Examination of Witnesses (Questions 100-119)
MR DAVID
GREEN QC
21 MAY 2008
Q100 Mr Davidson: Explain to me,
how many times have you managed to knock somebody down from £991,000
to £550,000? If I had a garage that did that or a plumber
or anybody else, they submit that amount, even if it was £991,
and you say "Hey, that is a bit much, I will give you £550."
Presumably if your clerk had said "All right, we will take
the money"—it is nothing short of theft, is it?
Mr Green: Mr Davidson, I disagree
there. In a case of the size we have been discussing how do you
value the responsibility that counsel carries, how do you value
his consideration of things that come up literally overnight or
a crisis in the case that needs dealing with? Do you do that simply
by saying that took an hour and you get that? Counsel used to
say under that system, which I completely disavow and we no longer
use, and certainly did not use after September 2006, "These
things need weighting in my fees, this is why I have put in this
bill."
Q101 Mr Davidson: If I go along to
a surgery of mine and nobody turns up, fortunately I do not have
to pay money back, but on the other hand if five immigration cases
come along I do not put in a claim for another £500 or so.
Presumably a man takes on the job and it is a job and finish as
it were, is it not?
Mr Green: I absolutely agree with
you which is, as I say, why I put this new system in place. We
need to know how long a job is going to take, how long a piece
of a job is going to take and say you can have 20 hours for that
and this is what we will pay you, and then we need to know that
they have done 20 hours.
Q102 Mr Davidson: Can I ask the Treasury
or the National Audit Office are there any other departments of
Government that operate on this weighing-up principle, how much
people get paid basis?
Ms Diggle: I would have to look
into that for you, Mr Davidson.
Q103 Mr Davidson: Reading all this
it never occurred to you that maybe that is something that we
might be interested in?
Ms Diggle: Yes, it did.
Q104 Mr Davidson: But you did not
check at all.
Ms Diggle: It is quite a complicated
job to do.
Q105 Mr Davidson: Why is it a complicated
job to do to check whether or not there is any other department
of Government which pays fees to lawyers or anybody else on the
same sort of basis? You could just phone round I would have thought.
Ms Diggle: That would take quite
a long time; there are quite a lot of departments. It is something
that we can start to investigate.
Q106 Mr Davidson: How many departments
of Government employ QCs to take cases to prosecution or something
similar?
Ms Diggle: I do not know, that
is part of what we would have to find out.
Mr Burr: Mr Davidson, we could
quite easily ask our financial auditors who of course audit the
accounts of all Government entities whether they have encountered
anything of this nature and we will do so.
Q107 Mr Davidson: Maybe you could
also give us a note back saying how many departments do employ
QCs at all to fight cases and how many do it on the basis of how
much does the paper weigh and so on.[3]
Mr Green: Mr Davidson, can I emphasise
that this system was something which was around and, frankly,
if one thinks through to defence legal aid, that is all gone.
Defence legal aid is now much more structured, hours are planned
and so forth. It used to be like that prosecuting for many prosecution
authorities, it is not any more so I do not think your worries
need be current.
Q108 Mr Davidson: All the people
that tolerated that system are now presumably in the House of
Lords or occupying higher positions in the civil service.
Mr Green: The systems have gone,
Mr Davidson.
Q109 Mr Davidson: The people that
approved those or accepted those are presumably promoted, which
is usually the way we punish people.
Mr Green: That is how prosecution
authorities and legal aid authorities used to operate but we are
talking five years plus ago.
Q110 Mr Davidson: It is just as well
someone did something about it then. Can I ask you then about
the new fee management system of paying £185 an hour or so
you said.
Mr Green: For silks, yes.
Q111 Mr Davidson: Taking account
of the points that you made earlier on about the complexities
of issues that arise, the unexpected and so on and so forth, has
the profession been prepared to accept that?
Mr Green: I am sorry, I missed
the question.
Q112 Mr Davidson: Has the profession
been prepared to accept this new system; there have been no difficulties
about it with people who in the past were used to milking the
system more and are now on a standard hourly rate?
Mr Green: To be absolutely frank
I had a delegation come to see me from the Bar Council and they
wondered why I had not discussed the introduction of this new
fee system before I did so, and I explained to them this was because
our accounts had been qualified by the National Audit Office,
things had changed and we were now a small independent specialist
prosecution department and we were going to have a new fee system.
I told them that I had designed the new fee system as a poacher
turned gamekeeper.
Q113 Mr Davidson: Am I right in thinking
then that if the National Audit Office had not qualified the accounts
this system might have gone on for some considerable time?
Mr Green: No.
Q114 Mr Davidson: Maybe you can appreciate
the apparent serendipity, that quite often the National Audit
Office investigate something and then lo and behold a change happens,
but we are often told that one had absolutely no connection whatsoever
with the other. Can you appreciate why we find that difficult
to believe?
Mr Green: Mr Davidson, I entirely
agree with you and I have said the reason I changed this was because
the National Audit Office expressed concern and qualified our
first accounts. My priority at the time and the reason I did not
do anything about it before was (1) I did not know it was a problem
until November 2005 and, (2) I was put in this job to set up a
new independent prosecution authority which started with a great
many problems and is now a success story.
Q115 Mr Davidson: Can I clarify what
£185 an hour means in a sense? One of my colleagues very
helpfully pointed out to me that that is the equivalent of £350,000
a year if multiplied up. Is it multiplied up in that way?
Mr Green: No. If you were a silk
and say you were doing a case for RCPO that lasted perhaps 6-8
weeks, say it is a drug importation, the sort of case I used to
do when I was at the Bar, you might do perhaps 250 hours preparation
before and during the case, so you would be paid 250 hours.
Q116 Mr Davidson: Would you have
other work ongoing at the same time?
Mr Green: No, I certainly did
not. You would then finish that case and hope for more work; you
might get it or you might not but you would probably then go on
to another case but it is a period of intensive preparation before
and during the case.
Q117 Mr Davidson: Can I then just
ask about the success of your agency? One of the objectives you
hoped to achieve is recovery of the proceeds of crime.
Mr Green: Yes.
Q118 Mr Davidson: How successful
have you been in that and how much more successful have you been
recently since the changed fee system?
Mr Green: I do not think it has
got anything to do with the fee system at all, it is more to do
with technical problems which I am perfectly happy to explain
if that would assist, but in terms of what we have confiscated
in 2006-07 we confiscated £24,186,000—that is what
we actually got from criminals and paid over to the Home Office.
We then get a bit back which we then plough into growing our asset
forfeiture capability. For 2006-07 we actually smashed our target
which was £22.7 million and we got £24 million; for
2007-08 we had a target of £26 million but we got in £21.5
million. There were specific reasons for that: one is a decline
in very large drugs cases which traditionally have produced a
lot of money for confiscation; secondly, an increasing sophistication
by rich criminals who do things like, as soon as they are convicted
and realise they are looking at confiscation, their wives suddenly
decide to initiate divorce proceedings and they have to have the
family home, that gums up the works and takes time; thirdly, we
were waiting for a particular decision from the House of Lords
which had led to a certain logjam which we have now got. Also,
of course, we can only consider for prosecution cases that are
referred to us for that decision to be made by Revenue and Customs
and by the Serious Organised Crime Agency, so the flow from confiscation
is naturally lumpy, it is not smooth. We have aspirations and
in the longer term I think it quite possible that in a good year
we could actually confiscate more than our actual budget which
would make us the first self-sufficient prosecuting authority.
Q119 Mr Davidson: I was on the Bill
Committee that went over the proceeds of crime legislation. You
mentioned some difficulties in terms of smarter lawyers and so
on and I think we always anticipated this, but in terms of recognising
the difficulties you are encountering and feeding these back in
and then having alterations made to the legislation, are you happy
that that feedback is working adequately and providing you with
the weapons that you need to counter the escalation by the defence
lawyers?
Mr Green: Very definitely, Mr
Davidson. There is a very active community amongst the prosecutors
of asset forfeiture specialists and obviously we put concerns
such as this up to ministers. I am entirely confident that those
concerns are listened to and acted on. As I say, there is a regular
and effective feedback loop on this, we take it very, very seriously.
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