Wednesday, February 10, 2010

Defending terrorists

There's been a kerfuffle this week about the Government spending $10 million on defending convicted terrorists. The gist of the complaint is that the people in question didn't qualify for Legal Aid, and even if they did, the defense they got involved QCs and was way over and above what Legal Aid would have been able to provide.

So there's a big hoo-har about spending tax-payer money on criminals blah blah blah. I can't help thinking they've missed the point. The question is not whether the criminals deserved this defense, the question is why the Government felt the need to provide it. Terrorism is an international issue, and combatting it is fraught with risks of persecution and loss of personal freedom. It is important for a Labor Government to be seen to be only convicting people who represent a genuine threat. This alone, however, doesn't really explain why they felt they needed to provide literally the best defense money can buy.

I am now going to move into wild speculation - could it be that the Government has little faith in the AFP to bring just cases against people? They haven't exactly had a good track record, and rather than face another humiliation, the Government may have decided to pay someone else to keep the AFP in check.

I have no evidence for this, but if I was on the Senate Estimates Committee, that's the question I'd be asking - who was the Government protecting from whom, and why?


  1. I think I'm less cynical than you! :)

    I can't get to the aph website (thanks, Anonymous!) to see what the accusations and responses actually are - to check figures, see what is said about the entitlement to legal aid, etc. However, I can say this, which is at something of a general level.

    Legal Aid fee scales can be found

    That reveals that the per day cost of a trial in the Supreme Court (excluding the first day, which is more expensive) at legal aid rates for the trial alone would have been:
    Silk: $1612.00
    Junior counsel: $988.00
    Instructing solicitor: $650.00

    So if each defendant had one of each of those (and they quite possibly had two solicitors each, btw), that would be 3250 per day of the trial.

    The trial took 170 days, according to contemporaneous news reports. That's $552 500 per defendant for the trial at legal aid rates and assuming the minimum number of legal practitioners. Adding on another solicitor for each defendant adds on another $110 500.

    On top of that, you have preparation costs (including conferences with clients and witnesses), which for a trial of this sort (ie length and complexity) would be enormous - easily another couple of hundred thousand per defendant - and the costs of showing up to court to argue preliminary matters (although those may have been included in the 170 days, I'm not sure).

    On top of that, there are always other costs involved in litigation (although in criminal matters, these are largely borne by the prosecution) - but disbursements can add up.

    That brings us pretty close to a million per defendant.

    It is possible that a premium may have been paid over and above the legal aid rates. I think that's fairly reasonable, especially if you want to attract people who may normally charge more than the legal aid rates, and who would therefore potentially be giving up higher paid work in order to do this trial. But I would like to point out that the premium would be less than 100% of the rates (since a premium of approximately 100% would mean that the lawyers only got paid for the trial), and even if you double the legal aid rates, it's not all that much to pay a legal practitioner, who then has to take GST out and overheads before they can call it income.

    As for why it wasn't paid by legal aid, and whether these defendants would have been eligible for legal aid? Eligibility first: Few people have a spare $1 million lying around. I doubt these defendants did. So even if they started out ineligible for legal aid, they would have become eligible for it pretty quickly as their assets got eaten up by legal fees. And there are good reasons to have some other body pay it, other than legal aid: legal aid gets a set amount of funding each year. Other bodies have more discretionary funding. It may be entirely appropriate that large special expenditures that might normally be covered by legal aid be covered by another fund, so that legal aid can continue to fund more usual cases.

    And finally - but by no means least importantly - should we be giving top-notch legal representation to people charged with terrorism offences? You bet! The Dietrich principle makes that clear. Essentially, that says that the court should not let a trial proceed if the court thinks the trial will be unfair. One indication of unfairness is inadequate legal representation. The Sydney terrorism trial was always going to be complex - the legislation was new, the case was enormous. In order to ensure that the trial was as fair as possible, we, the community, needed to ensure that the defendants had good legal representation.

  2. Oh yikes, sorry for the essay! I have a problem with noticing how long a comment is when it's in a little comment box, and even the preview had a scroll bar.

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  4. Stress not about the essay!

    Funny that you should say they deserve it - I was actually arguing at lunch time today that all defendants should have as much to spend on their defense as the government spends on their prosecution. I utterly agree.

    Would Legal Aid have provided more than 3 lawyers each? I ask this out of curiosity, not because I think the wrong thing was done here.

    In the end, I guess my point was, if there is a question to be answered, it's not about why these people got the money, it's that if there was anything spent above and beyond - why? There may be no question to answer at all, but if there is, they are SO asking the wrong one!

  5. Short answer to whether Legal Aid would have provided more than three lawyers: I'm not sure what is normal, and the answer is probably "it depends", but I can imagine that there would be a pretty strong argument in a case like this that a Legal Aid grant should cover more than three lawyers, and so there would be a pretty strong chance that (if Legal Aid were covering the costs) the grant would cover more than three lawyers.

    Re equivalence: I agree, but keep in mind that direct equivalence in a case like this is not straightforward. My guess is that the cost of the prosecution would have been more than the cost per defendant, but less than the total cost for all of the defendants. However, the fact that the defendants were tried together would have represented significant cost savings for the prosecution (not so much for the defendants, as each has a right to be separately represented), and that also has to be taken into account.

    All in all, I agree with you that if more money than would be usual was spent on these particular defendants, we should be asking questions. However, my back-of-the-envelope calculations suggest that we're probably in the realm of what would be expected for a trial of this length.

    It will be interesting to see how the government actually answers (or has answered), especially if they provide a breakdown of cost. Once the aph site is back, we might be able to take a look.

  6. Good point re: single prosecution/multiple defendants. I ran into major objections to the concept, so I didn't get to thinking about the details.

    I also agree it would be interesting to know how the Government has responded, and I accept that there may just be no questions to answer. I continue to be stunned that people think we shouldn't be spending money on defending people in our justice system though.