Solicitors who specialise in defending white-collar fraud charges say they will be unable to afford to undertake such work. At present they can claim an 'enhanced' rate on top of the normal legal aid charge with no upper limit. In practice, they tend to claim about pounds 200 an hour.
In a letter to the Law Society, Lord Mackay said he intended to set a maximum enhanced rate of 100 per cent on top of the normal legal aid fee, currently pounds 54 an hour. From the new highest rate of pounds 108 an hour, the fraud solicitor would be expected to cover all the time spent on the case, support staff costs, expenses and overheads.
David Kirk, of Stephenson Harwood, who is defending one of the accused in the Levitt affair on legal aid, said the new rate would make it 'difficult for firms in London to contemplate acting in these sort of cases'. He added it was highly unlikely his firm would consider doing such work again.
Charles Buckley, of Garstangs, who recently acted for Lord Spens on legal aid, said: 'Nobody minds reforms that are intended to deal with waste, but these cases involve the ultimate in skills and specialisation.'
In one long fraud trial on Teesside, where his firm has been working on legal aid, the photocopying bill amounted to pounds 24,000. The defendants' eight barristers each had 97 thick files of documents.
Mr Buckley said the amount of detail and paperwork involved in another of his cases - defending Duncan Smith, the Wallace Smith banker - meant that no competent firm was likely to come forward at the lower rate. Mr Buckley maintained his client could not be certain of receiving a fair trial. 'I will apply for judicial review and a stay of the criminal proceedings on the grounds that nobody could afford to represent our client,' he said.
Ian and Kevin Maxwell are also receiving legal aid. Ian's solicitor, John Clitheroe of Kingsley Napley, said the Lord Chancellor 'must bear in mind that white-collar crime is a highly specialised form of criminal practice. We have to be able to offer a career structure to people whom we can train to be good enough to meet the resources of the Serious Fraud Office, Inland Revenue, Department of Trade and Industry and Crown Prosecution Service. We have got to have experts in the field.'
The Law Society is to object to the move. Andrew Lockley, head of legal aid, said: 'We'll be pushing very hard for the change not to take place. There is a very important point of principle at issue here. Where the prosecution like the SFO has virtually limitless resources, the defence must be given the same facility.'
A spokesman for the Lord Chancellor's department was unrepentant. 'We don't believe a 100 per cent limit will have an effect on long fraud trials,' he said. 'We believe market forces will operate and sufficient solicitors will come forward to do the work.'
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