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.”

Admissible Evidence ? Crown Office Prosecutor married to lawyer accused of legal aid fraud, both still working, Legal Aid Board ‘convinced of guilt’

Crown Office refused to prosecute case where Procurator Fiscal was married to a lawyer accused of legal aid fraud. SCOTLAND’S £100-Million-a-year-to-run Crown Office has been forced to admit it REFUSED TO PROSECUTE a criminal case of alleged legal aid fraud against a solicitor who was married to one of its very own top prosecutors DUE TO A LACK OF ADMISSIBLE EVIDENCE during the term of former Lord Advocate now Dame Elish Angiolini DBE QC. The admission came in response to a Freedom of Information request after details of the case, one among a total of FOURTEEN cases of solicitors reported by the Scottish Legal Aid Board (SLAB) to the Crown Office for legal aid irregularities & fraud involving public funds were made available to Diary of Injustice by senior legal figures who claim the Crown Office has been operating a policy of refusing to prosecute legal aid crooks from Scotland’s legal profession because the cases “are too complicated.”

The solicitor, who legal sources have confirmed was “in a marital relationship with a Procurator Fiscal” is still working as a lawyer and is bizarrely still able to claim legal aid, after the Crown Office decided not to prosecute the solicitor concerned because of a lack of admissible evidence. The refusal to prosecute the solicitor partner of the Procurator Fiscal has angered insiders at the Scottish Legal Aid Board who claim they “are convinced of guilt in the case”.

Crown Office were forced to admit alleged legal aid fraudster solicitor is married to a Procurator Fiscal. A response from Scott Pattison, the Deputy Director of Serious Casework for the Crown Office to a Freedom of Information request stated : “I can confirm that one of the solicitors who was reported by SLAB was married to a member of COPFS staff. In that case, in accordance with the practice which I have described above, the matter was reported by a Procurator Fiscal to Crown Counsel for consideration. The member of staff concerned would have had no access to, nor dealings with, the case.” The Crown Office response to the FOI request, asking for information relating to (i) whether any of the solicitors reported to the Scottish Legal Aid Board (SLAB) were in marital relationships with members or officials of the COPFS, (ii) any discussions which took place relating to such cases, and (iii) what was the outcome of those cases, began with an attempt to explain how complaints against members of its own staff are dealt with.

The letter stated : “It might be helpful if I start by explaining the procedures which are followed where there is an allegation of criminality by a close relative of a member of COPFS. When an allegation is made against a member, or close relative of a member, of COPFS a report will be submitted by the investigating authority, in accordance with standard procedure, to COPFS. Thereafter, the matter would be reported by a Procurator Fiscal to Crown Counsel. Crown Counsel are the senior, independent lawyers who take decisions on behalf of the Lord Advocate – ordinarily in the most serious types of case.”

“In cases involving allegations of criminality by members of COPFS staff, or close relatives of members of COPFS staff, Crown Counsel will provide an independent instruction on what, if any, action is appropriate in respect of the allegation.”

However, and in line with the rest of the FOURTEEN CASES of alleged legal aid fraud by solicitors reported to the Crown Office by the Scottish Legal Aid Board over the past SIX YEARS, Mr Pattison confirmed the Crown Office REFUSED TO PROECUTE the lawyer married to one of its own high profile Fiscals, claiming THERE WAS INSUFFICIENT ADMISSABLE EVIDENCE to proceed with a criminal case

He said : ““Having carefully considered the facts and circumstances of this case, Crown Counsel gave an independent instruction that there was insufficient admissible evidence to justify criminal proceedings.”

Crown Office under former Lord Advocate Elish Angiolini refused to prosecute a single case out of 14 solicitors accused of legal aid fraud. The decision by the Crown Office to refuse to prosecute a lawyer married to one of their own prosecutors on reasons there being a lack of admissible evidence has greatly angered senior officials at the Scottish Legal Aid Board who, insiders indicated had been determined to clamp down on solicitors who are potentially ripping off taxpayers to the tune of millions of pounds a year from Scotland’s gigantic £160 MILLION POUND legal aid budget. I reported on the lack of prosecutions of legal aid fraudsters from the legal profession back in July, 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

A legal insider commenting on the latest revelations of links between Crown Office prosecutors & alleged legal aid fraudsters, said : “Given tens of thousands of pounds of public money has been spent on detecting, investigation & reporting legal aid fraud, it would be a big help if the people at the Crown Office who are charged with prosecuting criminals would actually do their job in at least one out of fourteen cases.”

He continued : “Clearly there is something amiss. The Crown Office have prosecuted members of the public for legal aid offences yet in each of the reported cases of legal aid irregularities concerning solicitors, not one has been prosecuted. With the revelation one of the solicitors reported to the Crown Office was in a marital relationship with a high flying Procurator Fiscal, there is an overall impression the Crown Office closed ranks and refused to prosecute because of links to one of their own.”

Since the investigation by Diary of Injustice into abuse of the legal aid system began turning up links between alleged legal aid fraudsters and Crown Office personnel, there have been indications the Crown Office are upset one of its own has now been publicly fingered in a case involving alleged legal aid fraud.

A senior Scottish Government official who has knowledge of discussions on the subject warned Diary of Injustice over the difficulties caused by revelations of links to legal aid fraud and the Crown Office and the lack of prosecutions. Whilst Diary of Injustice has agreed not to publish certain comments given in confidence in an interview, I can report the source did say : “Considering this was all supposed to be kept secret, and the Crown Office were apparently determined to do so at any cost, I’m surprised no one has bothered to ask you where you got your information from.”

Crown Office FOI response refused to release any information on how they came to decision not to prosecute alleged legal aid fraudster linked to one of their own colleagues. SUSPICIOUSLY the Crown Office REFUSED TO DISCLOSE ANY INFORMATION on what discussions had taken place within its realms over the case which led to the Procurator Fiscal’s partner being let off the hook from legal aid fraud charges. The Crown Office response to the FOI request asking for information on discussions over the case stated : “In respect of your second request, I am satisfied that any information relating to the consideration of the evidence in this case, including the recommendations made to Crown Counsel, and the terms of the instruction issued by them, are exempt from disclosure in terms of sections 30(b)(ii), 34(1)(a)(i) and 35(1)(a), (b) and (c).”

“As you will be aware, none of these exemptions are absolute, and I have therefore required to consider, notwithstanding that I am satisfied that they apply, whether the public interest nonetheless favours disclosure of the information. In doing so, I have had regard to the type of question which the Scottish Information Commissioner has recommended that public authorities ask themselves when considering whether the public interest favours disclosure despite the fact that certain exemptions apply.”

“In particular, I consider that it is of the utmost importance that Procurators Fiscal are able to freely and frankly share their analysis of the evidence in a criminal case, and their recommendations in respect of same, with Crown Counsel, who act under the authority of the Lord Advocate, without any such discussions being subject to release to the public. In reaching this view, I have also taken into account that any such recommendation or analysis would necessarily be based on an assessment of the legal position, which in turn is based on the available evidence.”

“I have concluded that witnesses provide evidence in respect of criminal allegations in the expectation that such evidence will not be released, save for within the context of criminal proceedings, with the attendant procedural safeguards. In reaching this view, I have had regard to the comments made by the Scottish Information Commissioner in decision 115/2007. Having considered the circumstances of this particular case, I have come to the conclusion that the public interest falls overwhelmingly in maintaining the exemptions in this instance.”

A senior legal figure who has been given access to details of the case provided to Diary of Injustice described the Crown Office decision not to prosecute as “inconsistent with public claims of the law applying equally to all”.

He said : “Having considered what the Crown Office said, and the fact not one single case out of fourteen of alleged legal aid fraud committed by members of the legal profession was prosecuted, it is clearly in the public interest information on how the Crown Office arrived at its decision not to prosecute in this and the remaining cases be fully disclosed, reported by the media and debated in public.”

He continued : “The public perception in this case, and rightly so, will be that the Crown Office have closed ranks to protect one of their own. There are a great many questions unanswered, for instance whether the married partner who is a PF benefited in any way financially from the alleged legal aid fraud. Clearly there must be an independent investigation into why these cases of alleged legal aid fraud committed by solicitors have resulted in not one single prosecution.”

An msp who has been following revelations of the lack of legal aid fraud prosecutions and has constituents who are affected by some of the solicitors accused of legal aid irregularities told Diary of Injustice : “A lack of admissible evidence. Clearly the public will have watched enough television & read enough newspapers to realise exactly what this means. I doubt many will be fooled by the explanation offered up by the Crown Office.”

He continued : “As for the fourteen cases and not one prosecution. Who would be stupid enough to believe something isn't going on when not one lawyer ends up being charged. It’s preposterous to suggest otherwise. This needs to go before msps for proper scrutiny.”