Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Carlile of Berriew Excerpts

Tuesday 24th January 2012 Lords Chamber

[Lord McNally]

How unworthy! The test of that will be what we bring back on Report, but this is not a way of dodging a debate tonight.

[Lord Carlile of Berriew]

I hesitate to interrupt my noble friend, but we are curtailing the debate and what he has said is very helpful. Can he assure the Committee that, in preparing an amendment, the Government have in mind the importance of the duty solicitor scheme and of there being a process of integrity in the police station, so that suspects do not choose to refuse to answer questions in interview because they are not properly represented? Can he also assure us that the Government will bear in mind the risks of evidence obtained in police stations being rejected by courts because of a failed and unfair procedure in those police stations? Those of us who started practice at the Bar would say to my noble friend that there were long periods in our early practice when we cross-examined police officers about what used to be called “verballing”. I am sure that my noble friend understands the expression. I hope that whatever amendment is introduced will ensure that we do not have to return to the bad old days before the enactment of the Police and Criminal Evidence Act 1984.

[Lord Bach]

The Committee will be relived to hear that I will not be making the speech that I intended to make. I absolutely agree with what the noble Lord, Lord Carlile, has just said. I, too, started practising in those days. What happened, in effect, was that guilty men got off—that is the truth of the matter—because, after a while and some notorious cases, juries were not inclined to believe on the basis of confessions alone. The Conservative Government of the time deserve enormous credit for passing one of the greatest Acts of Parliament in criminal justice, the Police and Criminal Evidence Act, which has worked pretty well, as the noble Lord, Lord Macdonald, was about to say before he was so rudely interrupted by the Minister.

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[Lord Thomas of Gresford]

Solicitors. It is perfectly possible for a solicitor to apply to the court, as happens in civil cases, with a cost schedule which indicates how much his costs will be and what reasonable rates he will charge, and for the judge to make an order to control the whole process to permit the release of funds to fund the criminal defence. To my mind, this is an area which the Government should seize on as reducing the burden of criminal legal aid. It is unlikely that all the assets of the individual will be recovered in an application under the Proceeds of Crime Act. Accordingly, the sooner that the Ministry of Justice gets its hands on the money—in the sense that it does not have to pay out legal aid—the better.

I hope that my noble friend will take the issue seriously and address my proposals. I beg to move.

[Lord Carlile of Berriew]

My Lords, I shall start by making a few comments about my professional experience and then look at the broader picture. In recent years, the bulk of the publicly funded work I have done at the Bar has been in very high-cost cases, as they are called—very large fraud cases. I have seen a procession of those cases in which substantial funds have been restrained and not used for the costs of the case. Confiscation proceedings have followed in those cases where there have been convictions. In some cases, they have been long drawn-out. The funds have rarely been confiscated in full.

In one case I can think of, the confiscation proceedings lasted two or three years and, in the end, the defendant was returned £30 million, I believe, because the wrong procedures had been used by the prosecution. In another case from my experience in recent years, a defendant who was later sentenced to nine and a half years’ imprisonment and made the subject of a confiscation order in excess of £130 million remained, throughout the period leading up to and during the trial and for a considerable time after—as far as his family was concerned—living in one of the finest apartments in central London, worth many millions of pounds. Nobody was able to lay a hand on any of it. By the time the confiscation proceedings were over, such a miasma of transactions existed that that substantial property was immune from any confiscation. There are current cases, about which colleagues have told me—and without referring to any of my own current cases—in which a similar picture may emerge. This is an issue on which the Bar Council, of which I am an elected member, as I said in an earlier sitting, has given a great deal of attention. I should say that on this subject at least it might be worth listening to the Bar Council. Senior members of the Bar act for the prosecution and defence in every one of these cases, bar a very few.

The intention of the Bar Council in proposing amendments, believe it or not, was to save legal aid funding and to create a situation in which people’s own money, subject, of course, to proper controls, was used to pay for their own defences. It would create a situation in which a defendant, who at present may be able to relax while public money is expended on abuse of process hearings, dismissal hearings, disclosure hearings, and all kinds of satellite proceedings, costing him nothing, may have to control the spending on his defence. It seems a very sound principle that the defendant who has resources should have some control over the spending on his or her defence.

Furthermore, restraint orders are on the increase, as the General Council of the Bar has pointed out to the Government. In 2009-10 the CPS made 1,549 restraint orders. That had increased to 1,641 by 2010-11. The estimated value of assets under restraint in 2010-11 was as much as £744 million, every penny of it being money available to be spent on criminal defence but not so spent. Any legal advice and representation in those cases is charged to the legal aid fund. These are cases which, on the latest available figures—from 2005—caused the expenditure of more than 50 per cent of Crown Court legal aid, although the cases amounted to only 1 per cent of the cases. The average cost per case for those cases in 2003-04 was £2.6 million, with the average trial lasting 67 working days. These are very big cases, which are being unnecessarily funded from public funds.

A defendant accused of serious fraud may, for example, have £1 million on deposit in a bank account, frozen under a restraint order. An order may be made for the funds to be unfrozen to pay his children’s private school fees. I was involved in a case recently in which exactly that happened. The defendant was unable to fund his own defence but he was able to fund his son’s school fees at one of the best public schools. My noble friend Lord Thomas of Gresford has contrasted the criminal situation with the civil courts. He described the reaction of the noble and learned Baroness, Lady Butler-Sloss, to what he had told her and she certainly represented the civil court position correctly.

The Government’s response to the Bar Council’s proposal, and that of some of your Lordships, has been to argue, at least so far, that the sums restrained need to be preserved in the hope that, at some point further down the line, a confiscation order may be obtained on conviction. In November 2011 several national newspapers ran stories on revelations that at the end of March 2011, the sum of money outstanding in purported confiscation orders was £1.26—wait for it—billion. That made the front page of the Sun. I suggest to my noble friend that the hope that some money might be recovered is no substitute for meeting the up-front costs of the defence via the legal aid bill.

When confiscation orders are made, they are not used to fund legal aid but are channelled to other government departments; they go into the general Exchequer pot. This does not reflect the strain placed on the legal aid budget by high-cost fraud cases. Therefore, this seems to be—if I may be forgiven a vernacular phrase—a complete no-brainer. It is a way of saving the legal aid fund—to use another such phrase—shedloads of money. I say to my noble friend: let us wake up and do it.

[Lord Bach]

My Lords, I must say, having heard those two speeches, that I would not want to be the Minister tonight. Having heard what was said and having read about this from the Bar Council and the Law Society, which both put in effective papers, I will say at once that I regret that in my time as Minister we did not spot this, because there is no question that we should have acted on it. The noble Lord can make as much fun of me as he likes, but it is no answer to the points that have been made. There are times during the passage of Bills when a Government behave totally irrationally. I speak from experience. There are all kinds of examples—not that many in my case, but some. I know that the noble Lord, Lord McNally—

[Lord Carlile of Berriew]

Perhaps I could ask the noble Lord not to be so modest.

[Lord Bach]

I will do my best.

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[Lord McNally]

Nevertheless, the previous Government passed the Proceeds of Crime Act 2002, which prevents restrained funds being released to a defendant for legal expenses in relation to the offences to which the restraint order relates. The Committee will be aware that assets recovered from the proceeds of crime are already applied to offset the overall costs to the public purse, although I note the points made by the noble Lord, Lord Carlile, about the success of confiscation orders. The noble Lord, Lord Thomas, will know that when he put this idea to me, it seemed very attractive with a little Robin Hood stuff about it. However, the reason that the previous Government took action through the Proceeds of Crime Act was that in their judgment there was a risk that individuals might recklessly dissipate assets through lavish spending on their defence in order to try to secure an acquittal at any cost. In 2002, the then Government decided that it was better to allow access to legal aid than to allow an individual to draw down restrained funds to pay for their defence. Restrained assets in these cases are suspected to be the proceeds of crime. They are not therefore legitimate money, and they should not be used to fund the costs of a person’s defence lawyers. First and foremost, the victims of crime ought to be compensated for their loss.

[Lord Carlile of Berriew]

Before my noble friend goes down this course, which is an accusation that defence lawyers are simply going to charge what they like and take as much as they want, will he read his own clause? Nobody is saying that defence lawyers should be able to say, “Okay, I’ll take £1,000 an hour for representing you”. It is all subject to regulation and to the kind of limitations that currently apply through the LSC. What the Minister is saying at the moment simply does not recognise what the amendment provides. Will he please answer the amendment?

[Lord McNally]

I think the noble Lord protests too much. I was explaining to him the motivations of the previous Government for bringing in the Proceeds of Crime Act.

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[Lord Carlile of Berriew]

In his closing remarks, perhaps my noble friend would like to reflect upon what the noble Baroness, Lady Buscombe, said. In the last group of amendments there was some discussion of post-legislative scrutiny. It is now something like nine years since the Proceeds of Crime Act was passed and I am not aware of any post-legislative scrutiny on this issue. Might this not be the occasion for some creative post-legislative scrutiny?

[Lord Thomas of Gresford]

I should hate to say who should be there in sackcloth and ashes, but clearly things went wrong and the reasons that were given by the Government of the day proved to be without foundation. The situation is simply a disgrace. The quicker the Government move to carry out this review that they are having in the Crown Court, the better.

I shall withdraw this amendment, but I can assure my noble friend the Minister that I shall be pounding on his door about it while this Bill is going through and, if nothing happens, thereafter.