Select Committee on Constitutional Affairs Fifth Report

2 Background

11. The underlying purpose of the draft Bill and accompanying Consultation Paper is to reduce CDS expenditure. The basic proposals are twofold:

  • First, to transfer responsibility for the grant of criminal legal aid from the courts to the Legal Services Commission; and
  • Secondly, to reintroduce means testing for criminal legal aid.

The Criminal Defence Service

12. Criminal legal aid exists to ensure that defendants who cannot afford to pay their own defence costs are still able to access legal services when needed. Without this system, some people would be unable to obtain legal advice and representation. This could in turn lead to unfair trials and "inequality of arms" between the prosecution, on the one hand, and the defendant, on the other. Legal aid also helps to protect the rights of defendants and can serve to reduce burdens on the courts.[6]

13. The Criminal Defence Service is run by the Legal Services Commission and its aims are:[7]

  • to ensure that the Government meets its statutory and international obligations which provide that:
    • people arrested and held in custody have the right to consult a solicitor privately at any time; and
    • defendants have a right to defend themselves in person, or through legal assistance of their own choosing; or, if they have insufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
  • to help ensure that suspects and defendants receive a fair hearing at each stage in the criminal justice process; and in particular that they can state their case on an equal footing with the prosecution;
  • to protect the interests of the suspect or defendant; and
  • to maintain the suspect's or defendant's confidence in the system, and facilitate his or her effective participation in the process.

14. The CDS has responsibility for managing most criminal legally-aided defence services. To a large extent it does this through the General Criminal Contract (GCC), although Very High Cost Criminal Cases are dealt with by individual contracts. Representation in the Crown Court is not currently covered by the GCC, but since April 2003 the LSC has been accountable for all CDS expenditure in the Crown Court.

Legal representation

15. The current proposals would not impact on all legal work funded by the Criminal Defence Service. They would only affect legal representation. Representation provides for the cost of a solicitor advising and assisting their client in the preparation of their case, representing a defendant in magistrates' courts, and ancillary applications such as for bail. In appropriate cases, it also covers the cost of an advocate (often a barrister) in the Crown Court, as well as advice on appeal against a verdict or sentence and preparing a notice of appeal.

16. Although legal representation is only one element of the legal services funded by the CDS, it represents a significant proportion of total CDS expenditure. Funds paid out in respect of representation account for the majority of the criminal legal aid budget.

Representation orders

17. Criminal legal representation is only funded by the Criminal Defence Service where a representation order has been obtained by the defendant. Although the Legal Services Commission is responsible for funding the CDS, the courts grant representation orders. Most often this is done by magistrates' courts, even if the case is to be tried in the Crown Court. The Justices' Clerks explained to us that, in practice, clerks or other court staff decide whether legal aid should be granted in the majority of cases and that this decision may then be appealed to the court.[8]

Interests of justice test

18. Representation orders may only be granted where it is in the interests of justice to do so. In broad terms, it is in the interests of justice to provide a defendant with free legal representation in cases:

  • where the outcome could have serious implications for the defendant, such as imprisonment, loss of livelihood or serious damage to their reputation;
  • where the proceedings would be difficult for a defendant to understand or defend in person;
  • which involve an important question of law; or
  • where representation is necessary to protect a victim or witness against personal cross-examination by the accused.[9]

Means testing

19. At present, a defendant's means are irrelevant in the determination of whether or not they should receive publicly funded criminal legal representation. If the interests of justice test is satisfied, the cost of a defendant's legal representation would be paid by the Criminal Defence Service. In the Crown Court, a Recovery of Defence Costs Order may, however, be made at the end of a case resulting in a defendant paying some or all of their legal aid costs.

6   For example, legal representation can discourage unmeritorious trials and ensure that cases which are brought are argued rationally and coherently Back

7   'Contract Documentation Overview', General Criminal Contract, Contract Documentation, LSC, para 1.2. Available at Back

8   Q 32 (Neil Clarke) Back

9   The test applied by the courts in order to determine whether publicly funded representation is required in the interests of justice is set out in the Access to Justice Act 1999. This is based on the criteria contained in the 1966 Report of the Committee on Legal Aid in Criminal Proceedings, chaired by Mr Justice Widgery (for this reason they are also known as the 'Widgery criteria') Back

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