A lack of admissible credibility – Justice Secretary Kenny MacAskill defended former Lord Advocate Elish Angiolini’s decision not to prosecute lawyers for legal aid fraud running into millions. There are calls for an independent investigation into why Scotland’s Crown Office & Procurator Fiscal Service under the term of now former Lord Advocate, now Dame Elish Angiolini DBE QC, refused to prosecute a total of fourteen solicitors for what are alleged to be frauds collectively totalling millions of pounds of publicly funded legal aid after an investigation by Scots law journalist Peter Cherbi revealed prosecutors had claimed in each case there was “a lack of admissible evidence” for prosecutions to go ahead. The Crown Office refusal to prosecute any of the accused legal aid crooks has been backed by Justice Secretary Kenny MacAskill, who is also a lawyer. In a remarkable show of arrogance, the Justice Secretary told a worried msp if he was concerned about it, he should fill in a consumer feedback form on the Crown Office’s website.
Earlier revelations in the scandal, featured on the popular Scots law blog Diary of Injustice revealed one of the solicitors accused of legal aid fraud was married to a member of staff at the Crown Office, thought to be a Procurator Fiscal. The solicitor linked to the PF also escaped a criminal prosecution over “a lack of admissible evidence” and alarmingly, it was revealed the Crown Office kept secret the details of the relationship between one of the accused & one of their own from the Scottish Legal Aid Board.
The investigation is reported by Diary of Injustice as follows :
Justice Secretary’s discredited defence for Crown Office in 14 legal aid fraud scandals as links between accused lawyers & Scots crime agencies emerge A lack of admissible evidence, fourteen times? Justice Secretary MacAskill defends refusal to prosecute legal aid fraudsters. WHEN SCOTLAND’S JUSTICE SECRETARY has to rely on the ‘grubby’ defence of “a lack of admissible evidence” to support the actions of his own prosecutors who refused to prosecute AN ENTIRE CLASS OF CRIME spanning SIX YEARS involving legal colleagues accused of systematic fraud running into millions of pounds of public funds, you just know there’s something rotten in the justice system.
And so, amid revelations earlier this week where a solicitor suspected of legal aid fraud by the Scottish Legal Aid Board (SLAB) who was reported to the Crown Office turned out to be married to a Procurator Fiscal, and was let off the hook with a decision not to prosecute due to “a lack of admissible evidence”, KENNY MACASKILL, Scotland’s Justice Secretary has now told a Holyrood msp he backs the Crown Office refusal to prosecute any of FOURTEEN LAWYERS who swindled MILLIONS OF POUNDS in taxpayer funded legal aid because there wasn't enough evidence in each of the cases, and that just as the Crown Office had said, it was not in the public interest lawyers be hauled before the courts on criminal charges.
The fourteen cases of solicitors suspected of legal aid fraud were reported to the £100-Million-a-year-to-run Crown Office by SLAB since 2005 under the term of former Lord Advocate Dame Elish Angiolini DBE QC yet not one single lawyer was prosecuted. An investigation by Diary of Injustice backed up by Freedom of Information enquiries revealed the full details of the scandal which can be read here : FOURTEEN lawyers accused of multi-million pound legal aid fraud escape justice as Scotland’s Crown Office fail to prosecute all cases in 5 years
Mr MacAskill, responding to the Scottish Conservative’s Justice Spokesman John Lamont MSP over queries regarding the lack of any prosecutions of legal aid swindlers from the legal profession itself, is so confident SLAB & the Crown Office can handle legal aid crooks who are stealing millions of pounds a year from taxpayers, he dismissed the msp’s concerns, telling Mr Lamont that constituents can fill out an online complaint form located the Crown Office website if they wished to complain about the way the Crown Office refuse to prosecute lawyers.
Replying to msp John Lamont’s enquiries about the legal aid scandals, Mr MacAskill wrote : “The Scottish Legal Aid Board (“The Board”) takes its responsibility to detect fraud and abuse of legal aid very seriously and carries out a wide variety of work to prevent it in the first instance. The Board’s Solicitor and investigations Unit interrogates internal systems and through analysis of applications received and accounts submitted for payment, or paid, identifies irregularities that may point towards potentially fraudulent activities. If the information gathered and further investigation work carried out amplifies concerns, then the Board engages, at an early stage and at a senior level, with the Crown Office and Procurator Fiscal Service (COPFS).”
Mr MacAskill’s bizarre letter continued, supporting the Crown Office decision there wasn't enough evidence to prosecute any of the fourteen cases of lawyers stealing legal aid : “COPFS is responsible for the prosecution of crime in Scotland and acts entirely independently of Government. In any individual case, the Procurator Fiscal will consider any report of criminal activity and make an assessment as to whether to take any action. This decision must be taken in the public interest. the Procurator Fiscal must consider if there is sufficient evidence in the case, weighing a number of factors in coming to a decision on what action would be appropriate. One of these factors is whether there is sufficient corroboration of the essential elements of the alleged crime.”
MacAskill : If you feel the Crown Office closed ranks to protect one of their own and a bunch of lawyers, fill out an online feedback form. The Justice Secretary ended by suggesting anyone with complaints about why the Crown Office were refusing to prosecute lawyers who steal legal aid could fill out an online feedback form at the Crown Office website. Mr MacAskill wrote : “Your constituent has reported particular concerns about the failure of COPFS to prosecute in some individual cases and about the personal circumstances of a specific Procurator Fiscal. In respect of both matters I would draw your constituent’s attention to the robust complaints process operated by COPFS. Details of the process are available using the following link : http://www.copfs.gov.uk/Contacts/CustomerFeedbackMakeComp”
SLAB now claim the Crown Office failed to tell them a solicitor accused of legal aid fraud was married to one of their own. However, Mr MacAskill’s claims the Crown Office were working to combat legal aid fraud have been seriously discredited today after a flurry of communications from the Scottish Legal Aid Board confirmed the Crown Office DELIBERATELY WITHHELD information from SLAB that one of the solicitors they had investigated for legal aid fraud and had subsequently reported to the Crown Office for a criminal prosecution, was married to a member of the Crown Office. A Scottish Legal Aid Board official told this reporter : “We can confirm that … we do not hold any information (supplied to us by the Crown or otherwise) which indicates that any of the solicitors reported by us to the Crown was married to a PF.”
A legal observer commenting on the growing scandal said : “It is of considerable concern the Crown Office failed to inform the Scottish Legal Aid Board there was a marital relationship between the solicitor reported to them for criminal offences involving legal aid fraud, and a member of the Crown Office own staff. This relationship posed a serious conflict of interest for the Crown Office which could have potentially compromised any criminal investigation against the accused whom we now know was not prosecuted due to the wonders of a lack of admissible evidence. The Legal Aid Board should have been told from the outset.”
Legal insiders have also revealed a lawyer who stole millions in legal aid was married to a Police Officer in training when he was reported to the Crown Office. Even worse for the Justice Secretary, a senior legal insider has now revealed another of the solicitors accused of legal aid fraud, who was found to have stole millions of pounds from taxpayers was married to a Police Officer in training. The wife of the legal aid fraudster was allegedly due to pass out of Tulliallan Police College around the same time her lawyer husband committed suicide by standing in front of a train after his law firm had just been raided by the authorities in connection with a huge fraud inquiry. More on these latest developments will be reported in a future article investigating links between accused lawyers and Scotland’s crime agencies.
A legal insider close to the Scottish Legal Aid Board rubbished the Justice Secretary’s letter to the Scottish Conservative’s Mr Lamont on the legal aid fraud prosecution scandal. He said : “Mr MacAskill knows very well the Scottish Legal Aid Board are trying to do their job by investigating suspicious legal aid claims, however every time a solicitor finds out they are under investigation or are accused of irregularities, the Legal Defence Union step in to argue their case, delay or obstruct the investigation, and prevent any report being made to the Crown Office.”
He continued : “In the case of Niels Lockhart, Mr MacAskill and the Scottish Government were well aware both the Legal Defence Union & Law Society of Scotland delayed the case for four years to prevent SLAB’s S31 complaint relating to Niels Lockhart going ahead to a full hearing at the Law Society and any subsequent report which may have been sent to Scottish Solicitors Discipline Tribunal or the Crown Office.”
“Officials from the Legal Defence Union intentionally delayed matters with lengthy correspondence and the Law Society of Scotland deliberately prolonged their investigation of SLAB’s Section 31 Complaint against Mr Lockhart by passing the complaint file round three different reporters, one of whom had dealings with Mr Lockhart directly, another who apparently refused to write the report although it was claimed the request was lost in paperwork, and the third finally finishing the report in the knowledge the LDU had brokered a deal where SLAB would drop its complaint to the Law Society and not ask the Crown Office to prosecute.”
He ended by saying : “I think the Justice Secretary has not been entirely forthcoming in his response to the msp and if Mr MacAskill claims he or his department knew nothing of these matters, he is not a very capable Minister nor is the Scottish Government capable, or, it appears, willing to protect the legal aid budget from fraudulent claims made by members of the Scottish legal profession.”
A senior legal figure who spoke to Diary of Injustice earlier in the week over the revelations one of the accused legal aid fraudsters was married to a Procurator Fiscal, also criticised Mr MacAskill’s claims the Crown Office were acting in the public interest by not prosecuting the solicitors accused of legal aid fraud.
He said : “If the Justice Secretary feels the Crown Office acted responsibly or impartially in refusing to prosecute all fourteen cases involving solicitors accused of legal aid fraud who were the subject of lengthy and costly investigations by the Scottish Legal Aid Board, he is living in a world of his own.”
He continued : Clearly the Crown Office are unwilling to prosecute solicitors for legal aid fraud. I do not believe the Crown Office are sufficiently independent to investigate cases where the accused is linked to one of their own. The reason for failing to take the case to court on a lack of admissible evidence will be viewed by most plain speaking people as a stitch-up.”
He concluded : “Perhaps Mr MacAskill should take his own advice, go fill out the online feedback format himself and see how far he gets. What an utterly useless suggestion coming from a Minister from the Scottish Government.”
John Lamont MSP (Scottish Conservative). Member of the Scottish Parliament's Justice Committee, John Lamont MSP commented on the mushrooming legal aid fraud scandal. He said : “The legal aid budget is one of the largest components of the Scotland’s justice budget. Given the current pressures on the justice budget in general and the legal aid budget in particular, it is vital that every penny is spent properly. Therefore there must be stringent procedures in place to look out for instances of fraud and to deal robustly with those who engage in it.”
Mr Lamont continued : “Any suggestion of impropriety or fraud must be treated very seriously indeed. Not only does this behaviour take valuable resources away from those who really need it, but it also undermines the integrity of the legal profession in general.”
From this reporter’s own observations on this growing scandal, there is now little doubt this issue must go before the Scottish Parliament, with officials from both the Crown Office & Scottish Legal Aid Board called in to be questioned on why solicitors are escaping criminal prosecution for legal aid fraud costing taxpayers millions of pounds.
BACKGROUND : LEGAL AID FRAUDSTER SOLICITORS PROTECTED BY CROWN OFFICE REFUSAL TO PROSECUTE
A Crown Office FOI response to Diary of Injustice revealed : Since the start of 2005, SLAB has submitted nine reports to Crown Office alleging criminal offences by a total of thirteen solicitors. One report related to a firm of five solicitors; The allegations relating to eleven of these solicitors were marked for no action on the basis of an insufficiency of evidence. This related to seven separate reports (for which Crown Counsel’s Instructions were obtained in three); A report relating to one of the eleven solicitors referred to above was referred to the Civil Recovery Unit for their consideration; One solicitor died before criminal proceedings were commenced; One solicitor was placed on indictment for Sheriff and Jury proceedings for fraud. That solicitor entered a preliminary plea in bar of trial on the grounds of insanity which was sustained by the Court. In light of that decision, the case was deserted pro loco et tempore; and in relation to the final solicitor, the matter remains under consideration (this final case also resulted in a decision not to prosecute).
Crown Office admitted additional lawyers escaped prosecutions over legal aid frauds. A further admission on lawyers referred by the Scottish Legal Aid Board over legal aid irregularities was made from the Crown Office relating to an additional case which had not been initially disclosed to Diary of Injustice. The admission contained details of yet another lawyer accused of allegations of a criminal nature, stating : SLAB made allegations of a criminal nature against a solicitor and sought preliminary advice from Crown Office. SLAB did not submit a crime report but were assisted by the police in carrying out further enquiries. A report was thereafter submitted by the police to the local Procurator Fiscal rather than Crown Office. The case was marked for no proceedings by the Procurator Fiscal.
NIELS LOCKHART : SECRET LDU-LAW SOCIETY-SLAB DEAL ENSURED NO PROSECUTION
Sunday Mail exposed Niels Lockhart’s £600K legal aid claims in two years and accusations over legal aid fiddling. From key evidence involving the Niels Lockhart case passed to Diary of Injustice and verified by Freedom of Information disclosures from the Scottish Legal Aid Board, I revealed earlier in April of this year how the Legal Defence Union ensured solicitor Niels Lockhart, who had already claimed SIX HUNDRED THOUSAND POUNDS of legal aid over two years would be allowed to continue working as a lawyer without any further investigations over inflated legal aid claims on the public purse : One law for lawyers : Secret Report reveals Legal Aid Board, Law Society & Legal Defence Union ‘cosy relationship’ in Lockhart case On 5 June 2005 the Scottish Legal Aid Board sent a report to the Law Society of Scotland in terms of S32 of the Legal Aid (Scotland) Act 1986 against the sole practitioner firm of Niels S Lockhart, 71 King Street, Kilmarnock. The secret report, obtained under Freedom of Information laws, can be downloaded here : SCOTTISH LEGAL AID BOARD S31 COMPLAINT REPORT TO THE LAW SOCIETY OF SCOTLAND : NIELS S LOCKHART (pdf)
SLAB’s report was heavy on accusations yet achieved little, as did their complaint to the Law Society. The Scottish Legal Aid Board presented its report & complaint to the Law Society of Scotland on the 5th June 2006 but had to wait until a stunning FOUR YEARS until August 2010 before the Law Society even got round to sending SLAB a copy of the Law Society investigator’s report, which recommended that 11 out of 12 of SLAB’s complaints were “made out” and also recommended that the Law Society exercise its powers to exclude Niels Lockhart from giving advice & assistance to or from acting for a person to whom legal aid is made available.
Secret deals struck between the Law Society, Legal Defence Union & Scottish Legal Aid Board behind closed doors ensured lawyers suspected of legal aid fraud were never prosecuted. In October 2010, Mr Lockhart’s legal representative James McCann of the Legal Defence Union approached SLAB with a offer Mr Lockhart would withdraw fully from providing legal aid if SLAB’s S31 complaint was withdrawn. A Minute of Agreement was drafter and agreed with Niels Lockhart & the Legal Defence Union outlining the voluntary and irrevocable withdrawal by Mr Lockhart and the firm from the provision of all firms of legal assistance funded by legal aid. A letter disclosed by the Scottish Legal Aid Board in response to a Freedom of Information request revealed what happened : “In November 2010 SLAB advised the Law Society of Scotland that they had negotiated with Mr Lockhart his voluntary removal from the provision of legal assistance with effect from 1 November 2010 and acknowledged that the Society had separately received information from Mr Lockhart signalling his intention to withdraw from provision of all types of legal assistance. In the light of this, we sought to know from them whether they accepted SLAB’s withdrawal of the S31 complaint against Mr Lockhart. In December 2010 the Law Society wrote to SLAB advising that they had accepted SLAB’s withdrawal of the complaint and that they were closing their file and taking no further action.”
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