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Why Is The Public Funding Of Criminal Defence So Expensive

There is no doubt that we have an adversarial system within our criminal legal framework whereby the defendant has the right to fight to prove the prosecution's allegations are not founded. These allegations may have taken a long time to investigate and prepare in order to present at court. This will mean that the associated costs will subsequently mount up. These costs include defence counsel and expert witnesses needed to fight the prosecution's case.

Many people question the need for a publicly funded criminal defence. They question why tax money should be used to help a criminal potentially escape justice? 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 does not always get it right has history has often shown. They do not assume innocence, far from it. Their job is to pursue the evidence until they find enough to bring a case. Unfortunately, their zeal for bringing a case overshadows the actual facts and exonerating evidence can be overlooked.

This is why it is important for every case to be "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 assumption that any wealth 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. If this occurs, of course it must be fair that he uses good lawyers and experienced forensic accountants to show where his legitimate earnings 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 normal predicate crime cases, the presumption of innocence remains and it would be unfair to bankrupt a person who is falsely accused.

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.

About Author Mark Jenner :

Mark Jenner is a <a href="" target="_blank">forensic accountant</a> 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 advises companies on <a href="" target="_blank">fraud investigation</a> and how best to protect themselves from fraud.

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Article Added on Thursday, November 10, 2011
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