Examination of Witnesses (Questions 120-139)
29 JUNE 2004
RODNEY WARREN,
EVLYNNE GILVARRY,
HELEN COUSINS
AND ROBERT
BROWN
Q120 Chairman: Those are the cases where
it would be fairly automatic.
Ms Cousins: Yes, somebody on a
murder is going to pass the interests of justice test. "For
summary-only offences and the less serious either-way offences,
the funding decision would be made by fully trained LSC staff.
We anticipate requiring all solicitors to submit their applications
through the on-line service."
Q121 Ross Cranston: It is on that that
I was asking initially for your reactions.
Ms Cousins: I am grateful.
Mr Warren: I would say in respect
of that proposal that I would approach it with considerable caution
For the Legal Services Commission to be able to deliver the speed
of response that we would require, there is a similar process
that operates now in terms of civil law actually for the grant
of some types of legal aid order, and experience has not shown
that it is consistently effective. We are talking here about a
much bigger process potentially. I do not know what the numbers
of applications would be, but they would be great. Of course court
hearings these days come very quickly after charge, so the time
available to undertake this process is very limited. Very often
a defendant will be in court within three days of charge and so
the time for turnround has to be quick to enable it to operate.
I would be very keen to see exactly how they would propose that
this would operate effectively. I would envisage that they would
have to get it quite close to a 24-hour service to be able to
undertake it.
Q122 Ross Cranston: That is the sort
of issue that I wanted to explore here.
Mr Brown: It seems to us that
the institution which really has the vested interest in dealing
with cases efficiently is the court. The court is the body that
has to deal with the case and, if they have the power to grant
or refuse a representation order, they have an interest in dealing
with it efficiently. If there is a problem or a log jam or cases
being held up because the application for a representation order
has not been dealt with, there is someone in the court that can
tell the legal aid clerk in the court to sort it out, which is
what has always happened and happens now, rather than place it
in some other location away from the court because it is the court,
after all, that wants to get on with the case.
Q123 Ross Cranston: From what Mr Warren
has said, there is no confidence that if you send it off somewhere
else it is going to be dealt with within its 24-hour period.
Mr Brown: I think the Commission
could probably speak best about that. I know they have certainly
said they were planning to put in an arrangement so that it will
work. I think time will tell.
Q124 Mr Soley: If the proposals go through,
what are the chances in your judgment of a challenge under the
Human Rights Act?
Ms Gilvarry: Could I just say
that we very much hope the proposals do not go through.
Q125 Mr Soley: I understand that, but
if they do.
Ms Gilvarry: At the outset, could
I make the point that we have a great worry that this means test
will be reintroduced in a rushed way, in isolation from what has
just been announced, which is a fundamental legal aid review,
and if we are to believe the aims of that review it is to look
right across the criminal justice system to see where the main
drivers are, to see where costs can be saved, to see where efficiencies
can be made. I will answer your question in a moment, but we earnestly
hope that there will not be a knee-jerk introduction of this scheme,
which might even working at its best only yield very small amounts
of money, without proper analysis. Will there be a challenge?
I do not know whether there will be a challenge. It depends on
precisely how it is introduced.
Mr Brown: It depends how it works
in practice. We do not know, but it does not seem to me, with
respect, an obvious situation where someone's right to a fair
trial is going to be denied as a result of this legislation. Of
course, if it transpired that defendants were being denied the
right to representation because there was no legal aid in case
that deserved it, then that could be a breach of their right to
a fair trial under article 6. We have mentioned a number of concerns,
which you know about. There are many serious concerns that we
have but they are not particularly Human Rights Act concerns.
Q126 Mr Soley: Other people have said
that they think there will be a challenge simply because there
will be the denial of a right to a fair trial.
Mr Brown: One would have to see
about that. It may be that is the case, but it does not seem to
me that that is obviously the greatest threat.
Q127 Mr Soley: If there was an appeal
to a court, if the solicitor turned down a request for legal aid,
would that reduce the chances or not?
Ms Cousins: I think it is an area
which certainly somebody will look at and take advice. It is not
something that I feel able to answer at this stage.
Mr Warren: I think it would probably
reduce the impact of it. I would not exclude at first, if this
legislation were to be enacted, a number of perhaps ambitious
challenges under article 6. I make no comment about whether or
not they would be appropriate but I think it is quite likely that
the point would be taken. It may well be, in respect of the grant
on the interests of justice test, that an appropriate appeal process
to a court could be a way of dealing with issues of that sort.
Of course it does not allay the considerable fears we have about
administration of the means test in the various proposals that
exist there.
Q128 Mr Soley: Would any of the clients
you have who cannot afford to pay their own defence costs be denied
legal aid under the means test proposed?
Ms Cousins: Under model 2 there
is a £25,000 cut off. Yes.
Q129 Mr Soley: Could you give me an idea
whether it would be a lot or few?
Ms Cousins: People in other areas
would suffer more greatly than mine. I practise in central Leeds.
Earnings in that area are considerably less than they are in Hertfordshire
or lots of other areas of the country, so it would perhaps not
affect my clients so much, but I can see that there would be vast
tracts of the southern counties where £25,000 is really not
a king's ransom.
Q130 Mr Soley: On the issue of the general
costs, I take it you share the concern that the costs are rising
very fast. You would agree with that, would you?
Mr Warren: We would.
Q131 Mr Soley: Everybody knows they are
against it but nobody knows what they do about it.
Mr Warren: Yes. We are very concerned
about it.
Q132 Mr Soley: I hear you saying you
would like a bit more research done but have you any thoughts
on it.
Mr Warren: In terms of controlling
costs?
Q133 Mr Soley: Yes.
Mr Warren: Certainly, I think
perhaps a good example and an immediate example is that in today's
Times there is an advertisement for a judge's job in what
is called the Community Justice Court. It is a pilot to be run
in North Liverpool. It is, I think many people would agree, a
very ambitious and appropriate project to try, but the idea is
a more holistic approach to dealing with the issues surrounding
criminal law and criminal behaviour. The point about that though
is that a lot of work has been undertaken in preparing this pilot
to make sure that it is effective, and we wish it well. Recently,
I asked those responsible for the implementation of this process,
including the purchase, for instance, of new court buildings,
how much money had specifically been allocated for legal aid because
it seems to me inevitable that if you introduce a process which
has a different sphere of operation, probably with different procedures
and indeed with different sentencing powers, but certainly to
include civil law within its remit, that you are going to increase
the need for legal aid work, and the answer was that there had
been no provision made at all for legal aid but it was at least
pleasing that every other agency had created its appropriate budget.
That type of absence of acknowledgement is what concerns us. I
can give another example. Fairly recently there was an announcement
of a scheme called "Operation Payback", a very laudable
process indeed to chase fine defaulters. It is estimated—and
I forget the precise figure—that something like £350
million is outstanding in unpaid fines and this is a process designed
to bring these individuals who do not pay to book. We support
it fully, but the point about it is that almost by definition
those individuals if they are brought back to court will qualify
for legal aid, many of them will anyway, because there is a realistic
prospect that custody could be an option in dealing with the fine
default, and we are not aware—or I am not aware anyway—of
any provision being made in legal aid terms for the costs of dealing
with those people. And actually, of course, there is a direct
cost and it would be relatively easy to measure what it might
be.
Q134 Mr Soley: I think you have indicated
already in what you have said that you do not think these proposals
will save much money. Is that true for all of you? Or do you believe
it would be more effective to try to save money from the more
expensive cases? If so, how?
Mr Brown: I have already mentioned
the very high cost criminal cases which account for a vast proportion
of the budget: 50% of the whole crown court budget goes on 1%
of crown court cases. We have for some time suggested now that
those cases should be removed from the legal aid budget as it
stands and accounted for separately. A decision to prosecute one
customs case, one fraud case, for example, may lead to tens of
millions of pounds in costs for the prosecution, for the court
service and for legal aid. Those decisions at the moment are made
without any cost benefit analysis. I will give you one anecdote.
In a recent case involving interfering with computers was prosecuted
and no one received a custodial sentence in the case. Some people
pleaded guilty and received a non-custodial or short custodial
sentence. The case, as I understand it, cost something like £20
million in defence legal aid costs. Was it really worth prosecuting
that case? Many fraudsters commit serious offences and ought to
be brought to book, but is it really right that the state should
spend such a disproportionate part of the budget on those cases?
We would like those cases to be taken out of the system so that
they can be looked at independently and a proper cost benefit
analysis can be made by a properly appointed officer, whether
it is the attorney general or the DPP or someone else, before
a decision is made to bring a charge, because, once the decision
is made to bring a charge, it sets in an unstoppable train of
costs and one of our objections to that is that this then deprives
the rest of the budget, so that people who may be victims of domestic
violence, people with apparently much smaller problems, suffer
by cuts in legal aid because the money is draining into the big
area. We would like to see is big are taken out of the budget
and examined. We think much greater savings could come in there.
Another specific way in which I think in financial terms the Government
shot itself in the foot was to change the law so that when defendants
have their finances restrained pending law proceedings those restrained
funds can no longer be used to pay their lawyers, which was the
case before the Proceeds of Crime Act. As a result now legal aid
money is spent to pay lawyers who are acting in restraint proceedings,
and, as a result of the Proceeds of Crime Act and other money
laundering initiatives, there are very substantial cases relating
to the restraining of funds/ assets pre-trial, and the Legal Aid
Fund is now paying for that because the Government decided that
lawyers could not be paid out of the restrained funds. We think
there are some big initiatives that could be taken to protect
the general legal aid budget. Although we are not against the
notion behind this bill, which is that those who can afford to
pay should pay, we think it is very much tinkering at the edges.
Q135 Chairman: Your big initiative is
concerned with somebody else paying rather than the legal aid
budget, but the problem is still there, is it not?—except
that there is a possibility that you should step back from cases,
on the grounds that it is just not worth the money.
Mr Brown: That is absolutely right.
Some of these cases will still have to be prosecuted and they
will have to be funded. We perceive there are two problems at
the moment. We think there is a significant number of cases, which
cost vast amounts of money, which frankly probably should not
be prosecuted in that way, brought to justice in that way. Secondly,
the justice system as a whole is being disproportionately affected
as a knock-on consequence of these cases eating into the budget.
We see figures in these papers before us where there may be a
net saving of £2 million per year here ore £7 million
after three years. You have to charge one person with a large
fraud case and suddenly the Commission has to find £20 million
or £30 million.
Ms Cousins: We are not suggesting
that these people are not brought to book in one way or another
but there are other ways in which they can be punished and ways
that in fact are far more difficult for them than a conditional
discharge or a very short non-custodial community penalty. There
are all sorts of directors' powers, things that I know nothing
about but which Mr Brown can address.
Ms Gilvarry: A whole range of
civil penalties could properly be applied to a good number of
these cases with corresponding savings on the Legal Aid Fund.
Mr Brown: On your other point
about are we concerned about the budget always going up, of course
we are concerned about it but that is a consequence of the society
in which we live and other decisions that are taken. The Government
sets targets to increase arrest rates. As we know there are more
and more new criminal offences created all the time; very budget-rich
policing; the creation of the National Criminal Intelligence Service;
the creation of the new Organised Crime Squads. If society wants
to tackle crime—and of course we support society doing that—there
will be a knock-on effect, there will be more cases. The technologies
in the methods of investigating crime are far more sophisticated
now than they used to be. We cannot just look at the budget 10
years ago and say, "What has changed? Why has it gone up?"
It is because the police are more active; it is because they use
methods of detection in terms of getting access to computer records,
mobile telephone records and so on which just did not exist 10
years ago. It is partly a consequence of drivers which are actually
beyond the control of those who are responsible for the budget.
Like the Legal Services Commission, they have to put up with yet
another two Criminal Justice Acts.
Q136 Mr Soley: I do not want to go into
it, but there is a danger in that argument because almost any
organisation can make the argument that things change, therefore
our costs go up. Other organisations do something about the costs.
I accept there are unquantified factors in this one. On the recovery
of defence costs orders in magistrates' courts or for that matter
in crown courts, do you have any views about how effective that
is and whether it is better done in crown courts or magistrates'
courts?
Mr Warren: The approach to that
process is a good one. We have supported it since the idea first
was mooted. We think it is probably not used enough and we would
support its introduction in the magistrates' court. It is probably
a good and appropriate process—we think—if it were
employed appropriately for dealing with the very issue which we
are concerned about; namely, that those people who can afford
to pay should pay the appropriate amount towards the costs of
their defence if they are convicted.
Q137 Mr Soley: Do you think that could
be done better than it is at the moment?
Mr Brown: Yes. I think there is
lots of evidence that they are not being used as effectively as
they could be. They only exist at the moment in the crown court—they
only apply to crown court proceedings, but of course those are
the expensive cases and again one does hear of cases where defendants
may be, let us say, convicted of serious fraud offences, where
there has been substantial benefit, and relatively small amounts
are ordered to be paid by them by the judge in relation to defence
costs and a realistic view is not taken of the true defence costs
and we do think crown court judges should be more active in enforcing
them. They come at the end of the case—it is really very
much the fag end of the case—and we feel they do not receive
the attention or are not enforced with the energy which could
be the case. We know that senior members of the judiciary are
exhorting crown court judges to make better use of them and we
support that. You could recover far more than £34.
Q138 Ross Cranston: Could I take these
high costs cases. I take the point you have made—although
I think there would be arguments about whether fraud ought not
to be prosecuted. White-collar crime cannot go unsanctioned, and
I am sure you would not suggest that. But last week we had Lord
Justice Judge and he was suggesting that one way of getting down
costs and bearing down on costs was greater case management. He
showed us the drafts of a new set of criminal justice rules comparable
to the Woolf rules on the civil side. He gave a number of examples,
one of which was that in some cases when you have a number of
defendants you did not need separate solicitors representing each
defendant. It could be done by one firm. This also has implications
for the Bar as well. I would like your reaction to that sort of
notion that you can bear down on costs by greater case management.
Mr Warren: First, if I may, to
deal with the Criminal Procedure Rules that you mentioned, the
Law Society has been keen to play an active part, has been playing
an active part and supports fully the work that is going towards
their creation. We think they are going to help considerably.
I am concerned, I think, at the suggestion that case management
alone is the answer to the question.
Q139 Ross Cranston: I do not think he
was suggesting that; I think he was saying it was a contribution.
Mr Warren: Yes, I would agree.
Mr Brown: I think it has been
agreed, as part of the recent review carried out by the Lord Chancellor,
that in future in very high cost cases no two defendants will
ever be represented by the same solicitor, they will have to be
separately represented. Therefore, on Lord Justice Judge's suggestion
that money can be saved by only one firm being involved on behalf
of one defendant, I am afraid we are moving in the other direction.
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