The concept wealthy defendants ought to obtain authorized support to fund their defence prices in felony circumstances has lengthy been an entire anathema to many legal professionals, and to most of the people. 

Brian Swan

In 2013, the lord chief justice Lord Decide (pictured under) informed the Lords Structure Committee: ‘We’re speaking about individuals with large cash. One of many issues that’s fully daft is the place any person perceived to have large cash is charged, there may be nearly at all times an software to the courtroom to forestall him dissipating his property. Very smart, however one of many situations which is at all times sought and granted contains the dissipation of property by paying for his personal authorized advisers.’ 

He added: ‘There must be an order which says a lot of those property can be utilized for the needs of your defence. That’s the reply. That’s not very tough.’

Lord Judge

Seven years on and the Legislation Fee lastly pursued the concept – partially, due to a long-running marketing campaign by the Night Commonplace. Final September, it printed a 744-page session doc, Confiscation of the proceeds of crime after conviction, which proposes a complete overhaul of the present system. As a measure of the size of the problem, the worth of excellent confiscation orders in 2019 was greater than £2bn.

There are ‘important issues with the regime’, based on the session, which provides: ‘Consideration of reform was well timed, if not overdue.’ The underside line by way of wealthy defendants, whose property are frozen, is that a few of this cash must be used to pay their defence prices moderately than being funded by authorized support.

The fee means that this transformation will ‘save the state from having to produce authorized support to defendants who’ve adequate means to pay authorized charges’ and ‘redress any public notion about the usage of authorized support the place it could appear to be pointless’.

The fee additionally addresses the potential threat of ‘reckless dissipation of restrained property in authorized charges’ which have been frozen pending confiscation. It means that this threat might be prevented by judicial monitoring of the amount of cash which is launched to be able to pay for suspects’ authorized prices. The session concludes: ‘The submission and approval of a prices funds by the choose would defend towards unreasonable dissipation.’

These proposals would search to reverse the place which was applied by the Proceeds of Crime Act 2002 (POCA) in respect of defendants funding their authorized prices with their restrained funds.

Earlier than POCA was enacted, below earlier laws – the Drug Trafficking Act 1994 and the Felony Justice Act 1999 – an individual who was made topic to a restraint order was permitted to fund his case from his restrained funds. The appearance of POCA prohibited a defendant from funding his felony case if he was made topic to a restraint order.

This prohibition was topic to important criticism. As some would say, it was fully at odds with the presumption of innocence. Manifestly, there’s a contradiction between the concept that you’re harmless till confirmed responsible by a courtroom of legislation, whereas on the similar time you can not use your property to contest the fees towards you as a result of the courtroom believes that you’re responsible.

Accordingly, these property must be preserved in order that they are often made topic to a confiscation order as soon as you’re convicted.

The basic change that arrived with POCA served to shift the emphasis on the aim of the confiscation regime which was used, traditionally, to strip a defendant’s ill-gotten beneficial properties. Instead, the brand new focus centred on maximising the restoration of property for the state.

When POCA was launched, a defendant who had funded their case privately (whether or not the defendant was made topic to a restraint order or not) may recuperate all or a few of their prices within the occasion they have been acquitted of all or among the expenses they confronted. Within the occasion {that a} defence prices order was made in favour of a profitable defendant, their authorized prices would then be reimbursed from the general public purse.

This coincided with the long-established precept in all areas of the legislation that prices adopted the occasion. This precept was considerably amended by schedule 7 to the Authorized Support, Sentencing and Punishment of Offenders Act 2012, which fully prevented the restoration of authorized prices by a profitable defendant within the Crown courtroom.

This has since been amended barely so {that a} defendant who was refused authorized support within the Crown courtroom may recuperate authorized prices restricted to authorized support charges below a defence prices order.

The Legislation Fee’s proposed adjustments can be welcomed by the occupation. The adjustments acknowledge that it might create important financial savings for the general public purse in having to supply authorized support funding for circumstances the place defendants have the means to pay their very own prices.

It will additionally redress the battle with the present place, specifically the presumption of innocence, however would nonetheless be sure that the spirit of the confiscation regime is undamaged, which is to strip a convicted defendant of the proceeds of their crime.

The session closed in December. Attorneys now await the subsequent stage within the course of, coverage growth, earlier than a report is lastly printed. It’s hoped that its conclusions meet legal professionals’ expectations and that what it recommends by way of rectifying the shortcomings of POCA will probably be totally applied by means of subsequent laws. 


Brian Swan is a associate at specialist felony defence agency Stokoe Partnership Solicitors