0 The funding of confiscation proceedings is unfair and can lead to counsel refusing cases. But, says Bharat Gupta, solicitor advocates can step in to ensure justice is served


The funding of confiscation proceedings for advocates is usually under the graduated fee scheme and advocates are paid by a fixed fee. The reasoning behind this is that a confiscation order is ancillary to criminal proceedings.



However, confiscation is mostly used in fraud, money laundering and drug trafficking cases. In these circumstances, legal assumptions are made that any property obtained and expenditure incurred in a six-year period before the date of arrest and any property held after conviction is deemed to be criminal property. This usually requires work far greater than the preparation of a criminal trial. This is because the burden is on the defence to rebut the assumptions, and also to prove any available assets and prove their value for an order to be made which could be satisfied by a defendant, and avoids the need for further time in prison due to a default sentence.



This burden results in a great deal of preparation, particularly when confiscation is arrived at via a guilty plea. Many practitioners would find themselves doing far more work for the confiscation proceedings than for the criminal trial.



The position of solicitors is currently better because confiscation proceedings are still paid ex post facto, despite the litigator's fee for Crown Court cases coming into force on 14 January. Confiscation proceedings are not incorporated within the litigator's fee. However, the Legal Services Commission has not changed the funding for confiscation proceedings yet because it does not know how to adopt a fair system. Further reform of the funding of confiscation proceedings is likely to occur in due course.



For advocates the position is far worse because the fixed fee may be all that can be claimed. There is provision for claiming special preparation under the graduated fee scheme, but that is only available where the evidence exceeds 10,000 pages, or there is a novel point of law or complicated factual issue in a case. Confiscation law is now well settled and it is unlikely that special preparation could be successfully claimed in the vast majority of cases. Also, the 10,000-pages exception covers prosecution evidence only. Due to the nature of confiscation proceedings, advocates may have to peruse and digest many pages of evidence which go towards legitimising the property obtained and expenditure incurred for the six-year period up to the date of arrest, which is not covered as prosecution evidence, but emanates from the defendant.



In most cases, the special preparation would have been claimed for the criminal trial itself where the evidence exceeded 10,000 pages and, therefore, claiming it again for confiscation proceedings would not be allowed.



The situation of a legal aid transfer following conviction is even more problematic, especially where the page count falls short of the required 10,000 pages.



As an example of this, on 22 January legal aid was transferred in the case of R v Zykin & Zykin to Veja & Co, my previous firm. The case will be paid under the Criminal Defence Service (Funding) Order 2001, as amended. It involves a conspiracy to steal money from cash machines due to a sophisticated bank fraud, and the laundering of the money outside the jurisdiction using money transfer companies. Guilty pleas were entered by the defendants at Southwark Crown Court and then, following conviction and sentence, the case had to be transferred due to the withdrawal of both solicitors and counsel. The two counsel originally instructed for the Zykins could not continue to act due to professional difficulties and withdrawal of instructions. Veja & Co had, therefore, to find new counsel able to take this case, which had an evidence page count of about 8,000.



Since a new counsel would have to look at all 8,000 pages to become familiar with the case, then deal with the issues relevant for the confiscation proceedings, no counsel was willing to take the case. The simple fact was that counsel would not be adequately remunerated for the work involved under the fixed fee incorporated in the graduated fee scheme. Also, there was no guarantee that counsel would be able to successfully claim special preparation.



The bar code of conduct does not endorse the graduated fee scheme and, therefore, the 'cab rank' rule does not prevent a barrister from refusing instructions in a case, which is a loss-maker. It is accepted that a barrister can spend the time required for preparing the confiscation hearing elsewhere and earn disproportionately more money.



After receiving numerous refusals from chambers, it was decided that an in-house solicitor advocate would prepare the Zykins' case as solicitor and also offer advocacy services as leading solicitor advocate. Another in-house solicitor advocate would also fill the role of lead junior. This would allow the preparation work for counsel to be covered in the ex post facto determination of a solicitor, as long as this is legitimate for the solicitor.



In another case, the counsel instructed for the criminal trial dealt with the initial confiscation hearing, but the Crown appealed the confiscation order and the Court of Appeal sent the case back to the Crown Court for a re-hearing. The counsel instructed did not feel able to represent the client on the issues that would arise in the re-hearing, and therefore withdrew. Fortunately, in this case the same chambers provided another barrister who was able to deal with the confiscation re-hearing. However, the second counsel would only get the fixed fee under the graduated fee scheme and has had to do disproportionately more preparation. This is in a case where the page count of prosecution evidence is about 500 pages. If the page count had been substantially higher, there may well have been an unwillingness to accept the brief.



This kind of situation is an opportunity for solicitor advocates to provide a valuable service, where there is clearly a lack of adequate remuneration and incentive for barristers, and most barristers are unwilling to be briefed. The solicitor advocate can fill this void and build a practice that could rival anything the bar could offer.



The funding of confiscation proceedings for advocates is inequitable and there have been legal challenges before costs judges on the refusal to pay for special preparation. The graduated fee scheme for confiscation proceedings needs to be reformed, and there needs to be a recognition that in some cases the work involved in confiscation proceedings could substantially outweigh the work done for the criminal trial.



At some point the system for paying solicitors for preparing a confiscation hearing will change, and it may well be that even the solicitor advocate will not be adequately remunerated for undertaking this work.



However, until that time comes, the in-house option may be the only way for firms to discharge their responsibilities to lay clients where there has been a transfer of legal aid following conviction and the page count of evidence falls short of the 10,000 limit.



Where barristers, for perfectly legitimate financial reasons, will not touch a case, the solicitor advocate can at least ensure that justice is served.



Bharat Kumar Gupta, previously of Veja & Co and now at Stringfellow & Co, was leading solicitor advocate for the Zykins