Examination of Witnesses (Questions 32-39)
22 JUNE 2004
RACHEL LIPSCOMB,
CINDY BARNETT,
SID BRIGHTON
AND NEIL
CLARKE
Chairman: Welcome, Ms Lipscomb and Ms
Barnett from the Magistrates' Association and Mr Brighton and
Mr Clarke from the Justices' Clerks' Society. Almost all of you
we have seen before and we are very glad to see you again.
Q32 Mrs Cryer: I think my question is
directed to the Magistrates' Clerks. I am not sure whether you
were in when I made a declaration but I am a member of the Bradford
bench, although I am on the supplemental list because I am here
all the time. Currently, Clerks are apparently responsible for
granting the majority of criminal legal aid in England and Wales.
Could you briefly explain how the Magistrates' Courts and Justices'
Clerks administer applications for representation orders under
the current system and how much work does this involve? Are people
employed specifically for this purpose?
Mr Clarke: At the present time
the Justices' Clerk is applying the criteria of "interests
of justice", which is based upon the Widgery criteria set
out in the case in the mid-70s by Lord Widgery, the then Lord
Chief Justice. The majority of those cases will be applications
on the day. Most of the people are appearing overnight before
the courts and, therefore, either the Justices' Clerk or the person
he delegates—which would normally be a legal adviser, solicitor
or barrister—would look at the applications and make a decision
on interests of justice grounds. In some of the large court areas
there may be administrative staff that have that delegated function,
but that is much rarer now. Since there was a considerable audit
and review of the practice it has felt safer that lawyers are
making these decisions rather than administrative staff. So there
is not a great tranche of people who would be subject to TUPE
were this to go elsewhere; it is part of the general administration
of the court and works smoothly and, more importantly, quickly
in the determination.
Mr Brighton: I agree with that
entirely. Of course, there is always the fact that if the legal
adviser or the clerk who is dealing with the application is not
minded to grant there is a right of appeal to the magistrate or
to the court of trial in the ultimate interests of justice criteria.
Q33 Mr Cunningham: Why do you consider
that, as a matter of principle, the courts should apply the interests
of justice test?
Mr Clarke: I think that in any
criminal proceeding there is a presumption that the person needs
some assistance in presentation to the court. There is a duty
on the Clerk taking the court to assist the unrepresented person
in presenting their case. To a certain extent, that can be undertaken.
However, where you get to a certain level of complexity or difficulty
with the case that is going to go well beyond what the Clerk can
realistically give full time to within those hearings, and therefore
you need a specialist adviser separate and apart who can concentrate
on those elements of the law that are necessary to advise that
person. Therefore, we would say that rather than grant everybody
legal representation, for a lot of cases it would be unnecessary
and would actually add time—they would have to take instructions—whereas
in the serious cases if there is a separate representation by
a solicitor normally that will enable the proceedings to speed
up. One of the important things to remember is that once somebody
gets access to proper legal advice they can be informed of the
decision they have to make, and increasingly the number of cases
that are pleading guilty or making a clear not guilty plea on
first appearance is increasing as a result of that clear, legal
advice that they are getting at an early stage.
Q34 Mr Cunningham: Does anybody else
want to comment on that?
Ms Barnett: I think what we would
say is that the interests of justice are very obviously the core
business of the court. That is something that is actually picked
up in the paper, saying that it is not the core business of the
court to deal with the control of the legal aid budget, of public
money, and yet it ignores the fact that it is an interests of
justice test that is applied, and we would say that that does
properly remain with the courts rather than elsewhere.
Q35 Mr Cunningham: Could you explain
your concern about conflicts of interest arising if responsibility
for the grant of representation were transferred to solicitors?
Mr Brighton: I think we would
see that there could be a problem; either the solicitor might
be minded to granted legal aid where it was not justified, or,
alternatively, he could take the view that as he is operating
under a contract he has got to ensure that he keeps that contract
and in order to keep the Legal Services Commission happy is, possibly,
more likely to refuse where a court might grant. So there could
be conflicts of interest on both sides: the interests to his client
and the interests to the Legal Services Commission who provide
him with his contract.
Mr Clarke: In relation to the
point made earlier about the difficult case, the complicated case,
where you are on a fixed fee system you want rapid progress through
because you are looking at volume to make profit. It is not as
if there are millions of lawyers queuing up for this work; the
amount of criminal lawyers nowadays has diminished quite significantly.
Therefore, anything that is going to be complex and eat into your
profit is probably easier not to find in the interests of justice
whereas the court's duty can override the personal interest of
the solicitor advising it.
Q36 Mr Cunningham: How could these conflicts
impact on the rights of defendants and on CDS expenditure? Will
there be an impact there?
Mr Clarke: It depends on the way
it goes. One of the things that I found entertaining about the
report was the generosity that the courts have had in granting
legal aid, despite the fact that we have been dong it for a long
time. We have been audited regularly and there is no empirical
data to say that we are ridiculously generous, just a belief that
we are because it is increasing all the time. One of the main
reasons the grant of legal aid increased was that, for people
who were afraid of having to pay a contribution, when the contribution
was removed there was no fear there and, therefore, they quite
happily applied. So I think that if they grant profligately for
profit then the bill will rise; if they feel that they have got
to operate from some unwritten law it could diminish, but I do
not see that there is a guarantee of savings within the system
by giving it to solicitors. I do not see there is a guarantee
of consistency and I certainly do not think that what is, in effect,
a judicial decision should be taken administratively in this way,
and it is likely to damage public confidence. They say now that
between courts there are different percentages of grants; I think
between solicitors you would find significant differences over
a period of time.
Q37 Mr Cunningham: Do you think there
is a fair way of controlling the expenditure?
Mr Clarke: To give it to solicitors
to grant?
Q38 Mr Cunningham: Yes.
Mr Clarke: No. I think it depends
what legal aid and representation orders are about. If they are
about the protection of the individual's rights under the law
and protections under that law then giving it to the people who
are financially involved within it does seem to have a little
bit of a flaw, to somebody looking from the outside. If it is
about saving money and trying to influence the people who are
spending the money then that is a different feast, but we would
hope that representation orders are to do with human rights, the
interests of the individual and justice.
Q39 Mr Cunningham: Anybody else?
Ms Barnett: We do see that there
is a potential danger in that if it is a question of tightening
up or restricting the interests of justice test that would be
relatively easy to do through directions to solicitors who are
already involved in the general criminal contract. That is another
reason why we think it should remain with the courts.
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