even more power into the hands of magistrates by extending the range of offences they can try, increasing their sentencing powers, and removing in many cases the right of a defendant to insist on trial in the Crown Court (where the chances of acquittal are 10 times that in a magistrates court).

Almost all magistrates are by their very nature, upper or middle class, independantly wealthy, and members of a certain "set". Many, although not all, are freemasons.  Certainly their representation is disproportionately high. They also tend to move in the same social circles as the members of the local police authority and invariably display open bias in favour of the prosecution. 

Whatever people might think, the fact is that some convictions have nothing to do with justice and everything to do with politics.

Mr Harris then goes on to state that everyone subjected to a serious charge is entitled to legal aid. Again complete hog-wash.  In theory he may be correct, in practice that is far from the truth.  Many defendants are refused legal aid, or granted only limited legal aid, on the basis that the legal aid board does not accept that they have an arguable defence.  So, the legal aid clerks are setting themselves up as judge and jury too.  And if legal aid is granted, defendants, particularly facing allegedly "minor" charges (which still have the ability to destroy their lives) are left to be defended by some provincial solicitor who spends most of his life conveyancing houses, because the legal aid will not cover the cost of counsel. 

We have also seen the removal of double jeapardy in serious cases, which is a total affront to justce by this government. 

But now that 3 of their own face charges, how "convenient" that they get legal aid, and, that the rule changes are delayed in their area conveniently until after it is granted - the rules were originally scheduled to be changed in the London area about 6 weeks ago.  

I wonder if Mr Harris, with his known connections to the labour party, could explain why, if legal aid is so freely available, all barristers end up doing so much pro bono work in the criminal courts ? 

 

 

 

davidwinch's picture

Legal aid & the "interests of justice"

davidwinch | | Permalink

Just to be clear, anyone sent for trial in the Crown Court will be considered to have passed what is known as the "interests of justice" test and so will not be refused legal aid on the ground that they do not have an arguable defence.

The comment made by C_D concerning the refusal of legal aid relates to trials in the Magistrates' Courts.  The only exception is that the 'IoJ test' will be applied where a person has been tried and convicted in the Magistrates Court but appeals and requires the matter to be re-tried in the Crown Court (and so legal aid may be refused for such re-trials).

C_D is, of course, correct that a conviction in the Magistrates Court may have very significant consequences for a defendant in terms of his reputation, criminal record, ability to obtain or retain a job, etc.  Magistrates do have power to send a convicted defendant to prison.  So the denial of legal aid in the Magistrates Court is by no means a trivial matter.

David

nogammonsinanundoubledgame's picture

What is there to prevent ...

nogammonsinanun... | | Permalink

... a defendent from getting legal aid, and then, outside of that system, privately hiring a private investigator to spy on the sex lives of prosecution witnesses (or for that matter paying personally for additional legal services for which no claim is put through legal aid)?

Upon conviction, is such a person any worse off than had he never applied for legal aid (but still pleaded not guilty)?

With kind regards

Clint Westwood

davidwinch's picture

Solicitors

davidwinch | | Permalink

Clint

A defendant who is represented under legal aid will have instructed a solicitor (and possibly a barrister too).  He / They will know that they are operating under legal aid and will know that the rules prevent 'topping up' of legal aid work by a bit of extra work paid privately.

So, in the circumstances you suggest, the solicitor should not instruct a (privately paid) private investigator on behalf of the client and - if the client instructs one directly - will be faced with a problem when the client surprises him by producing the evidence garnered by the investigator.  I am not sure whether the solicitor would in those circumstances (i) have to 'shop' his client to the Legal Services Commission or (ii) would be unable to make use of the evidence in Court.

Interesting question though!

David

cymraeg_draig's picture

Topping up

cymraeg_draig | | Permalink

The comment made by C_D concerning the refusal of legal aid relates to trials in the Magistrates' Courts.  The only exception is that the 'IoJ test' will be applied where a person has been tried and convicted in the Magistrates Court but appeals and requires the matter to be re-tried in the Crown Court (and so legal aid may be refused for such re-trials)..

David

Posted by davidwinch on Thu, 15/04/2010 - 03:55

 

David it also applies to all civil matters, and it's rather "strange" that civil claims against "the state", claims for false arrest, false imprisonment, and yes claims against HMRC too, are almost routinely refused legal aid.  Conspiracy ? 

 

 

As regards the "topping up" of legal aid - the defendant will have signed a form stating his income (ie income support, low pay, or whatever).  If any additional funding he supplies does not fit with that financial profile, then the instructed solicitor has a duty to refer the matter to the legal aid board. 

Now heres the silly bit of this and why it should be properly managed. Take the case of parents concerned about proving their sons innocence. 

  1. The give him £20,000 to pay a private detective - he loses legal aid as he is deemed to have sufficient capital. 
  2. The parents employ the private detective and pay him themselves, handing his findings to their son - no affect on their sons entitlement to legal aid as his financial circumstances have not changed.

 

 

davidwinch's picture

Financial support from others

davidwinch | | Permalink

Yes, I agree that financial support received from others (such as concerned parents) can be taken into account as a financial resource of the applicant for Crown Court Means Testing (CCMT) purposes - see Reg 25(2) The Criminal Defence Service (Contribution Orders) Regulations 2009.

Technically this does not (under CCMT) mean that the defendant 'loses' legal aid, but it could mean that he ultimately has to pay to the Legal Services Commission a sum which fully reimburses to them his legal defence costs.

Again here I am referring to criminal cases in the Crown Court.  The position is different with regard to cases in the Magistrates Court and to civil cases.

David

freemasons ?

Anonymous | | Permalink

Some of these magistrates play golf too, and there may be a secret signal to the magistrate usually the scratching of ones balls that may mean something.

The all seeing eye is watching you and he's not over keen on the welsh ! I've heard.

 

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