The Case For Criminal Defence - Why We Really Do Need It
We Must Remain Strong
It is sometimes hard to maintain the morals and attitudes that have allowed the Western world to develop into the strong and proud nations they are today - when we see criminals walk away from jail on a technicality and we seem to lay ourselves bare to those who would attack us using terrorism tactics simply because they are jealous of our wealth and freedom.
But we must not lose faith in the justice systems that have allowed our society to prosper, even if continually under attack by those who would have us think differently. We must preserve the balance of the judicial system and never resort to autocratic or dictatorial means to solve the problems of crime.
Most will agree with this, yet our justice system is very much under threat. By reducing the budgets available for the criminal defense we are jeopardizing the balance of the very judicial system. Very often these reductions in budget can have an adverse effect on costs being incurred in a typical case.
The Case for Funding Criminal Defense
Criminal defense is pitted against the authorities in a fight that is refereed by the courts -
the whole judicial system is indeed highly adversarial - under controlled conditions with strict rules to follow. The criminal regulators and prosecutors must be policed by a credible
criminal defense system to ensure that they do not ride roughshod
unfairly over the procedures used to bring criminals to book, some who may not be guilty, or have the degree of guilt their accusers say. The two
sides must be evenly matched so that the truth is given the best chance to emerge.
The Proceeds of Crime Act 2002 in the UK ("POCA") provides an example of laws that can easily lead to the wrong result if the criminal defence team is not allowed to mount an adequately prepared response to the case. If somebody has been convicted of a crime they must serve a sentence proportionate to that crime- that goes without saying. POCA adds an extra element of confiscation - so no longer can a criminal rob a bank, serve his sentence in jail and then be released a rich man! Confiscation is intended to stop crime paying - to take away the wealth of the serious and organised criminals.
POCA allows for a convicted person to be presumed to have a criminal life style. The Crown will apply for confiscation of everything the criminal owns - plus a lot more besides! They need not always be specific even - often claiming there are hidden assets with little reason. This needs to be challenged by the defendant's advisers. A forensic accountant is often used to provide a clear understanding of these financial aspects of a case.
Sometimes it is difficult to find accounting evidence to mount the challenge, because the Legal Services Commission will not fund forensic accountants fully. In such a case a person can be ordered to pay back more than he stole, more than even he possesses. If he can't he may be given substantial additional custodial time!
It is the forensic accountant under threat at the moment, from swinging government cutbacks as a result of attempting to deal with the recent global financial distress. But the rest of the criminal defense team have been similarly targeted in the past - and are also going through the same pressures now again - the danger is the whole criminal defense process will weaken and we will find ourselves slipping away from the high moral standpoint our society has been able to take over the centuries!
Reduction in budgets can be costly!
Reducing budgets leads to problems that can be even more costly. For example, having a specialist explain aspects of a case to the court can save lengthy arguments between the prosecution and defense that do not understand the complexities of the issues.
Criminal defense cannot be dealt with in part, it must be all or nothing. It is not fair to allow the prosecution as much time as they like, with associated resources, and then limit the defense response by hurrying the matter through or refusing to pay a competent lawyer to represent the accused.
Getting the balance right with limited resources will always be hard, but so long as the system is adversarial in nature it would seem fair if these resources were evenly distributed between both sides.