A convicted drugs offender has escaped a confiscation order for up to £4.5 million of his assets because legal aid barristers would not take on the case for the fixed fee of £175.25 a day.
In a dramatic illustration of the impact of new legal aid fees, the man had to act for himself and won an appeal for the confiscation order to be set aside because he was not represented by a lawyer.
Eighteen sets of chambers had been approached in London, Leeds and Sheffield – involving a total of 30 barristers – to see if they would defend the man identified only as P in the confiscation hearing.
Jansen Versfeld, the solicitor who conducted the fruitless search for a barrister, said: “Because of the very low rate of pay for these hearings, £175.25 per day, and the amount of work and complexity
Mr Versfeld, who is with Morgan Rose solicitors, said that there were 6,586 pages of documents and a total of 4,548 transactions that would require arranging into a manageable form by experienced senior counsel for an estimated six-week hearing.
Judge David Mole, QC, sitting at Harrow Crown Court, accepted that the man could not have a fair trial as legal aid “does not provide sufficient funding to pay for the necessary representation”. At the same time, the law prevented him from using his own assets to pay for lawyers, the judge said.“The consequence was that no barrister of remotely appropriate experience and ability had been prepared to take on the case from any of the . . . chambers that the appellant’s solicitors had contacted.”
The judge had suggested that junior counsel might take the case but Mr Versfeld pointed out that it would run contrary to the Bar’s code of conduct for a barrister to accept instructions in a case for which he or she lacked experience. An anonymity order protecting the man’s identity was made in the interests of his personal safety.
The man’s original lawyers at his trial – where he was convicted of two drug-related offences – were unable (through no fault of his) to continue with the confiscation hearing.
The offender, who received a custodial sentence from which he was released after serving nine months, paid his original lawyers privately. But when it came to the confiscation hearing he was unable to use his own assets because they were frozen, so he had to apply for legal aid.
The Crown Prosecution Service alleged that P had benefited from his criminal lifestyle to the sum of £4.5 million and in the first instance were seeking to confiscate assets worth £1.5 million.
Mr Versfeld said: “Normally, the same lawyers would continue with the confiscation hearing and would just accept the lower fees because they had already done the main trial. But just to do the confiscation hearing on its own is not viable.” The case highlighted the inadequacy of the funding regulations post October 2005 under the so-called graduated fees scheme (a fixed scale of fees), said Mr Versfeld.
It also exposed the “draconian” provisions of the Proceeds of Crime Act 2002 under which offenders convicted of a drugs-related offence faced having assets seized that could in theory be counted as gained from a “criminal lifestyle”.
“So although this defendant was convicted of offences only involving a few hundred pounds’ worth of cannabis, he found himself at risk of losing £4.5 million worth of assets – with the burden on him to prove that they were not ill-gotten gains. On top of that, he was prohibited from using those assets for his own defence.”
The judge agreed with P’s case and halted the proceedings as an abuse of process. He said: “If P has to rely upon legal aid, there is no prospect of him getting properly qualified counsel.” Mr Versfeld said: “I would expect to see a lot more cases like this, where the issues are complex but funding is insufficient to obtain appropriately experienced counsel.”
Tony McDaid, practice director of No5 Chambers, a set of barristers based in Birmingham, London and Bristol, also gave warning that more cases were likely to be turned away by barristers.
He said: “I have just had to turn away a similar case as I calculate that on the hours of preparation my counsel would have been paid £6.50 per hour. The only option in such cases is for the defendant then to seek to represent himself.”
The Bar operates a “cab rank” principle which means that barristers are meant to take the next case that comes along, if they are free and competent to do it. But they can turn down a case if the rate of pay is not fair and reasonable for the work involved.
The price of justice
— Most barristers are self-employed and are paid per case depending on seniority and specialities
— The highest-paid barristers work in commercial law. Criminal and family law barristers earn the least
— The criminal barrister Michael Mansfield, QC, earned £575 per hour representing Mohamed Al Fayed at the Diana, Princess of Wales, inquests. He has also represented the family of the murdered teenager Stephen Lawrence
— The top 9 per cent of criminal lawyers earn more than £100,000 per year. The average salary is £62,000
— Top Queen’s Counsel can make more than £1 million per year
— Jim Sturman, QC, who represented Harold Shipman’s family at the inquest of the GP, became the first criminal barrister to be paid £1 million from legal aid in one year, earning £1,180,000 in 2004-05
— After recent reforms, criminal barristers carrying out legal aid work now earn significantly less. New rates of pay for a QC start on £91 per hour and £79 for a leading junior
By Frances Gibb, Legal Editor