A defendant has escaped confiscation proceedings because she was unable to find an advocate willing to accept the legal aid rate to represent her. The court’s decision, upheld in the Court of Appeal, will fuel an ongoing dispute over the levels of legal aid fees.

The defendant in the case, Susan Jane Campbell, pleaded guilty in February 2008 to one count of money laundering involving a sum of £236,000. By the time of her confiscation hearing in October, her trial advocate had left the independent bar and her solicitors were unable to find a suitably qualified replacement willing to take the case.

Under the graduated fee structure, counsel would have received a fixed daily rate of £178.25 with no funding for preparation, which Judge Heath estimated would have taken some 80 hours. He said Campbell could not have a fair trial without representation, stayed the proceedings and made no confiscation order for the sum.

The Ministry of Justice told the Court of Appeal that it had established a working group to explore proposals for a revised fee scheme to allow additional funding in ‘the small number of exceptional confiscation cases that cause difficulties’, and will consult professional bodies in the next few weeks. However, Lord Justice Hooper said that ‘the fact that in the future an adequately funded advocate may be available was no justification’.

In another embarrassment to prosecutors, the High Court last week ticked off the Crown Prosecution Service for altering charges at a late stage. The court criticised the CPS for its attitude that it can ‘assume to itself the way in which a proceeding will be conducted’. It upheld a magistrates’ court’s decision to refuse a last-minute amendment to a charge that would have denied the defendant a jury trial.

The court said the CPS ‘should consider long and hard whether or not it can carry on the assumption that some of its representatives may have’, namely that it can simply assume that at whatever stage of the proceedings before the magistrates it can, virtually as of right, substitute a lesser charge.’