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Notice of limited consultation exercises on proposed Direction by the Lord Chancellor on funding in certain Proceeds of Crime Act cases

• Letter of consultation
  
• Background / Summary
  
• Timing
• Draft Direction for Consultation

This consultation closed on 19 April 2004.

Dear Consultee,

Notice of limited consultation exercises on proposed Direction by the Lord Chancellor on funding in certain Proceeds of Crime Act cases

Further to my letter and email of 27 February 2004 on proposed amendments to Community Legal Service (Financial) Regulations 2000, I am writing on a related consultation. This is on a proposed direction to be issued by the Lord Chancellor, under section 6(8) of the Access to Justice Act 1999. The direction would make business cases eligible for public funding in actions brought under the Proceeds of Crime Act 2002.

The consultation period will last six weeks, which should give you time to fully consider the issue. As this is a relatively minor change that concerns the professions rather than the general public, we are conducting a limited consultation outside the Code of Practice on Written Consultation. We are contacting The Bar Council, The Law Society and the Legal Aid Practitioners Group. Please send your response to me at the address at the top of this letter by 19 April 2004. Responses may be sent by email at the address given. Unless you express confidentiality in your response, we may make it publicly available under the Open Government Code.

Background / Summary

1. See letter / email of 27 February 2004 for background to the Proceeds of Crime Act 2002 (POCA).
2. Many POCA cases arise as a result of running a business. Either, because a company is being used as a vehicle for criminal activity, or because the defendant claims the assets seized are the assets of a legitimate business activity.
3. Currently all business cases arising out of POCA proceedings, as listed in para 3(1) of Schedule 2 of the Access to Justice Act 1999, fall outside of the scope of the CLS funding scheme. The only way they receive funding at the moment is via an application for exceptional funding, under section 6(8)(b) of the Act.
4. If a defendant is not represented in these proceedings, the courts may stay the proceedings, or discharge the order under which the defendant's assets were frozen. Therefore, if a defendant is refused legal aid - because the case is a business one, which is out of scope of funding - then there is no incentive for him to apply for funding under section 6(8)(b), as without representation the case against him may not succeed.
5. This would undermine the intention of POCA and the impact of the Assets Recovery Agency, which brings proceedings under POCA. It would also be detrimental to the Government's wider fight against crime. Bringing business cases brought under POCA, (i.e. in proceedings listed in para 3(1) of Schedule 2 of the Access to Justice Act 1999) into the scope of the scheme would avoid this problem. It would also have the side benefit of speeding up the administrative process, as the s.6(8)(b) procedure would be avoided.

Timing

Subject to the responses from the consultation, and final Ministerial approval, we wish to introduce the direction as soon as possible. We will require your response to be submitted to us by 19 April 2004. A copy of this letter is being sent to the Bar Council, the Law Society and the Legal Aid Practitioners Group.

Yours sincerely,

 

 

Michael Tant

Public Legal Services Division

Draft Direction for consultation - Lord Chancellor's Direction on Funding in Certain Proceeds of Crime Act Cases

1. This is a direction by the Lord Chancellor under Section 6(8) of the Access to Justice Act 1999 ("The Act"). It authorises the Legal Services Commission ("the Commission") to fund in specified circumstances services generally excluded from the scope of the Community Legal Service Fund by Schedule 2 of the Act.
2. The Lord Chancellor authorises the Commission to fund services on behalf of a defendant in Proceeds of Crime Act 2002 proceedings of the type listed in paragraph 3 of Schedule 2 of the Act, despite the fact that the provision of those services may be excluded by reason of paragraph 1(h) of that Schedule.
3. Services funded under this Direction should be funded under Level 7 of the Commission's Funding Code (which covers "such other services as are authorised by specific orders or directions from the Lord Chancellor"). Applications under this Direction remain subject to the relevant regulations under the Act and all relevant criteria in the Code.

 

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