Examination of Witnesses (Questions 40-58)
22 JUNE 2004
RACHEL LIPSCOMB,
CINDY BARNETT,
SID BRIGHTON
AND NEIL
CLARKE
Q40 Ross Cranston: The department, of
course, in its consultation paper set out a number of criticisms
and you have touched on some of them, inconsistency, for example,
the increased costs and possibly that the administration at present
is too favourable to defendants. Now, of course, you refuted those
criticisms, and I do not want to ask for a general response to
them, but do you concede any of them? Let me put it that way.
Mr Clarke: I think if we had a
system where I could come here and say that there has never been
a mistake and there has never been a problem in any particular
area of this country, I would only start from lying and work backwards.
What I am saying is that if we look at the audited accounts of
what has happened in the magistrates' courts over a period of
years, the incidence where there has been any serious criticism
of the operation in any area is minimal, and those have been very
quickly corrected. I think it is very easy to say that the courts
are being overly generous, but I do not understand what that means.
If there is a criteria which we operate and that criteria is upheld
on audit then the fact that we are granting more does not mean
it is overly-generous, it means it is right because more people
fall into that criteria. If the Government wants to issue a new
criteria by which we can operate, which is stricter, then that
is another issue, and if they do then give it to another body
it will make the other body look much more efficient than we are.
That has been the pattern of approach to magistrates' courts;
we do not have a power, they give it to somebody else and then
they do it better than we do.
Q41 Ross Cranston: I think you conceded
in your submission that there might be inconsistency between different
courts.
Ms Barnett: The idea of it being
totally consistent would actually be against the proper application
of the interests of justice test. It is not a tick-box, after
all. It talks about the possible loss of livelihood or a custodial
sentence, and that must be, to a certain extent, down to the individual
judgment according to the individual circumstances of the case,
and as each case is different there is going to be a variation.
So I do not think we could ever look for total consistency. One
of the suggestions made was that between different courts there
could be different expectations from local solicitors as to what
was a proper application. That might affect the rates of refusal
and that might look like inconsistency between different courts
but it is not necessarily proof of it.
Q42 Ross Cranston: I see that in paragraph
2. What about one of the main points the Government is making,
which is that the number of representation orders has gone up—it
has shot up—since 2001? Our expert adviser, Professor Cape,
has suggested this might be an artificial result because you are
measuring things differently and amendments are now being counted
as representations and that might explain it. Is that the total
explanation as to why the number has gone up?
Mr Clarke: As I said earlier,
because of the removal of the contribution order, people who were
afraid of having to pay large amounts of money for legal representation
took the choice that they would not do that. When there is no
restriction, when there is no penalty that they can pay for accepting
a representation order, they are much happier to do it. I go back
to the point that if there is an interests of justice criteria
that is being audited and it is being said there is, in the main,
no significant problem with it, it may be that the class of people
that we are getting before us is improving sufficiently to merit
representation orders in a greater percentage. When you look at
the amount of fixed penalty offences that are being created, what
we are getting is, really, a much higher class of individual filtering
through to the courts, so that the percentage of those people
who will attract representation orders under the criteria is going
to, therefore, increase.
Q43 Ross Cranston: It is just that the
number has gone up significantly since 2001.
Mr Clarke: It did not come as
a surprise to us with a means test again.
Mr Brighton: Also, there is the
fact that at the same time the prison population has gone up quite
significantly in that period, therefore more people are under
the threat of imprisonment, therefore more people are eligible
for legal aid under the Widgery criteria, because that is one
of the criteria we need to look at. More serious offences are
being dealt with and there are more government initiatives; the
persistent offender and street crime all bring people into the
category of meriting legal aid if they appear before the courts.
Ms Barnett: We would agree that
there are a number of strands and, as we did point out in our
evidence and I am sorry to repeat it, some of them are fairly
obvious, like government initiatives that have brought more people
through the courts, but the one where it says that the grant of
legal aid is simply becoming too favourable does not seem to be
supported by facts and figures. We do not have specific statistics
to underpin it, and it is very difficult to look at statistics
and try and find out the reasons, but I think we would say that
it is due to a number of factors, some of which have been mentioned.
We think it inevitable, as has also been said, that because there
is not a test more people will apply. What worries us about these
proposals and the reintroduction of a means test is that the calculations
for savings to be made therefore rely on people, in actual fact,
being deterred; people who do now meet the interests of justice
test because they have been granted legal aid being deterred from
applying in the future.
Q44 Ross Cranston: Just to clarify in
my own mind, when did that contribution go in terms of your argument
as to the increase?
Mr Clarke: It was 2001, three
years ago.
Q45 Ross Cranston: Certainly the figures
we have got show a very significant increase after that date,
December 2000. You have mentioned how you do it. To what extent
is there monitoring of your application of the interests of justice
test? Do they come round and ask you how you are doing it and
look at a sample of cases?
Mr Clarke: The Department of Constitutional
Affairs' internal audit will come and sample a number of representation
order applications and check that they are being correctly completed
by the solicitors, and that the person considering them has clearly
identified the grounds on which they have granted those. It is
very difficult for them to actually look behind that to the merits
of those cases, but certainly the administrative operation within
the system is looked at. Also, in each area, the Justices' Clerk
is monitoring the operation because we want consistency within
our own staff in granting. It becomes very apparent: if you have
solicitors seeking out any particular legal adviser you begin
to wonder whether their generosity has increased in the recent
past and you would have a look at the standard of their decisions.
So we do monitor ourselves but there is a formal duty to check
that procedure has been followed.
Q46 Ross Cranston: But you are not checking
individual cases. For example, "threat of imprisonment",
therefore that should have been granted—it is more you are
looking at it statistically, are you?
Mr Clarke: No, the Clerks would
be looking at the individual cases. If legal aid had been granted
where you would not expect it, I would ask my staff to explain
to me why they felt it came within the criteria.
Q47 Ross Cranston: How regularly is the
audit by the DCA done?
Mr Clarke: It has been done less
since contribution orders went because they were more concerned
about us getting the money wrong than they were with the interests
of justice. It used to be every three years, then it went down
to virtually annually but since 2001 I think I have been audited
once.
Q48 Ross Cranston: Can I just ask you
about this notion that solicitors will know more about the circumstances
of their client? I think you refute that but it is the case, is
it not, that they will—especially if they are regular clients,
as is often the case?
Mr Clarke: I think what we are
not refuting is that they will know their clients—some of
them are almost very close friends by the end of the experience
because they meet so regularly. We are not doubting they have
an intimacy with their clients which is greater than ours, but
what we are saying is that what we are trying to do—and
what the system should be doing—is bring an objectivity
to the financial circumstances that may be lost in that closeness,
and there should be evidencing of it rather than an acceptance
of it. If an individual's circumstances change it is disturbing
to report that some of the people we deal with are dishonest and,
therefore, they might not feel obliged to tell the change of circumstances
to their solicitor, who will presume they are going on in the
same happy way that they have before. So we are saying that familiarity
can breed contempt, whereas we bring an objectivity which is essential.
Q49 Ross Cranston: Could you find out
more than the solicitors?
Mr Clarke: It would depend on
the powers given to us. At the moment, when you are looking at
fine enforcement we are only just approaching the stage where
everybody is agreed what would be a good form to use, and we are
nearly going to make it compulsory in a not quite compulsory sort
of way. They talk about the conditional offer, but that has its
own problems because a lot of cases in magistrates' courts are
dealt with in under 14 days, and if that is so the person who
is given a conditional offer will not be so keen to have to fulfil
their obligation to give their means because they have already
had the benefit of it. The gathering of the means was pretty well
disastrous last time; it took forever, it delayed cases and cost
more than it ever collected. We are worried about the delay element
of the case coming through, but retaining the responsibility for
the grant we could certainly do a job on the financial situation
and we cannot see that we would be any worse than solicitors doing
it because they may have a familiarity, but if they do not have
evidencing so that the audit can follow it I do not see they are
in any better position than we are.
Q50 Ross Cranston: I certainly think
there is a great deal in what you say in terms of the cost-benefit
analysis. I do not think that has been properly done. Can I just
ask you, finally, about the claim in the consultation document
that the DCA will be able to bring "modern management tools
to the task"? I do not know whether the implication is that
you do not have those "modern management tools". What
about that argument?
Mr Brighton: We would like to
know what the modern management tools are, then we could comment
on them. I am not sure they have any more management tools than
we have. We have computer systems and all the other management
tools, and I am not really sure what those additional management
tools are.
Mr Clarke: Like everything else,
it sounds so much better if you try and justify it with general
phrases. When you have to actually explain what you mean it becomes
more difficult.
Q51 Ross Cranston: So you are suggesting
they may have the jargon but not the substance?
Mr Clarke: Yes. It is a bit apple
pie-ish.
Ms Barnett: It was suggested to
us that it was purely on money, as opposed to anything else.
Q52 Peter Bottomley: It is reasonably
clear from the helpful submissions that you see the Government
trying, in effect, to save money. Is it roughly right to try to
do it by bringing in this transfer to the means test, or would
it be better just to restrict the number of people who can get
legal aid?
Ms Barnett: I am not sure that
we would say that either is better. It was not meant to be an
accusation. I think the document itself openly accepts that there
is a need to control expenditure, and I think we would accept,
obviously, that there is a very high legal aid budget and it is
increasing—we are not trying to deny that. However, I think
what we have got to focus our worries on is how it is done. If
it is a question of deterring people in any way—either by
tightening up the interests of justice test and deterring them
from applying or simply saying "Sorry, you cannot have it"—then
that is bound to cause difficulty for defendants and, we think,
delay the courts.
Q53 Peter Bottomley: The Government has
given guidance on how the courts can apply the interests of justice
test. Do you think there could be changes or restrictions to that?
Ms Barnett: I think we certainly
foresee that there might be changes or restrictions to that because
it was definitely suggested last year in a previous consultation
paper. We did not quite understand in what way there would be
a restriction, bearing in mind the phraseology of the interests
of justice test, but it certainly worried us that there was one
suggestion—I am not quoting here—that it should definitely
be that the likely effect would be imprisonment. How can one tell
that without knowing all the facts? There was some criticism of
a theoretical sentence as opposed to the actual sentence, which
we thought was unrealistic.
Q54 Peter Bottomley: So it is back to
the details rather than the general words? Could the Justices'
Clerks' Society explain the proposal for certain courts to be
used as pilots to test the impact of using government guidance
on the application of the interests of justice test?
Mr Brighton: What we had in mind
there was that we were aware that the Legal Services Commission
were concerned about the operation of the interests of justice
criteria in magistrates' courts and had made assumptions that
we were granting too many applications. We dispute that but said
that what we would do is work with the Legal Services Commission
to produce some guidance for all magistrates' courts through the
Society on how they would operate the interests of justice test
so that everybody would be operating from the same song sheet,
as it were. That would not fetter the court's discretion to say
that it did or did not meet the interests of justice criteria
but it would more clearly enunciate what those interests were
and what the court should be looking for in considering those
individual tests. We have already drafted something out and submitted
it to the Legal Services Commission and are still working with
them—presumably on the assumption that although this is
a consultation and a draft Bill it is not necessarily going to
mean it will remove the grant of legal aid from the magistrates'
court.
Mr Clarke: It is refining the
criteria so that if there was any doubt in anyone's mind about
the interpretation of it there could be assistance with that which
should bring greater consistency. The main message, as Mr Brighton
has hinted at, is that if they have got a point, make it, in other
words, put up or shut up. We are quite happy to be tested and
have the point established rather than just saying generally "You
are doing it badly because we think you are".
Q55 Peter Bottomley: Can I move on to
the issue of delays? The Government is putting quite a lot of
effort into trying to reduce delays in court. Is this likely to
be a helpful change?
Ms Barnett: I think most definitely
not. We are not suggesting that every single person who appears
before us has to be legally represented. Of course, there are
some very adequate people who appear in court and there are some
very simple matters for them to deal with, but generally speaking
I think it is fair to say, and I think we all agree on this, that
unrepresented defendants can mean that things last longer. It
is essential they understand everything that is going on, and
in some cases they say things that a lawyer would warn them off
saying which might disqualify the bench, if it is something about
a previous arrest or whatever, simply because they do not understand
the system. We see an enormous number of people, and whether or
not they are innocent or whether or not they are guilty a lot
of them are extremely nervous and frightened at the situation,
overcome by the system and would benefit from a little guidance.
If they do not get that then it is going to take longer.
Mr Brighton: That, of course,
does have a cost implication because if you have an unrepresented
defendant who is adamant that he is not guilty and who persists
in that then it lengthens the procedure, it involves prosecution
costs, police costs, witness costs and court costs. If, on the
other hand, he were to be granted legal aid and receive some good
advice which he was prepared to accept that, maybe, a guilty plea
would be more appropriate and that there are benefits he would
receive from that, then that could reduce the overall costs although
increase the costs to the Legal Services Commission, but we cannot
look at their costs in isolation.
Mr Clarke: Depending on the methodology
(I mentioned the conditional offer before and the difficulty that
may arise with that), under the old system once we got to the
stage of having to wait for the details to come through that is
what we did. We are dealing with a group of people that, on occasion,
are not the best organised in their matters. Getting them to court
is regarded by some as an achievement, but getting them to bring
papers with them as well would be like looking for the moon. Therefore
we had great delays waiting for cases to come through when we
had contribution orders merely because we were not allowed to
release the legal aid. It may be compensated by this 14 days but
I think it will be complicated as well, and delays inevitably
will follow.
Q56 Chairman: How comfortable are you
with the suggestion made earlier of some kind of appeal system
to the court in respect of solicitors' decisions, if that is the
way it goes?
Mr Brighton: I think there needs
to be some appeals procedure if it is purely going to be down
to a solicitor deciding whether a person should or should not
have legal aid and there is no appeal against it. It could be
very unfair and lead to a lot of injustices. There would need
to be something that could either be to the Legal Services Commission
themselves, but that would involve delay, or it could be to the
court as the final arbiter.
Mr Clarke: Even now, if a Justices'
Clerk were not to grant, there is always a right of appeal to
the court of trial, and it must be the court of trial that is
the best judge of whether this person needs representation in
the interests of justice.
Q57 Chairman: If you do not have it might
you finish up with a judicial review?
Ms Barnett: We see that as a possibility.
Q58 Chairman: Are you equally, in the
Magistrates' Association, comfortable with the idea of some kind
of appeal to the court of trial itself?
Ms Barnett: We think it ought
to be essential. At the moment, as has been said, we deal with
appeals on grant of legal aid—not very many of them—and
we are entirely happy with that system and think it is proper
and correct. The idea that it should be removed is just appalling.
Chairman: Thank you very much indeed
for your answers.
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