Why Do We Pay For The Criminals To Have The Best Defence?

The right to be presumed innocent until proven guilty means that the prosecution must attack the defendant and the defendant must, by the very nature of his or her position defend themselves. The case against the defendant may have taken a long time to bring to court. The case must be conducted according to ever increasing numbers of protocols and the associated costs can rocket. Added to these are the costs of the criminal defence team.

Many people question the need for a publicly funded criminal defence. The question is asked by tax payers why their money is being used to help criminals? Questions like these are reasonable when you consider how much pressure public sector spending is under.

The nature of the adversarial criminal system means that a defendant has the right to defend themselves against allegations that might well be false. The prosecution has made mistakes in the past. They do not assume innocence, far from it. It is their job to seek out adequate evidence so that a strong case can be presented. Very often the pressure to bring cases to court is so great that important evidence which could be used to mitigate a defendant is left out.

For this reason it is essential that every case is "tested". This is the job of the criminal defence team. They must challenge the evidence and if it is found lacking, the court must not be allowed to rely on it. This is why the prosecution must be very careful when bringing their case and why they must cover every eventuality. This is also why their costs can mount up in the first place, and again why costs are incurred by the defence checking that all procedures have been complied with.

The confiscation procedure is an area where there is opportunity for poorly prepared cases to be presented. This is based on different presumptions of innocence. Because it takes place after a conviction, the prosecution is allowed to make assumptions. It is allowed to make the sweeping assumption that all money has been obtained illegaly. It is up to the defence to actually prove if this is not the case.

Sometimes the prosecution will make outlandish assumptions that present the defendant with the need to prove where he obtained his wealth. When this happens, it is reasonable that he can be assisted by competent professionals to argue where any legitimate money came from. In this respect the funding needs for criminal defendants are more obvious.

Often also asked is why does the criminal not pay for his own defence? In confiscation proceedings it has already been proved that he is a criminal. However, as noted above these assumptions of guilt extend to all of a defendant's finances that are often remote from the crime he committed. In fraud and crime there is a presumtion of innocence, but it would be wrong to bankrupt a person convicted of one crime for obtaining money legitimately elsewhere.

No system is perfect, but in funding both the prosecution and the defence from independent public funds this hopefully provides a balanced forum for crime to be presented and tested carefully before a person is convicted and punished.


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Mark Jenner is a forensic accountancy expert and a Fellow of the Institute of Chartered Accountants in England and Wales, a Certified Fraud Examiner and has a Masters Degree in Fraud Management. He is a proceeds of crime expert and advises companies on fraud investigation and how best to protect themselves from fraud.