Wednesday, 25 August 2010

"Loophole lawyers"

The Guardian reports about certain "loophole" lawyers who have captured a niche market in defending celebrities accused of motoring offences - see Guardian 25th August 2010 "The Loophole Lawyers who help clients beat motoring charges".  These lawyers do not come cheaply but they are very expert in their field and they carry out very well the duty of the defence lawyer which is to test the case against their client and to expose weaknesses.  The more worrying feature of these cases is that, without such a lawyer, the prosecution evidence is not tested in the same way.  It is also noticeable that, when a "loophole lawyer" is going to appear, the case is frequently handled by a District Judge (Magistrates' Courts).  No doubt this is because points of law are going to be raised but it has always been possible to raise points of law in the Magistrates' Courts irrespective of the composition of the bench.  The bringing in of District Judges may - and I emphasize may - be giving an impression that some magistrates' courts are not being exactly neutral in the handling of these cases.

A further aspect concerns costs where a defendant, who is unable to obtain a legal representation order,  exercises his right to pay for a lawyer albeit at commercial rates.  Can he receive his costs if he "wins" the case?  Currently, the answer is that the costs are payable from central funds.  The last government attempted to restrict such payments to the lower legal aid rates so that the successful defendant might not receive all his costs. The responses to a government consultation on this actually favoured making no change but that was ignored by the Labour government and new regulations were introduced on 31st October 2009.  However, in June 2010, the Law Society successfully challenged the matter in the High Court - see R (Law Society) v Lord Chancellor [2010] EWHC 1406 (Admin).  The court ruled that the Lord Chancellor had tried to achieve objectives which were inconsistent with the purpose for which he was empowered to make regulations in this area.  See also this Parliamentary Briefing Paper.

1 comment:

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