A judge has refused to grant legal aid to a married couple who are accused of various crimes of dishonesty in Montserrat arising from their involvement with a now defunct tobacco company.
Steven Fagen and Marie Carole Lidbetter are charged with four offences relating to Montobacco – two of obtaining services by deception, one of conspiracy to steal and one of theft.
No trial date has been set in this case, as the scheduling of a trial was delayed while the accused pursued financial assistance to fund legal representation.
The legal aid claim came before Montserrat High Court on 19 March and again on 24 April, and Justice Dale Fitzpatrick delivered his final ruling on 5 July.
He said the pair did not meet the two necessary requirements for assistance, which are not having sufficient funds and it being in the interests of justice.
Four charges
In his ruling, Fitzpatrick, an acting high court judge, explained what the court had considered during the hearing.
He said that a four-count indictment filed on 28 July, 2022, detailed four criminal charges against United States-born Steven Fagen and Canada-born Marie Carole Lidbetter.
The first was that Fagen, between 6 May and 31 December, 2012, obtained services by deception in Montserrat, namely the professional services of Roberto Greco.
He was accused of the same, but this time between 1 January, 2013, and 14 January, 2015, in the second charge.
In the third charge, Fagen and Lidbetter are jointly accused of conspiring to steal money from Montobacco between 30 October, 2014, and 6 October, 2017, in Montserrat.
Finally, the pair are charged with stealing US$11,000 from Montobacco between 21 March, 2017, and 15 February, 2018, in Montserrat.
Legal aid process
Fitzpatrick explained that Montserrat does not have any formal legal aid funding that an accused person can apply to for financial assistance.
The process available is for an accused to apply to the Office of the Attorney General for representation. Failing that, they can apply to Montserrat High Court for a funding order.
The couple made an application to the Office of the Attorney General who denied their request, the judge wrote in his ruling.
This was followed by a reference made to the Court of Appeal on whether the failure to provide state funding represents an abuse of process.
It also asked if it is contrary to the right to a fair trial as enshrined in the Montserrat Constitution.
The reference did not resolve the funding issue, Fitzpatrick said, adding: “As such, the accused made application to this court for a funding order.”
Arguments
In his affidavit, Fagen said he and his wife, who have lived in Montserrat since 2012, had been “stripped of all personal assets” by the Crown.
On 7 May, 2019, Montserrat High Court prevented them from being a director of a company or working in management with any company, he said.
This, Fagen claimed, stopped them “from trying to make any type of income”.
He added that they had had their passports, driver’s licenses and identification “seized” since July 26, 2021.
This prevented “all travelling or affording both the opportunity to experience a normal basic human daily existence”, he told the court.
Finally, he said the couple had been “forced to survive on the grace and kindness of family and friends’ charity”.
In the application for legal aid, Fagen said he, his wife and daughter, who are staying at a friend’s house, were given EC$12,500 every five to six weeks from “family charity”.
He said they have no significant assets and outstanding loans estimated at $540,000 – however, no supporting documents were provided to the court.
Access to money
In his ruling, Justice Fitzpatrick looked at the family’s monthly expenses claim which included a $2,000 “stipend contribution to an individual”, and $5,200 to $5,600 for food.
It also listed $1,908 in household utilities, including telephone and internet, $850 for car rental, $645 for school clothes and supplies, and $570 for office supplies and court fees.
The judge said that surface level forensics determine that there are funds available within this budget that could be used for legal fees.
“The food expense claimed is simply unbelievable. Reducing this amount by even 30% would free up about $1,500 per tranche,” he wrote.
“Similarly, there is already $400 available, being the difference between the $850 car lease payment claimed but not paid and the reality of the $450 being spent on transportation.
“The nearly $600 per tranche spent on office supplies and court fees is also unsupportable. It would seem 50% of that figure would be generous, freeing $300 towards legal expense.”
He added that there is also strong evidence that the pair have access to significant family financial resources as they have received more than $600,000 to date.
“Frankly, it does not matter if these funds are available as loans or charity or a mix,” the judge said.
Interests of justice
The judge also spoke of the second requirement for legal aid which is whether it is in the interests of justice for the accused to be given it at the public expense.
Relevant circumstances include the complexity of the case, the nature of the charges, the gravity of the crime, and the severity of the punishment.
Other considerations are the personal characteristics of the accused, their nationality, age, background, lack of education and criminal background.
Fagen is 55, Lidbetter is 58, neither has any physical or mental health issues and both are “confident and strident”, Fitzpatrick wrote.
Fagen testified to having earned “millions” as an entrepreneur operating a liquidation business, while Lidbetter was an entrepreneur with her own business.
They formed and operated Montobacco together, which “speaks to a considerable acumen and level of sophistication”, the judge said.
The couple have represented themselves in nine cases in the past, and the recent criminal charges are not considered complex, he added.
The judge dismissed the accused application for state-funded counsel.
