Open season?

I don't know whether anyone out there agrees with me but I wonder whether the powers granted to the authorities under confiscation orders have struck the right balance?

There was certainly a need for legislation of this sort, and prior to its introduction crime could be said to "pay" even if caught.

But my perception of reading David's site is that once the criminal is convicted, the prosecuting authorities appear to be under no rules of restraint when assessing the supposed proceeds of criminal activity, and have free reign to come up with an outlandish figure on the flimsiest of pretexts, against which the defense can then chip away in bits in pieces.

Were I a judge in a case in which (as in one of David's case studies) a confiscation claim for £400K was shown to be overstated by £300K I would throw out the remaining £100K as well.  There has clearly been no attempt by the prosecution to assess anything like the "right amount" of proceeds of crime, and if they are under no obligation to do so then that I think is a flaw in the legislation.  The original claim was nothing more than pure speculation arising out of thin air.

With kind regards

Clint Westwood

Comments
davidwinch's picture

The burden of 'proof'

davidwinch | | Permalink

Clint

I assume you are referring to one of the items (the one in relation to 'Arthur') in the Case Studies page on my website at http://www.accountingevidence.com

As you rightly say, we are dealing in confiscation cases with individuals who have been convicted of one or more offences.

There are a class of cases, referred to as 'criminal lifestyle' cases, which are becoming commonplace.  In such cases the offence(s) of which the defendant has been convicted meet statutory criteria (set out in s75 Proceeds of Crime Act 2002).

One might argue that those criteria are met all too easily.  For example, a single mother on Income Support has a man move in with her.  She fails to notify the DWP (who would stop her Income Support if they knew).  Her behaviour is deliberate (she knows she should tell the DWP and what would happen if she did).  The situation persists for 6 months or more.  The Income Support overpaid amounts to £5,000 or more.  She is found out, prosecuted and convicted.  She is sentenced to 150 hours 'community service'. She now has a 'criminal lifestyle' (by definition per s75).

Because she has a criminal lifestyle in confiscation her 'benefit' of criminal conduct is assessed using the statutory assumptions of s10 PoCA 2002.  These say that (i) everything she has received since the 'relevant day' is assumed to be derived from unspecified criminal conduct, (ii) everything that she has spent since the 'relevant day' is assumed to be funded from unspecified criminal conduct, and (iii) everything she owns at the time of her conviction or subsequently is assumed to represent a benefit of unspecified criminal conduct.

The 'relevant day' is the day 6 years prior to the date upon which she was charged with the offence.  Suppose she was charged on 15 May 2009 then the first two assumptions apply to the period since 16 May 2003.

The prosecutor will get her bank statements since 16 May 2003 and tot up all the credits to the accounts.  Then he will look at any expenditures known to him which have not clearly been paid from monies withdrawn from the accounts - for example if he knows she has been on a holiday or bought a car and that has not been paid from the bank account.  (In more serious cases a defendant's home may have been searched at the time of his/her arrest and paid bills seized with a view to subsequent confiscation proceedings.)

Finally he will tot up the value of her possessions as at the date of conviction.

The prosecutor then adds all these together to get a figure of 'benefit'.

It is not for the prosecutor to seek out evidence to show that any of these items were actually legitimate.  He is not attempting to get a 'fair' or 'right' figure.  He is applying the statutory assumptions prescribed by law.

The burden is then on the defendant to rebut the assumptions (on the balance of probabilities) by 'clear and cogent' evidence.  By so doing the 'benefit' figure is reduced.

Ultimately the defendant will be required to pay over an amount equal to the lower of (a) the 'benefit' figure or (b) his/her 'available amount'.

'Available amount' is defined to mean gross assets less secured liabilities (broadly speaking).

Courts recognise that this is Draconian legislation - but it is the will of Parliament, our elected representatives, expressed in unambiguous and mandatory language.

It is akin to a tax investigation scenario in which unexplained receipts are presumed to be taxable income.  Except that instead of tax, interest and penalty there is a 'charge' (if you like) at the rate of 100% and it is based on gross receipts (rather than on profits).

It's very tough.  But then we are dealing with convicted criminals.

David

nogammonsinanundoubledgame's picture

Yes

nogammonsinanun... | | Permalink

I appreciate that there must be a presumption of dishonesty from the outset, which is slightly different from other litigation.

Thanks for summarising the procedure.  Pure curiosity on my part.

With kind regards

Clint Westwood

davidwinch's picture

My pleasure

davidwinch | | Permalink

Clint

My pleasure!

As you will recognise there is plenty of work for a forensic accountant to do which may assist a person facing confiscation proceedings in a 'criminal lifestyle' case.  The key thing is to find and collate evidence which explains the true sources of funds.

In many cases the 'benefit' figure asserted by the prosecutor can be significantly reduced.

You might be surprised to learn that the majority of these cases are settled by last minute negotiation and agreement (typically in a corridor in the courthouse on the day the hearing is due to commence!).  There then follows a brief appearance before the judge at which he is invited to 'rubber stamp' the deal and make a court order in the agreed terms.

It can be high adrenaline stuff!

David

"But then we are dealing with convicted criminals."

chatman | | Permalink

David,

Given, as you point out, that a convicted criminal could be a woman on benefits who cannot afford to tell the DSS that a man has moved in with her, is it not a little harsh to say "But then we are dealing with convicted criminals", as if to mitigate the overkill in the legislation?

Also, owing to the documented dishonesty of our police force and legislature, and the inherent and non-inherent deficiences in our justice system, I prefer the term "people convicted of a crime" to "convicted criminals".

Absolutely no quarrel with the technical content of your postings, though. Always spot on and very informative.

davidwinch's picture

Response to Chatman

davidwinch | | Permalink

Chatman

I take your point.  I was aiming for a 'balanced' view in the post and, as you note, the subject in my example was a single mother - a person with whom the reader might be expected to have some sympathy.  I could have chosen, say, a member of an organised gang of international drug dealers as my subject.

Also it is possible that others might think my use of the term "defendant" to describe someone who has been convicted as inappropriately generous.

In the example I gave the defendant was clearly guilty on the facts quoted.  That is not to say that everyone found guilty in court in the UK has actually committed the crime of which he/she has been convicted.

I hope you do not pigeon-hole me as a fully paid up member of the 'hang 'em and flog 'em' brigade!

David

foreign bank accounts

Anonymous | | Permalink

Surely one only has to have a bank account in a non uk friendly jurisidiction and not own any property in the UK for this legislation to be ineffectual.  (You don't need an accountant to do this otherwise it would be reported) A single mum (who I admit can be high earners ) has probably spent all the cash and as the government pay her wages will they also be subsidising the confiscation order !

One wonders why we are breeding more of the unemployable surely the money would be better spent on sterilisation after all we must be able to manage this now we have widescale DNA testing and less intelligent strains could be breed out !

However if these guys are caught then the confiscation ordr should also be part of the punishment, not just a returning of goods that were borrowed interest free !

davidwinch's picture

Hidden assets

davidwinch | | Permalink

The legislation includes provisions relating to hidden assets and tainted gifts.

Also the position is that where a defendant cannot satisfy the court that he has provided full information concerning his 'available amount' then the confiscation order has to be made in the figure of 'benefit'.

Where a confiscation order has been made but the amount due under it has not been paid then the defendant may be sent to prison for a period related to the amount outstanding (with a maximum of 10 years for amounts of £1 million or more).

So the legislators have made a considerable effort to make this legislation difficult to sidestep.

In practice it is commonplace to see prosecutors allege a 'benefit' figure in excess of £1 million.  By way of example see

http://www.bailii.org/uk/cases/UKHL/2008/30.html

David

Reply to David Winch

chatman | | Permalink

Glad you are not a member of the "'hang 'em and flog 'em' brigade". Your single mother example was a good one in that respect.

I think "defendant" would be an excellent term to use. If we substititued it into the sentence to which I took issue, I think it would be much fairer.

Old Greying Accountant's picture

Isn't it peverse...

Old Greying Acc... | | Permalink

... that the punishments for white collar money crimes are always so severe, but those for violence, burglary and shoplifting paltry by comparison.

Doubly so when members of parliament are the worst offenders but they walk away scot free! To me there is no difference between mp's expenses and benefit fraud.

May be if the prisons were not so full of financial "criminals" there might be some room for those who are a genuine threat to life and limb.

Bring back National Service I say, three strikes and your in! - either any one who refuses 3 reasonable offers of employment (which with a NMW should be any offer!!) or three cautions/convictions. A short burst of basic training and out to Helmand - that should thin the numbers down pretty pronto.

 

 

 

 

davidwinch's picture

Sentences for white collar crime

davidwinch | | Permalink

It has to be said that sentences for white collar crime in the UK are nowhere near as severe as those in the US.

For example, Michael Bright (chief executive of Independent Insurance) was sentenced to 7 years in 2007 following the collapse of the insurer six years earlier.  He also paid £1.25 million (from his pension fund) by a procedure in lieu of confiscation.

Bernie Madoff on the other hand was sentenced to 150 years imprisonment in the US (admittedly for a more serious offence) and is subject to vastly greater claims (but has greater wealth than Mr Bright had).

Also it is fair to say that confiscation in the UK applies to burglars, robbers and shoplifters in the same way as it does to fraudsters.

David

P.S. Both Mr Bright and Mr Madoff received the maximum prison sentences available in relation to the offences of which they were convicted (but the maximum sentence for fraud in the UK has recently been increased).

As you may be aware, persons convicted of offences of violence or certain sex offences may now be given an IPP sentence (an indeterminate prison sentence for public protection).  This means that they have no guaranteed release date and can be kept in prison indefinitely until the parole board are satisfied it is safe for them to be released.

"Bring back National Service"

chatman | | Permalink

Nice to see the Daily Mail sponsoring posts on AccountingWeb.  Much better that someone goes to Helmand and kills people than steals a bag of crisps.

By the way, what are the stats on white-collar crime vs blue-collar crime? I would love to see how OldGreyingAccountant drew his conclusions.

Old Greying Accountant's picture

You miss the point

Old Greying Acc... | | Permalink

They dont go to kill...               ( I think the term is cannon fodder!)

because mugging old ladies and raping women they can do, but when they meet Afghan tribesmen they will realise what being hard really means.

All I am saying on crime is what is the point of locking someone up for stealing, make them pay it back in some way - otherwise it is good money after bad. Also, the family of a prisoner suffer as much as them, even though they have done nothing. Prison should be only for those who are a serious threat to society, although there is a case for short sharp shock detentions (and with the current governments penchant for consultants, French foreign legion veterans would probably fit the bill!).

 

"They dont go to kill"

chatman | | Permalink

And I miss the point?

Old Greying Accountant's picture

May be I'm the only one

Old Greying Acc... | | Permalink

who resents working 60+ hours a week to make an honest living whilst these a***wipes take the p**s!

Once they start showing decent society some respect, may be they will earn some themselves.

Trouble is, when you have a government leading by example, no wonder theft, fraud and extortion are rife!

Unfortunately, by the time the heads of the liberal guardianista emerge from the journey up there own backsides into the light of day once more it will be too late (if it is not already)

Society depends on mutual respect and common goals to work. When jealousy and envy take centre stage it all goes tits up, and when you try and have your cake and eat it - well...

 

 

 

Old Greying Accountant

chatman | | Permalink

Good to hear a balanced view of the issues.

nogammonsinanundoubledgame's picture

Interesting article ...

nogammonsinanun... | | Permalink

... in The Times today (09 December 2009), on about page 52, about the Phillip Bowles case.

Don't know how long the link will remain accessible but most of it is here

http://www.timesonline.co.uk/tol/news/uk/crime/article6949450.ece

Despite not having both sides of the story in front of my I have to say that it sends shivers down my spine.  I wonder who his accountants were up to the point when the proverbial hit the fan.

With kind regards

Clint Westwood

Worse than scary

Anonymous | | Permalink

HMRC investigators need educating and need some ethical behavioural guidelines, unfortunately at the moment any hanging is a success, does not matter whether the person is guilty or not. Sometimes I think we would be better off with Osama bin laden than this government.

weaversmiths's picture

You miss the Point

weaversmiths | | Permalink

Not wishing to jump on the bandwagon too firmly regarding the old chestnut "Bring Back National Service" but, being rather elderly, I was around at the time of the Teddy Boy Gangs etc when we carried flick knives and stillettos.  Many a lad who was being a real pest to society and went off to do his National Service  came back 2 years later a solid citizen.  In fact, after the first 6 week period when they were allowed home for the first time they came back very changed with tales of shaving under an outside tap at Caterick etc etc.  Caring and sharing came into the equasion - not just the "me, me" me" and "where's me handouts".   As for the single mother swindling the benefit system?  Come down really hard, make her pay it all back with interest.  Its not hard to be a mother, single or otherwise.  Get off your rear end and go out and work for the money and stop whinging.  Motherhood can be  described as well paid safe prostitution nowadays and I am paying for it through my Taxes.  Men seem to be well and truly taken in by the myth that motherhood is difficult . You may say that is hard but I have been a single mother in my time - nobody had to pay for my children (FA for one child only , the 2nd, was 8 shillings a week from the State)  I always worked and was proud to do it.   Perhaps a change of government may make people responsible for themselves again - or am I liviing in cloud cuckoo land.

 

 

 

TheAncientOne

these laws have done nothing to contribute to a better society (

Anonymous | | Permalink

and just look what that fool Avery says at the bottom of the article - what a complete disregard for just by a complete idiot

 

http://www.timesonline.co.uk/tol/news/uk/crime/article6949450.ece

The beauty

Anonymous | | Permalink

Justice and the Law? you have to be having a giraffe ! Unfortunately HMRC and the Courts have become political.

I have even heard rumours that the recession is being delayed by HMRC not chasing amounts due until after the general election.

Nothing could be more offensive to an Englishman than an innocent man being convicted ! It is about time Avery turned his attention to proper criminals, he could start at the top and work down.

MP trials must be cost effective as most were banged to rights already.

davidwinch's picture

Not straightforward

davidwinch | | Permalink

The case reported in The Times does not lend itself to straightforward resolution (based on my reading of The Times' article - I hasten to add I have no connection with the case).

I don't want to comment further on that particular case (not least because I am not in possession of all the facts).

But in general terms an appeal to the Court of Appeal is not a re-hearing.  That is, it is emphatically not a re-run of the original trial in the hope of a more favourable outcome.

An appeal will generally be based on some alleged irregularity / defect in the original trial, such as a judge's ruling on admissibility of evidence which was wrong in law, or an improper concealment of evidence held by one side that is required to be disclosed to the other but was not, or a perceived bias in the judge's summing up of the case to the jury, or some other fault which causes the original trial to be improper.

Sometimes the Court of Appeal will hear new evidence (usually) because that evidence could not have been produced at the original trial.  For example, advances in forensic science have lead to some old convictions being re-examined where, say, new analyses of blood samples can show that the blood at the scene of the crime could not have come from the convicted person.  Such analyses were incapable of being made at the time of the original trial.

On the other hand there was a recent case where evidence in a trial was given by an expert witness.  The defendant was convicted.  The defence then approached a different expert witness who came to a different conclusion.  The defendant appealed and asked the Court of Appeal to hear evidence from the new expert.  They refused.  This was not new evidence (it was merely a different opinion about old evidence) and so was not admissible.  The appeal was therefore refused.

So you see the Court of Appeal are not meant to direct their minds to the question, "Would we convict the defendant based on the evidence now available?".  If they did that they would be acting like a second jury - and that is not their role.

David

don't rely on the courts

Anonymous | | Permalink

Thank you David

The message therefore has to be if your innocent, don't rely on the courts !! best to do a runner.

Could one claim he did not have a fair trial, if the defence was hampered by a lack of resources deliberately confiscated to prevent a fair trial, or that the prosecution knew or ought to have known (HMRC experts) that the defendant was innocent ?

The Jury really had no chance of understanding the issues, I know from spending pointless hours trying to explain basic points that you know your client is never going to grasp in a million years. Surely only accountants should have been on the Jury.

Can Jury members be refused by the defence on the grounds they will not understand these complex issues ?

People really do expect HMRC to be fair with them and it is a complete shock when they find out differently.

davidwinch's picture

Jury issues

davidwinch | | Permalink

The jury is there to decide guilt or innocence based upon the evidence which is presented to them in court (and no other evidence / information) and their own innate honesty and decency.

They are not expected to have, for example, any knowledge of tax or accountancy.  Where appropriate the witnesses should include specialists (referred to as expert witnesses) who can assist the jury (and the lawyers!) to understand any technical issues - but who (save in exceptional circumstances) will not give an opinion as to the defendant's guilt or innocence (because that is the job of the jury).

Now if you have a case of alleged tax evasion and the expert says (for example) that the correct figures were declared and the correct tax paid then, in effect, the expert is saying the defendant cannot be guilty.  But the expert is not really commenting upon the guilt or innocence of the defendant - he is commenting on the correct amount of tax due (which is a slightly different matter).

I think it is fair to say that an innocent person prosecuted for tax evasion needs a good team (lawyers and, where appropriate, an expert witness - such as myself) because he needs the jury to understand the situation and to see it as he (the defendant) sees it.

Dishonesty is absolutely key and (as I say repeatedly on here) that includes an issue as to whether the defendant not only behaved in a way that 'honest and decent people' would regard as dishonest, but that the defendant himself realised he was behaving dishonestly by that standard.

Clearly if the defendant genuinely believed he was behaving honestly he will be acquitted by the jury if he has got that message across to them convincingly.  That is where the defendant's professional team need to be effective.

Paradoxically, some defendants - because they 'know' they have done nothing wrong - believe that little effort will be required to gain acquittal.  Those same people probably waived their right to legal advice when first arrested and interviewed.  Seldom a wise move, in my opinion.

(By the way, the defence cannot ordinarily object to an individual being included in the jury unless they believe he is acquainted with a witness / defendant / barrister in the case or may have previously received prejudicial information which makes him unsuitable to act as a jury member.)

David

P.S.  It is pretty standard practice for a restraint order to be made during the investigation of someone suspected of financial crime, so that he cannot spirit away his ill-gotten gains (if he indeed committed the offence).  That restraint remains in force until all legal proceedings (including confiscation, if any) have been concluded.

Under s41 PoCA 2002 restrained assets cannot be used to meet legal expenses relating to the suspected offence which was the basis of the restraint being ordered.

The defendant therefore has to rely upon Legal Aid to fund his defence.  If the Legal Aid authorities refuse to fund, say, the cost of an expert witness then this can be appealed but ultimately may mean there is no money to pay for an expert.  (Expert witnesses are not permitted to offer 'no win, no payment' terms as they are required to be independent and impartial.)

Again you need a good legal team to persuade the LSC (the legal aid people) that funding is required for an expert - and you need to find an expert who can do the required work and will do it for the amount the LSC are prepared to pay.  (This last is becoming increasingly difficult as LSC funding from government is being squeezed - but I digress!)

davidwinch's picture

Make her pay it all back

davidwinch | | Permalink

Just to be clear, where a person is convicted of benefit fraud (and in other cases of overclaimed benefits) DWP have power (and use it) to require repayment in full of amounts overpaid (usually by way of deduction from future benefits).

Anything payable under confiscation proceedings is in addition to this repayment.

David

davidwinch's picture

The forensic accountant's report "was not seen by the jury"

davidwinch | | Permalink

The Times report is a little misleading perhaps when it says that the forensic accountant's report was not seen by the jury.

Normally a forensic accountant's report is seen firstly by the solicitors who commissioned it, then by the barrister instructed by those solicitors.

If the report is prepared on the instructions of solicitors acting for the defendant in criminal proceedings they then have a decision to make.  Do they wish to call the expert to give evidence?

They will only wish to do that if they think that calling him (and allowing him to be subject to cross-examination) will do more good than harm.

If they decide not to call him then they will not disclose his report to the other side, the judge or anyone else.  (Although it might inspire them to put some difficult questions to the prosecution witnesses.)

If they decide to call him to give evidence they must first send copies of his report to the prosecution and the judge.

However copies of the report would not normally be made available to the jury in any event.

To understand this you need to appreciate that a trial works on the basis of "stand and deliver".

The expert witness will be called to give evidence and (in a criminal trial) will be asked questions about his skills etc, what information / documents he received, what he did, what he found and what conclusions he drew.  All this by question and answer in the witness box.

The other side's barrister will then ask questions in cross-examination.

The jury get to see and hear all this - but they do not get a copy of the report to read.

The jury do get a bundle of papers to look at in the jury box, but these will be key documents (for example copy invoices and VAT returns, or whatever is relevant to the issues).  But they cannot take these documents away to study as 'homework', they have to leave them in the jury box - even in coffee breaks. 

As the Q & A is going on they may be asked to look at particular documents that are relevant.  E.G. Barrister: "Mr Winch would you look at the document at page 54 - What is it?". Me: "It is a copy of a VAT Return of XYZ Ltd for the quarter ended 30 April 2007."  Barrister: "Members of the jury you can see this at page 54 in your document bundle." Barrister:  "Now Mr Winch, . . . ."

The thinking is that if jury members took papers away to study they might see things that had not been the subject of 'live' scrutiny in court, and they might misunderstand the documents, or place undue emphasis on unimportant bits, or whatever.  So they don't get the opportunity to read documents in private study.

This means, of course, that both the lawyers and the expert witnesses need to master the art of communicating sometimes complex information in "stand and deliver" mode.

It's part of what you learn (hopefully) as an expert witness!

David

P.S.  If a report is prepared on the instruction of the prosecution then it should always be made available to the other side - even if it is harmful to the prosecution's case.  The rules here are deliberately one-sided in favour of the defendant.

nogammonsinanundoubledgame's picture

As regards the restraint order ...

nogammonsinanun... | | Permalink

... it cannot be beyond the wit of man, to dream up a system in which the defendant's legal team have access to the assets of the defendant to the extent that such resources are necessary to fund the defence, without those resources being made available to the defendant for any other purpose (ie to "spirit them away", to paraphrase an earlier post in this thread).

With kind regards

Clint Westwood

Old Greying Accountant's picture

Thank you weaversmith

Old Greying Acc... | | Permalink

A small calm voice of reason.

As a recent survey of surviving war veterans concluded, if they had of known what sort of society we would have now, they wouldn't have bothered joining up.

You come into this world with nothing, and you leave it with nothing; it owes you no living other than that for which you toil; you have no rights other than those which you earn through your fair and honest dealings with others; and however you try and pervert and twist the natural order with unnatural laws it doesn't change this underlying fact!

 

...calm voice of reason??

chatman | | Permalink

...the voice that described motherhood as well-paid prostitution.

If I really felt that I was born with no greater chances in life than the majority of those who end up committing crimes of petty theft, I would be feeling pretty smug.  Fortunately I am under no such illusion.

Old Greying Accountant's picture

may be you don't like the words...

Old Greying Acc... | | Permalink

... but that doesn't change the facts!

Until we give up the relentless persuit of profit and start looking at the bigger picture you're probably right, but I don't see that happening any time soon do you?.

Yes, some start off with greater opportunity than others, but it is the choices you make. If you feel you have had a better start in life, what have you done to help those at the the other end of the scale? Do you stand at the top shouting "I'm the king of the castle..." stamping on the fingers of those climbing up, or do you reach a hand down to help them up too?

Equally - do you stand at the bottom trying to pull those down from the top, or do you try and climb up too?

Or you could be truly great and stand at the bottom, giving everyone else a lift up first!

 

 

 

Abandon all hope ye who enter here !

Anonymous | | Permalink

Thanks David

Very informative, although it does sound as if the rich or career criminal will have access to a much better defence and the Jury's decision may well be a game of chance.

I hope I never get called up for jury service, the lack of being able to see for myself would be most frustrating.

I feel sorry for the innocent man convicted.

It seems that convictions can no longer be relied upon either.

davidwinch's picture

Restraint orders and legal fees

davidwinch | | Permalink

Clint

I take your point but, if I may, I will put the other side of the argument.

Would it be fair to allow a successful criminal to use his ill-gotten gains to purchase more resources for his defence in criminal proceedings than the honest man who has no such wealth?

From the point of view of a successful criminal he may know that, if convicted, he will lose all his money in confiscation proceedings.  So there is no financial 'cost' to him in paying 'top dollar' for lawyers and experts since he would be spending money that will be lost to him either way.  Is it appropriate to permit him to do that?

The present rules prevent the successful criminal from gaining that advantage - but they also prevent the honest man from using any private funds of his to fund his defence.  The problem is that you are unable to distinguish the criminal from the honest man.

David

The problem is that you are unable to distinguish the criminal f

chatman | | Permalink

The problem is that the quality of your defence depends on the amount of money you have.

nogammonsinanundoubledgame's picture

David I find the counter-argument unpersuasive

nogammonsinanun... | | Permalink

I appreciate that you are playing devil's advocate and may not be expressing your personal views.

At the time of the proposed expenditure the defendant has not been convicted of any criminal offense.  He is no more than an indicted suspect.

It is an unfortunate feature of legal systems throughout the world that one who has to rely on legal aid (where available) may expect such aid to be of poorer quality than one with unlimited funds from which to purchase a defense team on the open market.  The unpalatable feature of this system is not that the rich get an excellent support team, but that the poor get a poorer support team.  To object to the former as having an unfair advantage is the politics of envy, the only solution to which is to require that no defendant ever is entitled to any defense team other than that which is supplied under legal aid.

If you purchase a top notch defense team at a substantial personal financial cost then the only potential benefit to you, the defendent, is a greater likelihood of acquittal.  Certainly you derive no other benefit from the funds.  It is the lawyers who benefit from the funds (and HMRC as a tax on the lawyers' profits).

The only occasion on which an individual actually benefits unfairly from such expenditure is where he is in fact a criminal but despite which the defense team secure an acquittal where a lesser defense team (such as might be available under legal aid) would be unable to achieve that result.

I take the fairly simplistic view that it is for the prosecution to prove a conviction.  If an individual is acquitted then I will give him the benefit of the doubt and assume his innocence.  If it took a lot of money to achieve that result then he can count himself fortunate that he had the opportunity to spend a vast amount on the defense.  To suggest that he must in fact be guilty because a lesser team would be unable to mount that defense is obscene.

With kind regards

Clint Westwood

davidwinch's picture

Chatman - no it doesn't . . .

davidwinch | | Permalink

It doesn't depend upon the amount of money you have if there is a restraint order because your money is frozen and cannot be used to pay for your defence.

David

ShirleyM's picture

Equal footing

ShirleyM | | Permalink

It has been stated above that engaging your own defence would give you unfair advantage.

Therefore we must assume that legal aid is a disadvantage. In the cases specified above the guilty and innocent face the same disadvantage, but what about the wealthy people who have wealthy friends/colleagues/business partners.

Would they be permitted to 'foot the bill' for the defence and therefore give an unfair advantage to their friend?

David

chatman | | Permalink

I didn't misunderstand David. What I meant was that we have a system that allows a better defence (and therefore a better chance of geting off a charge) for those who have the money to pay for it. It was a general comment about the justice available in the cases of all types of crime.

Surely

Anonymous | | Permalink

Surely comments that the records "could be considered by counsel with a calculator" are an insult to the complexity of these cases and shows a total disregard for the law in achieving the right result. If I had a pound for every such commentator whose bookkeeping records turned out to be a disaster I would be a rich man.

The confiscation order is just another abuse of process that achieves its aim of sending a man quickly to prison.

Unfortunately these rules that seem a good idea are often used for a different purpose to what they were intended for, or what we perceive they were intended for.

It is a shame the justice system does not exist to protect the innocent.

Would it not be better if ten guilty men walked free than one innocent man was found guilty, who said that ?

perhaps someone will correct my mis quote !

davidwinch's picture

Paying for a defence

davidwinch | | Permalink

There are circumstances in which a person other than the defendant might be prepared to meet the costs of engaging lawyers / experts for the defence.  For example an employer or a friend or relative.

It is also inevitably the case that a defence which is fully resourced may be able to undertake more tasks (or devote more time to tasks) than a defence which is operating under Legal Aid funding.

Again one might argue that a fully funded defence has more options open to it relating to who might be instructed.  But I do not say that it necessarily follows that the most expensive will be the best.  (In that respect accountancy, law - and indeed other professions - have something in common.)

There have been cases recently in which we have reached the point - or come perilously close to it - at which the funding is so meagre that NO-ONE will undertake the work.  That certainly is a problem.  For example the funding rules had to be hurriedly changed a few months ago in relation to certain confiscation cases because there were no barristers prepared to undertake the work.

To put some figures on this - in my field (accountant expert witness) the LSC is proposing to 'cap' payments for work leading to the preparation of a report to £100 per hour.  Attendance at court hearings is proposed to be capped to £490 per day.  To the man in the street these figures may sound generous, but users of this site will appreciate that they are not.

It is proposed that these rates may be exceeded in 'exceptional' cases - and one can foresee that there will be many arguments about whether a particular case is 'exceptional'.  But the LSC is under pressure to reduce expenditure and this is how it plans to do it.

We live in interesting times!

David

nogammonsinanundoubledgame's picture

I thought ...

nogammonsinanun... | | Permalink

... that there were some arcane rules that denied a barrister the right to refuse a brief?  Without it any individual whose defensive prospects were bleak might have found it difficult to obtain representation (and this was before POCA).  In its infinite corporate wisdom the justice system deemed this to be an unsatisfactory state of affairs, and so ...

Way outside my area, so just out of interest.  Maybe it was one of those urban myths.

With kind regards

Clint Westwood

davidwinch's picture

Barrister refusing a brief

davidwinch | | Permalink

Below is an extract from an article in The Times last year:

"So when can a barrister turn down a brief? Barristers are not meant to withhold their services on the ground that the case is “objectionable” to him or her or to any section of the public; or that the client’s beliefs are unacceptable or because of the source of financing provided to the client. But there are wide grounds for refusal: they must turn down work if they lack experience or competence in a case; and can do if they will not have time to prepare the case properly, for instance. Or if the fee is not adequate to the case."

David

QED... I think

Mark R Outhwaite | | Permalink

 

 

 

Reblog this post [with Zemanta]

 

If I may tease out the problem that I think people are objecting too, using David's last post, I think that it runs something like this (with my emphasis in bold):

"So when can a barrister turn down a brief? Barristers are not meant to withhold their services on the ground that the case is “objectionable” to him or her or to any section of the public; or that the client’s beliefs are unacceptable or because of the source of financing provided to the client. [This is now a Government decision based upon guilt on accusation rather than any criminal conviction that the assets of the individual are tainted on accusation]   But there are wide grounds for refusal: they must turn down work if they lack experience or competence in a case; and can do if they will not have time to prepare the case properly, for instance. Or if the fee is not adequate to the case.  "  [Also now an indirect Government decision, given that if all assets are frozen then most accused will have to rely on Legal Aid.  Who’s funding and rates of pay have been slashed and not agreed by most criminal barristers.  Thus anyone accused has almost no ability to mount any kind or reasonable defence given the need to access experts in this complex and rapidly changing area.]

Thus fundamentally changing, imho. the relationship between individual and Government from innocent until proven guilty to one of being guilty on accusation with an only an underfunded defence being permitted to take part in what amounts to a show trial.   {This is one of the key reasons I do what I do.}

This is not only unjust it is, over the long term , it is deeply damaging to any democracy, even one as currently dysfunctional as ours.

Do posters to this discussion agree?

Cheers

Mark

BTW, I've found this has been a very interesting post so far, I'm going to stick a link to this discussion to my blog. 

 

Criminals given an advantage???

Anonymous | | Permalink

It would appear from the above postings that personal funds may become unaccessable.

A criminal could have the foresight to lodge funds with a trustee (or friend) to assist in defence if he/she should be caught, as they would know of the risks they were taking and could take these steps to ensure they have the greatest chance of 'getting off' if apprehended.

The innocent cannot possibly have this foresight, as they would have no reason to suspect they may be wrongly charged.

Is there anything to prevent this scenario or is this yet another failing of the justice system?

 

davidwinch's picture

SSSSHHHHHH !!!

davidwinch | | Permalink

Don't tell anybody but . . .

  . . . the criminals sometimes break the rules!

That being the case it doesn't make too much difference to them what the rules are.

David

nogammonsinanundoubledgame's picture

More of the same

nogammonsinanun... | | Permalink

I see that the government had hoped to use the Proceeds of Crime Act to apply for confiscation orders against parking fine evaders:

http://www.timesonline.co.uk/tol/comment/letters/article6952003.ece

Thankfully the House of Lords put the brakes on that.

Next thing you know, they'll be trying to use the Prevention of Terrorism Act to stop you from taking photographs outside St Paul's.  Oh, wait a moment ...

With kind regards

Clint Westwood

listerramjet's picture

hackles rising!

listerramjet | | Permalink

I seem to recall an important point in English law - something about being presumed innocent until proven guilty. I guess this is something that is being phased out?

davidwinch's picture

Hackles

davidwinch | | Permalink

Just a word on the presumption of innocence.

You might recall in tax law it was for many years the case that a Tax Inspector could raise an assessment to the best of his judgement and then it was for the taxpayer to show that it was excessive.  In that context monies received by a taxpayer (such as a self-employed individual) were assumed to be taxable income unless the contrary could be demonstrated.  Confiscation law has some similarities.

Confiscation law under Part 2 Proceeds of Crime Act 2002 applies only to an individual who has been convicted of one or more offences.  Having been convicted he is no longer presumed innocent.  Under confiscation law, where the convicted person is deemed to have a 'criminal lifestyle' (as defined by s75 and Schedule 2 of PoCA 2002)  various statutory assumptions are applied unless rebutted by 'clear and cogent evidence' to the satisfaction of the court (on the balance of probabilities).

Basically, in respect of the period beginning 6 years prior to the date on which the individual was charged with the offence of which he was convicted, all receipts of his are assumed to be derived from crime, and all expenditure of his (other than expenditure funded by known sources - including the receipts just mentioned) are assumed to have been funded from proceeds of crime.  In addition all assets held by him at any time after the date of his conviction are assumed to have been acquired with proceeds of crime.

The amount to be confiscated from him is the LOWER of (i) his benefit obtained from crime (including proceeds assumed to be from crime), and (ii) his gross assets less secured liabilities.

As you can imagine the operation of the assumptions often results in a very large figure of benefit - out of all proportion to the offence.  For example, I am currently dealing with a case in which a person was convicted of an offence involving less than £100 but his alleged benefit is over £1 million.

All of this has been approved under Human Rights law as an appropriate government response to crime.

David

Appropriate Law...hmmmm?

Mark R Outhwaite | | Permalink

The growth of strict liability criminal law under this Government has been enormous and IMHO utterly disproportionate. E.g. wrong recycling in wrong colour bin = criminal offence. 

Now to be fair it was Ken Clarke ant the Tories under John Major who started this trend (fines for no or wrong tickets on the London Underground). But it has been taken to it’s Kafkaesque conclusion (e.g. HM Treasury Terrorist Asset Freezing Unit). by this inglorious Parliament.

2 points I’d like to make here:A) Laws introduced by Statutory Instrument probably haven’t been noticed let alone reviewed by our gloriously venal MP’ in the House of Commons,   (Cor blimey Guv, my Bell Tower / Moat / Duck House / Second Home / etc etc needs fixin at the taxpayers expense so I'm way too busy to do the job I'm paid for).B) Just because a law has been enacted doesn’t make it right. E.g.   The ban on the consumption of Mince pies on Christmas by the Cromwellian shower. Damn, I shouldn’t have mentioned that, these Muppets will try and reintroduce that law!And on that happy note, may I wish you all a Merry Christmas and a Prosperous New Year.Right I’m off to do some AML training in the Kingdom of Saudi Arabia, a country where the laws are at least rational.TTFNMark

nogammonsinanundoubledgame's picture

Re: Hackles

nogammonsinanun... | | Permalink

David, your last post is certainly pertinent to the original post in this thread.  It is not, I believe, of much comfort to Philip Bowles, against whom the alleged injustice was perpetrated prior to his conviction, which might never have arisen under a fair system.  Perhaps it would have been better if that had been in a separate thread.

With kind regards

Clint Westwood

Add comment
Log in or register to post comments