Gamekeeper turned poacher

We all know only too well the financial pressure that has been applied to legal aid budgets across the board. However, while those of us who have suffered the last round of swingeing Legal Aid Agency (LAA) cuts are still feeling the direct financial pain, even on privately funded cases everyone suffers as a consequence of government spending constraints.

This pressure has manifested itself across the board so that investigating agencies, prosecuting authorities, and the court system itself are creaking under the strain of shrinking resources and trying to cope with the workload. It seems increasingly common for the first trial date to be little more than a guess as cases are delayed by the crown, rescheduled for months or even a year later, or fall out of the list completely.

We have dealt with four prosecutions in the last 12 months that have collapsed either in the weeks before trial, during legal argument at commencement, or, in the largest matter, at half-time. From our experience, the key factors included serving witness statements as expert evidence, or serving an internal investigation report as if it were an independent expert report. This reflects a fundamental lack of knowledge of process.

We have also experienced cases where the main crown witnesses, both professionals, were shown at court to have misrepresented the truth and ended up under investigation themselves. In our view, any real attempt made to check the evidence gathered should have shown up these failings long before the court process began. Additionally, the crown sometimes uses graphics and spreadsheets that look pretty but are misleading, or simply do not add up.

Short notice

Delays caused by the LAA are so common that we receive instructions just weeks before trial. This means there is inadequate time to consider evidence and no time to make further enquiry.

Concerns also exist about the usefulness of case statements written by the local criminal investigation department as summaries of evidence. This may be accepted procedure, but in fraud cases these documents tend to amplify the lack of knowledge the police, and even the Crown Prosecution Service(CPS), have as to the issues in the case, rather than provide a useful summary to assist the court.

Finally, we are seeing a growing reluctance to instruct us early, quite possibly because of the mounting difficulties posed by the LAA in agreeing the scope and hours of our engagement.

The half-time dismissal was a nine-handed HMRC tax evasion case involving QCs, juniors, law firms, experts, and a panoply of HMRC officers and lawyers. Although this case failure cost millions, it did not make the headlines, while the cost to the taxpayer was far more than the alleged tax evasion that HMRC could easily have sought to recover through civil means, and with more prospect of success.

It is hard to generalise the reasons for such failures. I could try to claim it was only our brilliant analytical work that caused cases to collapse. In reality, however, we believe the most common cause is poor case preparation by the crown that we then assisted in exposing.

Immense pressure

This is a consequence of the immense pressure on the inadequate resources of the CPS, HMRC, and the police, which results in inexperienced and overstretched officers and lawyers not investigating fully, reaching conclusions on insufficient evidence, and lacking adequate time to review and sift out the hopeless cases when deciding to prosecute.

From a criminal practitioner’s standpoint, it is possible that such failings may assist your clients. However, frustration and delay by the prosecution means it may be some time before applications can be made and directions sought. Meanwhile, your clients are directly affected. I would suggest that, despite the difficulties outlined above, early instructions are vital so that we can bring our extensive experience and knowledge to bear and identify real problems in the crown case. In doing this, we understand it is important that we help to shape case strategy and exploit evidential weaknesses to provide the best chance of acquittal, or a realistic confiscation order. SJ

Gavin Cunningham is a former investigator for the Serious Fraud Officer and now head of forensic services at Menzies