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Sufficient evidence: Crown Office refuse to release details on cases involving dodgy legal aid claims lawyers as Advocate found guilty of legal aid fraud

18 Feb

Increasing numbers of legal aid fraud cases ‘under consideration by Lord Advocate’s prosecutors. FOLLOWING last week’s conviction of Advocate Mark Strachan for actual and attempted fraud against the Legal Aid fund of £49,545 at Edinburgh Sheriff Court after a 10 day jury trial, it has emerged that Scotland’s Crown Office & Procurator Fiscal Service (COPFS) has a further fourteen cases “under consideration” involving additional allegations of legal aid fraud against both members of the public and the legal profession.

Information obtained from the Crown Office under Freedom of Information legislation has revealed that in 2012, one case of legal aid fraud received a “direct measure” fine, while another went to prosecution, ending up in the accused being found guilty and sentenced to a community payback order. A further five reports of cases involving legal aid fraud allegations were indicated as being “under consideration”.

In 2013, one case of legal aid fraud reported to prosecutors was marked “no proceedings”, the Crown Office claiming this was due to “insufficient evidence”. Another case of alleged legal aid fraud received a “direct measure”, with a further twelve cases being marked as “under consideration”.

Crown Office refused to release details on legal aid fraud lawyers. However, while the Crown Office was content to supply information relation to cases of legal aid fraud involving members of the public, COPFS refused to supply information on two cases involving legal aid fraud allegations against solicitors, citing fears that if information was provided it may lead to the identity of the solicitors who were accused of dodgy legal aid claims.

The Crown Office stated in their response: “I can advise you that two of the reports received in 2012 related to solicitors. All of the other reports received since 2012 relate to members of the public. With regard to the outcome of the two reports received relating to solicitors, I am of the view that due to the small number of individuals that this information relates to, there is a substantial risk that the release of the information you have requested would enable these individuals to be identified.”

The Crown Office supplied no information on how much publicly funded legal aid money was alleged to be involved in any of the cases of alleged legal aid fraud reported to prosecutors.

While no statement from the Crown Office has been released in relation to the conviction last week of Mr Strachan, the Scottish Legal Aid Board (SLAB) have issued a Press Release stating:

A jury at the Sheriff Court in Edinburgh has found Mark Strachan, Advocate, guilty of actual and attempted fraud against the Legal Aid fund of £49,545.

A spokesperson for the Scottish Legal Aid Board (SLAB) said: “Today’s verdict in finding Mr Strachan guilty of dishonesty is the culmination of excellent work by the Board’s senior accounts and investigations staff, who first identified the problem. Over the last three years we have worked very closely with both the Crown and Police Scotland on this case. The court decided Mr Strachan deliberately tried to defraud the taxpayer by attempting to be paid for journeys he did not make.”

The spokesperson continued: “The vast majority of solicitors and members of Faculty act with honesty and integrity. However, today’s verdict demonstrates the importance of SLAB’s efforts to prevent fraud or abuse of the legal aid fund, and the serious consequences for anyone attempting to do so.We will now consider what further action may be appropriate in this case.”

During the ten day trial, Strachan (55) had denied falsely claiming travel allowances and mileage fees on 341 instances between March 2006 and November 2010. In evidence, the court heard that Strachan had homes in Aberdeenshire, West Lothian and Edinburgh and that when he was in Aberdeen on business, he would sometimes see a number of people on the same day. He then charged the board the full fee of £100 travel allowance and £108.80 mileage for a 272-mile return journey to the central belt, at 40p a mile, for each person he saw. However, legal aid rules indicate he was entitled to claim only one travel and mileage allowance.

The Crown heard that Strachan was not making the return journey to Linlithgow or Edinburgh every trip, as he claimed, but was staying with his wife, Elaine, at their home in Old Leslie, 30 miles from Aberdeen. Despite denials by Strachan and his wife, Strachan was convicted of actual and attempted fraud for the mileage claims.

Strachan’s defence counsel, Brian McConnachie QC, had told the jury his client was no longer practising as an advocate, but was studying for a degree in oil and gas law at Aberdeen University. Meanwhile the Fiscal Depute, Keith O’Mahony, told Sheriff Kenneth Maciver that Strachan had no previous convictions. The court also heard from the Fiscal Depute that the Faculty of Advocates’ financial section had repaid £4,509, but nothing more had been received by the board since September 2011. The Prosecutor also indicated to  the court the Crown was seeking a confiscation order under the Proceeds of Crime Act.

Deferring sentence until 14 March for reports, Sheriff Maciver told Strachan it had been a serious and significant fraud, adding “The court has to consider not only the scale and nature of the crime, but also the issue of a breach of trust, because as an advocate you are in a special position”. The sheriff went onto warn Strachan: “You must prepare yourself for the possibility the court may require custody.”

Crown Office have history of failing to prosecute solicitors accused of legal aid fraud:

In 2011 it was revealed by Scott Pattison, the Director of Operations for the Crown Office in response to a Freedom of Information request from Diary of Injustice that FOURTEEN lawyers had escaped prosecution for alleged legal aid fraud.id fraud :

FOI Reply_Page1• 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.

The revelations were reported at the time in the Sunday Mail newspaper:

NO CASE TO ANSWER Sunday Mail 17 July 2011FOURTEEN LAWYERS ARE REPORTED TO PROSECUTORS ACCUSED OF FIDDLING LEGAL AID … WHAT’S THE VERDICT ? NO CASE TO ANSWER

Five years .. not one prosecution

Jul 17 2011 Russell Findlay, Sunday Mail

LEGAL aid bosses have reported 14 lawyers to prosecutors for allegedly fiddling a fortune in taxpayers’ cash – but not a single one has been put in the dock.

Eleven suspected fraud cases were marked no proceedings, one lawyer was declared insane, one died and the other is still being considered.

Crown officials did not identify any of the lawyers involved or reveal the scale of their alleged fraud. The revelations were made by Crown Office and Procurator Fiscal Service director of operations Scott Pattison in response to a freedom of information request.

His first reply identified 13 cases reported to the Crown Office since 2005. He later revealed there had been a 14th case. He said: “The Scottish Legal Aid Board did not submit a crime report but were assisted by the police in carrying out further inquiries.”

Mr Pattison added that this case was also marked no proceedings by the procurator fiscal.

Last year, Scottish lawyers were given £155million of taxpayers’ money for legal aid work. Despite public spending cuts biting elsewhere, they have opposed justice secretary Kenny MacAskill’s attempt to reduce legal aid costs.

Legal reform campaigner Peter Cherbi said: “It seems that the Crown Office – which is run by lawyers – has one rule for the legal profession and another for the rest of us. “If you receive taxpayers’ money, you should be open to full public scrutiny.”

And MP Brian Donohoe added: “This is outrageous but hardly surprising given that it’s lawyers regulating lawyers. “We need an independent system of regulation. Until that happens, people will have no confidence.”

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