House of Commons - Constitutional Affairs

Select Committee on Constitutional Affairs Fifth Report

5 Means testing

105. The Department proposes that, in addition to the interests of justice test, defendants would be required to satisfy a means test in order to be eligible for publicly funded criminal legal representation. The proposed CDS Bill does not contain the features of the means test to be adopted. Instead it would create delegated powers, enabling the details of the means test to be set out in secondary legislation.

106. The DCA has described the purpose of the draft Bill as ensuring "that the taxpayer receives best value for money from the Criminal Defence Service".[147] It states that "means testing would ensure that those defendants who can afford to pay their legal costs do so,"[148] and comments that "it has always been the will of Parliament and a cornerstone of the Department's legal aid policy that those who can afford to pay for their defence should do so."[149]

Abolition of means testing in the Access to Justice Act 1999

107. Means testing for criminal legal aid would not be a new phenomenon. It currently applies in some types of CDS work and also applied to criminal representation until 2001. Means testing for criminal legal representation was abolished under the Access to Justice Act 1999. Two main reasons were cited for its abolition:

Cost and Bureaucracy: The previous means testing regime was described as "ineffective and wasteful" and the "cost of means testing and enforcing contribution orders [was] high in relation to the contributions recovered".[150] The Consultation Paper acknowledges these difficulties with the previous system.[151]
Delays to the Legal System: The Department has also acknowledged that there were indirect costs of the old means testing system "such as delays through adjournments caused by the need to obtain substantial supporting documentary evidence of means before legal aid could be granted".[152]

108. In a paper published in December 2001, Pascoe Pleasence, Head of the Legal Services Research Centre commented that:

"In relation to Criminal Representation, financial eligibility testing was effectively abolished in April 2001… Given that the vast majority of persons assisted by criminal legal aid were financially eligible under the previous arrangements, such a move involved little cost, yielded substantial administrative savings, and recognised fully the state role in the Criminal Justice System."[153]

109. In its evidence to the Committee, JUSTICE stated that the Consultation Paper "somewhat understates the problems that arose under the [means testing] arrangements that were abolished by the Access to Justice Act 1999".[154] JUSTICE also referred us to a critical Public Accounts Committee Report from 1998, which commented on the lack of sufficient evidence of income and expenses considered by the courts and the inaccuracy of their calculations.[155] The LSC is also concerned about the danger that the reintroduction of means testing could lead to their accounts being qualified. In its submission, it identified Models 1 and 3 as carrying particular risks in this regard.[156]

110. Magistrates' courts were responsible for administering the previous means test, abolished in 2001. The Justices' Clerks' Society commented on the scope for abuse of the old system, including the provision of false information by defendants.[157] The Magistrates' Association has explained that "the verdict on earlier schemes was that they were 'cumbersome and unworkable' and "the models described here may vary in detail but all have to involve means forms and documentary evidence to support claims."[158]

111. This evidence was also supported by the senior judiciary. Lord Justice Judge told us:

"My concern … is that we got rid of [means testing] in the Act of 1999, the change came into force in 2001 and we really, if we are going [to] introduce a means-test system, have to do a lot better than the system that was thought so inefficient that it was abolished. I do not see that here."[159]

Suggested models

112. The Consultation Paper explains that the major tension in deciding on an appropriate means test is that between fairness and simplicity. It comments that the means test model adopted must balance the following needs:

ensuring that help is focused on those that need help the most;

protecting the fundamental rights of the accused;

ensuring that the means test does not cause delay in the Criminal Justice System as a whole;

ensuring that the process does not cost more to administer than it saves and demonstrates value for money; and

the affordability of contributions to be paid by an assisted person.[160]

113. The Consultation Paper suggests three possible models but explains that:

"These are not intended to represent a concluded view but are rather a means of exploring the issues. Nor is it suggested that these models represent the only ways in which the means test might be implemented … None of the models should be considered in isolation and it may very well be that the final framework represents a hybrid that borrows thinking from a number of different sources."[161]

There follows a summary of the three suggested models.

Model 1—net income

114. Model 1 is broadly based on the means test that existed prior to the Access to Justice Act reforms. It is, however, designed to reduce the level of bureaucracy that existed under that regime. This model would require defendants to provide evidence of their income, expenses and capital. The means of the defendant and of their partner would be calculated together to determine eligibility.

Magistrates' courts

115. Depending on their "disposable income and capital", a defendant would receive free representation, be required to make a contribution to the cost of his defence or would not qualify for help at all:

No Contribution: If the defendant receives means tested benefit or has disposable income of less than £91 a week and disposable capital of less than £1000.[162]
Contribution: If a defendant is not entitled to free help, a contribution would normally be required, amounting to 10% of the average standard fee for the case.[163] The Department has estimated that the average contribution would be a "little over £50".[164]
Help refused: Where it is apparent that a defendant's income or capital is such that they could pay the costs of the case without recourse to public funds (the Consultation Paper provides no details as to how this would be measured).

Crown Court

116. Model 1 could require a defendant to make contributions to the costs of their legal representation in the Crown Court. Where a contribution is required for Crown Court cases, a defendant would be required to pay the lower of 10% of the total estimated costs or £2,000.[165]

Advantages and disadvantages

117. Model 1 is perhaps the fairest of the proposed models as it takes account of outgoings in deciding what a defendant can afford. However, this makes it the most complex model. It would require solicitors to collect information on income, outgoings and capital which could cause delays. Furthermore, solicitors would have the burden of collecting contributions from their clients. The affordability of contributions may also be an issue, especially in the Crown Court, where a defendant could be required to pay up to £2,000.[166] For defendants required to make a contribution, solicitors would have to predict the category of fee claimable from the LSC at the end of the case. They are unlikely to be able to do this accurately.

118. The Consultation Paper estimates that this model could lead to net savings of somewhere between £23.8 million and £61.8 million (median—£47 million). The Department estimates that only £1 million of this would come from contributions in magistrates' court cases and that only £3 million would come from contributions in Crown Court cases. The majority of the savings would come from defendants being denied help altogether or from being deterred from applying for legal aid (see paragraphs 159 to 161 below). It gives no estimate of the cost to either the LSC or defence solicitors of monitoring and applying this means test and of collecting contributions.

Model 2—all or nothing

119. Under this model, either a defendant's legal costs would be covered in full by the CDS or the defendant would have to cover all of their own legal costs. This is decided on the basis of gross household income and capital; it does not take account of a defendant's outgoings. The model does not provide for the payment of contributions.

120. The full costs would be covered if a defendant is in receipt of means tested benefit OR has: A) gross household income of not more than £25,000; and B) gross capital of not more than £5,000. If income or capital exceeds these limits, the defendant would be ineligible for legal aid in the magistrates' court.

121. This model would only apply in magistrates' courts. Cases which may only be tried in the Crown Court would not be means tested before grant and could be subject to a Recovery of Defence Costs Order in the normal way. Cases which may be tried in either the magistrates' courts or the Crown Court would be means tested in the magistrates' court but, if committed to the Crown Court for trial, a defendant who had failed the means test previously would be able to reapply for public funding.

Advantages and disadvantages

122. The main advantage of this model is its simplicity. Solicitors would not be required to obtain either evidence of outgoings or to collect contributions from clients, although it would still require them to obtain evidence of income and capital. As means testing would not apply in the Crown Court, this model would create a perverse incentive for defendants to elect trial in the Crown Court instead of in the magistrates' court. The model is also the least fair for defendants. The cost of representation could substantially exceed a defendant's disposable income and capital and the scheme would particularly work to the disadvantage of defendants whose gross income or capital is only marginally above the limits. This model is the most likely to have adverse access to justice implications.

123. The Department has estimated that this model would lead to about 4,000 fewer grants of legal aid and that it could lead to net savings of between £25 million and £62 million (median—£39 million).[167] It gives no estimate of the cost to either the LSC or defence solicitors in monitoring and applying the test or of any downstream costs which would result from the potential increase in unrepresented defendants.

Model 3—sliding-scale contributions

124. This model would involve a defendant paying a contribution, the amount of which would increase according to the defendant's gross household income. Like Model 2 this model does not take account of a defendant's outgoings.

Magistrates' court

No contribution would be payable where a defendant receives means-tested benefit or where their gross household income is below £10,000 (unless their gross capital is over £5,000).

A Contribution would be payable where gross household income exceeds £10,000. The amount of the contribution would vary according to the level of income.[168] The Government has estimated that the average contribution would be "a little over £150".[169]
No Legal Aid would be payable where gross household income exceeds £30,001 OR the defendant has gross capital of over £5,000.

Crown court

125. Very High Cost Criminal Cases (VHCCC) would not be means tested but would be subject to a Recovery of Defence Costs Order at the end of the case. For other cases which proceed to the Crown Court, the same means test would apply but there would be no upper gross income limit.[170] Instead, if a defendant's gross household income were between £30,001 and £44,999, he would have to make a contribution of a third of the amount by which his gross household income exceeds £30,001. This would be subject to a maximum contribution of £4,999. The Government has "assumed that the average level of contribution would be £2,000".[171]

Advantages and disadvantages

126. This model is simpler than Model 1 as it is based on gross rather than disposable income and capital. It could be fairer than the other models because the contributions, linked to income rather than the cost of the case, are likely to be more manageable for defendants. On the other hand, the cost of the contributions could still exceed a defendant's disposable income and solicitors would be required to obtain contributions from clients. The contributions payable in Crown Court cases could be considerable, especially if defendants were expected to pay up front.

127. The Consultation Paper estimates that this model could lead to net savings of between £45 million and £93 million (median—£69 million). Of this, the Department estimates that £2.9 million will come from contributions in magistrates' court cases and that £1.5 million will come from contributions in Crown Court cases. It gives no estimate of the cost to either the LSC or defence solicitors in monitoring and applying a means test and collecting contributions.

Analysis of Model 2

128. The LSC suggested in written evidence that Models 1 and 3 are probably unworkable since they rely on the collection of contributions. It concludes that:

"The additional work generated for solicitors through models one and three may lead to remuneration issues, with the profession contending that this is new work for which they expect to be paid, so reducing any anticipated savings. We believe that the simplicity of model two would lessen both of these risks. It is worth highlighting that legal aid rates have remained frozen since April 2001 and prior to that there was no increase in rates for 7 years. Solicitors contend that rates have not kept pace with inflation. The recent scope cuts have affected the profitability of crime work still further and it would be fair to say that in the current climate, the profession is unlikely to co-operate in undertaking more work without extra payment. Given these risks, it is our view that solicitors are likely to refuse to undertake anything but a simple means assessment test and will not be prepared to collect contributions on our behalf. Our preferred model is therefore model 2…"[172]

Roger Smith of JUSTICE, concurred with this view stating that "it seems to me that those drafting this paper have, classically, put in three options and two of them at least do not fly, so the only serious one is the second one."[173]

129. The professions agreed with the LSC's initial statement, the Legal Aid Practitioners' Group commenting that:

"We are wholly opposed to the idea that solicitors should have to calculate and collect contributions to costs."[174]

The Law Society also confirmed that it is opposed to solicitors being required to collect contributions, noting that: "we think it is unrealistic to expect solicitors to have to chase clients for unpaid contributions, not least because of the additional cost to the firm in so doing."[175]

130. In oral evidence, the Department sought to refute these criticisms and Clare Dodgson clarified the LSC's written submission as follows:

"… what the Commission has said is it has expressed its preference from where it sits … that …our preference would be for option two; but if the decision were for one of the other options or a hybrid of the three, then, of course, we have made previous options work, we would make whatever the Minister's decision on what the new one would be work."[176]

131. Whilst we agree that, of the three suggested models, Model 2 would be the simplest and easiest to operate, it would also be the least fair for defendants. The Minister has acknowledged that "I do not think we were pulling any punches in terms of Model 2, indicating, as I think we said there, that the model has the benefit of simplicity, but we also went on to say that clearly anyone earning over £25,000 would be cut off".[177]

132. Of the three proposed models, Model 2 is the most likely to raise access to justice and human rights concerns. Given that many of the key details are missing, such as how the "gross household income" test would apply, it is impossible to reach a firm conclusion on whether Model 2 would be human rights compliant. It is, however, likely that many defendants, who live in a household with a number of dependants, could not afford to hire a lawyer privately, even where their household income exceeded the £25,000 threshold.[178] In such circumstances, it is probable that the courts could find a breach of Article 6(3)(c) of the European Convention on Human Rights (the human rights implications of means testing are discussed in more detail at paragraphs 162 to 165 below).

133. Many of the practical difficulties with the current proposals in terms of delay and added bureaucracy would apply equally to Model 2.

Household income

134. The proposed models, including Model 2, rely on an arbitrary assessment of household income which has been heavily criticised by witnesses. Roger Smith of JUSTICE complained that the concept of gross household income has not been properly defined:

"The second [model] is full of problems, if you start picking it apart, because although the income test is in relation to the individual concerned, the capital test is a household capital test. So a solicitor will be required (a) to define who is a member of the household of the defendant and (b) what is their capital. Clearly, the drafters have not had in mind the extended family; a situation where, maybe, it is the grandson who is on trial but the grandparents who have got the money—the grandparents have just retired and they have £26,000—and the grandson has not got anything but he is above Job Seeker's Allowance. It is not a logical test. A person who stands before a court as a defendant stands alone (certainly an adult does) and their parents and background is somewhere in the background. So you have, it seems to me, to have individual tests of capital and income, and once you ask solicitors to decide the rules on a household you get into problems."[179]

The Legal Aid Practitioners' Group also commented on this aspect of the proposals, stating that:

"A model that cuts off entitlement based on household income, with no consideration of the numbers in the household, does not appear just. A single man on £25,000 would be more able to pay (or at least to pay something) than a married man with two children on the same total household income. Given that many defendants are juveniles or young adults living at home, would the income of parents, brothers and sisters be included?"[180]

135. Neither the Department, nor the LSC has been able to provide a satisfactory explanation of how the "gross household income" definition would work in practice. Clare Dodgson did suggest that her understanding on the household income point was that it was "the income that comes into the household" but went on to admit that "if that is technically incorrect I will come back and clarify the facts immediately".[181] Subsequently, we received a written communication from the Department, which indicated that this definition was not entirely accurate. The letter stated that:

"Household in the context of means assessment will not mean anyone other than the accused and his/her partner's means or the accused's parents or guardian where the individual is under the age of 17 years old. Household income will in the main be limited to the accused and his or her partner's income. An adult child living with his or her parents would only have his or her means assessed, and not those of the parents."[182]

This muddle would appear to confirm the view that insufficient thought has been given to a critical element of the proposals. If the written statement of the meaning of "household" were taken to be correct, it would create further problems. Legal aid would be payable to some members of a group charged with a common offence and who were over 16 and denied to others in the group who were below that age. This situation potentially places younger defendants at a disadvantage.

136. Two of the proposed models rely on the collection of contributions, which we have been told solicitors may not be willing to do. The only model which does not require contributions to be collected imposes an arbitrary cut off point, based on an undefined notion of gross "household income and capital", and takes no account of defendants' expenses. We consider there to be a significant risk that defendants who could not in practice afford to pay for their own legal representation would be denied representation under these proposals, even if the interests of justice required them to be legally represented, leading to the possibility of a challenge under the Human Rights Act.

Practical implications

Evidence of means

137. The Consultation Paper explains that, when applying the means test, solicitors would be required to take reasonable steps to ensure that a defendant's means are such that they are entitled to help. This would include obtaining evidence of the client's capital (such as tax statements or details of savings accounts) as well as evidence of their income (i.e. tax certificates or payslips, tax returns if self-employed, or benefit books for Income Support or Jobseekers' Allowance).[183] Because the tests rely on household income, it may also be necessary to obtain information on the income of a defendant's partner and/or other members of the household.

138. JUSTICE has commented on the difficulties that solicitors are likely to experience in obtaining documentary evidence of their clients' means, including the fact that defendants may not have a regular source of income.[184] The Justices' Clerks' Society explained the difficulties that were experienced with obtaining evidence of means under the previous regime:

"the courts frequently deal with the socially disadvantaged, those with low educational attainments, who live highly disorganised lives and who are too often afflicted with health problems, including drug addiction. Asking such a person to produce proof of passporting benefit within a reasonable timescale can prove more difficult than many of us may imagine."[185]

They cited, in particular, the following practical difficulties:

"those, who had just attained the age of eighteen, had claimed benefits but not yet had their application processed;
those who had recently moved home and had to change benefit office and were again having their application processed;
those who were self-employed, worked for cash, and whose books and records were wholly inadequate;
asylum seekers who, at that time, were given vouchers rather than benefit;
parents, who were at their wits end with their child who had committed yet another offence, and who therefore refused to offer any financial support for their 16 year old son or daughter."[186]

Such problems are likely to be exacerbated if defendants are expected to provide financial information about members of their household who might have no interest in disclosing their level of income. A further problem would be the legal limits on solicitors' ability to access information about their clients' means. This would prevent them from ascertaining the accuracy of any information provided by their client.

Conditional grant

139. It is proposed that it would only be possible to make final grants of legal aid after satisfactory evidence of income and capital has been obtained. Where sufficient evidence has not yet been obtained, it is proposed that solicitors would be able to make conditional grants of representation. This would have a limited duration, after which evidence must be produced or the conditional order withdrawn. This is intended to prevent delays while evidence of means is collected.

140. The Justices' Clerks' Society's response to this proposal suggests that it might not be as effective as the Department expects:

"It is noted that there is a power for legal aid to be granted 'subject to means', with automatic revocation of legal aid after two weeks if the necessary evidence of income is not forthcoming. Will a solicitor be paid in full for any work done in those two weeks? It is not uncommon under the current system for a case to be dealt with in two weeks; what fee will a solicitor receive if this is the case? What incentive will a defendant have to provide proof of income after the case is dealt with?"[187]

Solicitors may not be willing to undertake the risk involved with working on the basis of a conditional grant.

Contributions

Ability to pay

141. The proposed means testing regime could require defendants to make a contribution to their legal costs. Unlike under the previous regime, where contributions were paid weekly for the life of the case, the draft CDS Bill proposes that any contributions payable under this regime would be payable in full at the outset. This could have a serious impact on a defendant's ability to pay. JUSTICE has commented that:

"the point of the previous arrangements [where defendants paid in instalments] was precisely that defendants on low incomes with minimal savings are unable to make substantial downpayments of the magnitude proposed, particularly in cases where a defendant fails because he or she is just over the income levels but without income."[188]

It illustrated the practical difficulties as follows:

"For example, under model 1, a person with a net income of £100 per week would be liable to pay a contribution as they would be £9 per week above the maximum income for free assistance. The extent of their maximum contribution would be for a Crown Court case where their liability would be 10 per cent of the costs capped at a maximum of £2,000. Assuming no savings from which payment could be made, the defendant would have to save for 220 weeks or just over 4 years before accumulating this amount of money."[189]

142. It suggests that any contributions should only be payable in one lump sum at the start of the case if the defendant has exceeded the capital limit. If the defendant has exceeded the income limit only, it comments that a one-off payment "is likely, by definition, not to be acceptable."[190] In such cases it argues that periodic payments should be permitted.[191] Allowing periodic payments could, of course, introduce downstream delays and added administrative costs in the case of non-payment, as were experienced under the old means testing regime.

Collection of contributions

143. The Justices' Clerks' Society commented on the difficulties in obtaining contributions from defendants, explaining that "enforcement procedures were not straightforward and performance was often poor to the extent that some of the amounts due remain uncollected three years after the system of contributions was abolished."[192]

144. It is proposed that, if a defendant is convicted, the LSC would pay the defence solicitor's fees, less the contribution paid by or due from the defendant. The solicitor would, therefore, be responsible for obtaining the contribution from their client. Where a barrister is instructed, the risk of non-collection will be shared between the solicitor and the barrister. Solicitors and barristers are particularly at risk where they have to make a conditional grant because of lack of evidence of means, and the case proceeds to its conclusion in one or two hearings, especially where the client is remanded in custody.

145. The Law Society explained in their written evidence that:

"…it would be unacceptable for solicitors to bear the losses incurred in any failure of defendants to pay their contributions. Whilst it would be reasonable for solicitors to collect a single contribution at the start of the case and therefore not undertake any work until that was paid, the risk with what is proposed is that a solicitor may have to choose between withdrawing from a case halfway through where a contribution is not paid, or proceeding and having to bear the loss personally."[193]

The Legal Aid Practitioners' Group are also concerned about the proposal that solicitors would be responsible for the collection and calculation of contributions, especially if such work is not remunerated. They commented that:

"We are wholly opposed to the idea that solicitors should have to calculate and collect contributions to costs, and on the figures so far provided, we believe that contributions are being proposed at far too low a level of income. Contributions are not of themselves objectionable if set at a reasonable level and if the collection is carried out by the State. We would suggest that the cut-off point should be the higher rate tax band, with a tapering of contributions up to that point."[194]

Delays

146. The Department comments that the current proposals will give solicitors greater flexibility and autonomy and that they will have "certainty of knowledge that a decision of grant can be made at a much earlier stage, allowing them to proceed to early preparation of their client's case".[195] It also argues that the revised arrangements would reduce disruption to the courts because decisions about grant would be made before the first court appearance, stating that "individuals will not require adjournments to seek advice and representation" and there "will be no delay in determining an individual's eligibility before the case can proceed".[196]

147. The Justices' Clerks' Society and the Magistrates' Association are sceptical about the ease with which solicitors will be able to make decisions about grants of representation. The Society wonders "will courts see a return to the delays in the system caused by the legal aid problems?"[197] and the Association comments that "there is a real risk that the proposals will involve a great deal of bureaucracy and that there will be difficulties and delays in dealing with the necessary paperwork".[198]

148. The main concern expressed by the judiciary was that the proposals do not take account of the downstream impact of means testing. In particular they identified the potential for delay. Lord Justice Judge commented in evidence that:

"We are desperately anxious to make the system more efficient, and when you think of some of the proposals that are going on, we are concerned that, for example, under the rules, we want pretrial cases to be properly prepared; we want the lawyers, advocates or solicitors, in the magistrates' court to be paid to prepare the work well; we do not want cases to be adjourned for any reason unless it is absolutely necessary; we want cases disposed of; we want the witnesses to get their evidence done; we want the defendants to finish; we do not want more people lying in prison waiting for their trials; we do not want more witnesses waiting to come and give evidence. The whole thrust of what we are doing in the Criminal Procedure Rule Committee is to make the system more efficient… it is rather an odd time to be doing this. I could spend quite a long time on the increased efficiency that we want, but I will simply say that if we build in any form of delay at any stage in any part of the process, then this is undermined, and this would be a great loss."[199]

149. The LSC also conceded that establishing financial resources and collecting contributions would lead to delay:

"In summary, model one is the most difficult test to administer and the one likely to cause the most significant delays. Model three is a simpler test, but the collection of contributions will still cause delay. Model two is the simplest test to administer and the one least likely to cause delay and wasted costs."[200]

Impact on other initiatives

150. The Department is "aware of the need to ensure that initiatives throughout the Criminal Justice System to remove delay are not hampered by any test we introduce".[201] The Magistrates' Association has commented that the proposals give rise to a "genuine risk" of delay in grant, which could impact on the Effective Trial Management Programme.[202] It is axiomatic that if defendants are required to provide proof of means, especially if this could extend to other household members, delays would be introduced to the system. This suggests a real risk in reversing the good practice of trying to make best use of a defendant's first court appearance. As the Legal Action Group has commented:

"In practical terms, if a defendant is refused bail he or she is usually brought before the court within 24 hours. There is often not enough time for the solicitor to see the client before his or her first appearance in court. If the legal aid application has still to be dealt with by the solicitor, the court will have no option but to adjourn the case. Thus, delays will be introduced into the court process."[203]

The benefits of the more efficient management of cases are discussed at paragraphs 176 to 177 below.

Ireland—a comparative example

151. In the Republic of Ireland the legal aid system is means tested. The courts are able to grant legal aid if it appears to them that:

the defendant's means would not enable them to pay for legal assistance; and
by reason of the gravity of the charge or of exceptional circumstances, it is essential in the interests of justice that he should have legal aid in the preparation and conduct of his defence.

Although the court does apply a means test, this does not involve strict eligibility criteria of the type suggested in the current proposals. Instead, the defendant completes an evidence of means form, including information on outgoings and dependants, and the court uses this information to weigh up whether it considers that the defendant could afford their own defence costs.[204] A recent review has recommended that a formal means testing regime should not be introduced as it would lead to delays in the processing of criminal business, increased costs to the state and insufficient financial benefits to justify the cost.[205]

Unrepresented defendants

152. The Department considers that "there is likely to be a small increase in the number of defendants appearing without legal representation" and that this is likely to impact on court staff.[206]

153. A number of our witnesses have questioned whether the rise in unrepresented defendants would be small and have told us about the extra work for courts and delays which ensue if defendants do not have legal representation. The Justices' Clerks' Society has predicted that "it must surely be the case that individuals will appear before the court unrepresented and seek an adjournment to enable them to provide the necessary evidence of income to a solicitor."[207] Mr Justice Richards told us:

"In relation to the present proposals, it is the prospect of having a substantial increase in the number of unrepresented defendants and the potential that has for causing delay and additional cost in the courts that particularly concerns me; and it is not just delay and cost, it is delay in the effect on those who are waiting to give evidence. Every effort is being made to accelerate procedures so as to get trials on quickly and ensure that victims and others are able to get their evidence given, get the case passed through the court, as quickly as possible. This would all be impaired by having a substantial increase in the number of those unrepresented before the courts."[208]

The Magistrates' Association also identified this as a problem, noting that:

"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."[209]

154. There is also a concern that those who do not have legal representation and who could not, therefore, present an effective defence would be more likely plead guilty. This plea may be made for reasons of cost and to dispose of proceedings as quickly as possible, even if the defendant were innocent. Without legal advice, defendants may be unaware of the indirect consequences of their plea. In a different context, Roy Morgan of the Legal Aid Practitioners' Group warned of the downstream consequences of a criminal convictions:

"…a minor shoplifting matter [is] an offence of dishonesty which could cause loss of job, with all the inherent costs to the country that that involves and disaster to the family. Domestic violence matters sometimes result in just a binding over. They [the LSC] may regard those as less serious offences but the domestic violence order that results perhaps in a binding over rears its head in contact proceedings or care proceedings and the impact can be immense."[210]

155. Reintroducing means testing will undoubtedly cause delays. We consider there to be a significant risk that these proposals would, therefore, have an adverse impact on other initiatives designed to increase the efficiency of the Criminal Justice System in general, such as the Effective Trial Management Programme and the work of the Criminal Procedure Rules Committee, which represent an opportunity to generate more sustainable savings to the overall cost of criminal justice. The Department will need to demonstrate how these problems are to be avoided.

Calculation of savings

156. The Legal Action Group is one of a number of witnesses that criticised the lack of statistical analysis in the Consultation Paper. It wrote that:

"LAG is also disappointed that the Consultation Paper contains very little convincing statistical analysis and is not supported by proper research on the wider impact of reintroducing the means test for representation orders. We believe it would have been reasonable to expect the DCA or the LSC to provide the following information in support of the proposals:

An estimate of the increase in LSC expenditure as a result of the need to change its auditing process for firms with CDS contracts

Quantification of the costs to solicitors of applying the means test for their clients

An estimate of the resource implications for the courts and other parts of the Criminal Justice System (CJS) (including the police and the Crown Prosecution Service) resulting from delays caused by the means test having to be completed by solicitors

An assessment of the impact on victims and witnesses caused by these delays

An estimate of the number of unrepresented defendants as a result of these changes

An assessment of the effect of having unrepresented defendants on the courts and on the wider CJS, as well as the impact on victims and witnesses and on defendants themselves

Quantification of the impact of the number of orders granted as a result of the transfer of decisions to the LSC

More accurate modelling of the options for means testing, similar to that produced by the Legal Services Research Centre in preparation for the 2000 review of eligibility for Community Legal Services funding."[211]

157. The LSC has acknowledged in oral evidence that a substantial study of 2,600 cases commissioned through the Legal Services Research Centre, working with the Institute for Fiscal Studies, would not be ready for several months.[212] This clearly impacts not only on our ability to assess the cost benefits of the proposals and their likely impact on defendants but also on any contributions from third parties given that the Government's consultation period ends in early August.

158. While there have been few objections in principle to the idea of means testing, much of the research conducted on legal aid does not support the idea that means testing in itself would introduce large costs savings.[213] We understand that the large majority of people given legal aid after the abolition of the means test would in any event have qualified for legal aid under the old means testing system. The main reason for the abolition was to ensure administrative savings, which might be lost if these proposals were adopted. The Government, in its own White Paper, Modernising Justice described the former means test as a "complex and costly procedure".[214]

The deterrence aspect

159. The savings that the Department has estimated would result from the reintroduction of means testing are based primarily on the assumption that the number of applications for representation has increased as a consequence of the abolition of the means test under the Access to Justice Act.[215] It comments that "since the abolition of the means test, many who previously would have been privately represented or who chose to represent themselves have applied for public funding."[216] The Department has assumed, therefore, that the volume of orders applied for would drop considerably if a means test were reintroduced but has produced little evidence to support this.

160. It is clear from the breakdown of the estimated savings that they will be due primarily to people being deterred from applying for legal aid, rather than from contributions paid or people failing the means test. The Magistrates' Association has expressed concerns about this:

"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."[217]

161. We do not think these proposals have been properly costed. The Department has produced no convincing evidence demonstrating that reintroducing means testing would result in substantial cost savings, particularly because they have failed to consider the downstream impact on the Court Service. In view of past experience we see no evidence to suggest that these proposals will save significant funds unless they do so by deterring sufficient numbers of people from applying for legal aid. Even if they did, they would not be desirable to deter people from applying for legal aid if they are eligible.

Other concerns

Human rights implications

162. A number of international human rights instruments provide for a defendant's right to free or subsidised legal representation in certain circumstances. The major principle underlying these obligations is to ensure fair trials for defendants and, in particular, equality of arms between the prosecution and defence:

"One of the most prohibitive barriers to access to court is the cost of legal services. Equality before the courts clearly requires equal access regardless of means. The availability of legal aid is therefore clearly relevant to the question of whether a state satisfies the international guarantee to a fair hearing."[218]

163. As mentioned above, depending on how they are implemented, these proposals could contravene the rights under Article 6(3)(c) of the European Convention on Human Rights which provides:

"Everyone charged with a criminal offence has the following minimum rights: … (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require."

164. Many of our witnesses were reluctant to comment on the likelihood of this right being breached by these proposals, primarily on the basis that much of their detail remains unclear. Mr Justice Richards, however, told us that he was concerned:

"For my part, as an Administrative Court judge, in one of my capacities, I see judicial review applications at the moment in relation to refusals of legal aid on the civil side by the Legal Services Commission. There the criteria are different and the number of cases is relatively small. If there were not an adequate role for the court in decision-making in relation to criminal legal aid and refusals were to occur, I do foresee a significant growth in judicial review applications contending that there had been an unreasonable application of the interests of justice test and that the result was that there was a denial of the defendant's right under Article 6(3)(c) … of the European Convention on Human Rights."[219]

165. When asked about the human rights implications of the proposals, the Minister told us that:

"I think it is important to remember that across Europe, where European countries obviously want to ensure their Article 6 rights, many countries effectively have a pro bono system for satisfying those rights… Article 6 rights do not prescribe the right to legal aid. That is very much the historic British interpretation of that. So I am satisfied that this scheme is well within our human rights obligations."[220]

The Minister's comment about satisfying Article 6(3)(c) by means of pro bono system for legal representation is misleading. The Department has made no proposal that legal representation should be made available in this way. The scheme which the UK has historically adopted to satisfy this human rights requirement has been legal aid and this must ensure that legal representation is available to those who cannot afford to pay their own legal costs.

Shrinking number of criminal defence solicitors

166. It is important that these proposals do not reduce the number of lawyers who are willing to undertake legally-aided work. The LSC commented in their 2002/03 Annual Report that they:

"are concerned that in some rural areas and in a number of towns [criminal legal aid] coverage is reaching a point where, if existing contracted suppliers ceased to provide services, it would become increasingly difficult for us to maintain coverage at the level we consider necessary."[221]

167. Despite this, the Partial Regulatory Impact Assessment contains the statement that:

"It is not possible to state definitively that there will be no impact upon the viability of solicitor's firms—this would depend on the proportion of their income that is derived from publicly funded work and how reliant the firm is on publicly funded Criminal Defence Service work in particular. It is possible that the changes could result in some firms abandoning publicly funded work (and switching instead to work with private clients). It is more likely that solicitor firms doing a range of other work and a relatively small amount of criminal work will make this decision rather than larger specialist firms. This may result in a reduction of supply in some areas."[222]

The Department does not appear to have properly engaged with the profession's concerns. In correspondence with the Committee in respect of the Departmental Annual Report, it commented that:

"As with civil contracts, if a shortfall were to occur in a particular area, the LSC would identify the reasons, then arrangements would be made to cover such a shortfall by bringing in suppliers from other areas, or by alternative ways of delivering services, such as outreach or telephone advice. In the case of the CDS, the Commission also has the flexibility to open new Public Defender Service offices if cover in a particular area were to collapse, though this is very much a last resort."[223]

168. A number of witnesses have told us that the current proposals could lead to a reduction in the availability of solicitors willing to undertake legally-aided criminal work. Evlynne Gilvarry of the Law Society commented:

"We have great concerns that the bureaucracy attached to the proposals to introduce the means test would cause a number of solicitors to consider that they could no longer continue to do criminal legal aid work."[224]

She later told us that "the real worry is that new entrants are not taking up this work, and they certainly will not be encouraged to take it up if they have to sign up to a regime that

involves an awful lot more bureaucracy."[225]

169. The LSC expressed the belief that the proposals will allow solicitors to undertake more private client work, which it expects solicitors would welcome.[226] It is surprising that the Department accepted this as a positive step, since where a defendant is acquitted, he would be entitled to the repayment of his costs from Central Funds at the much higher private rate. Nonetheless, Evlynne Gilvarry, who appeared on behalf of the Law Society, commented that this 'benefit' is in any event extremely unlikely to accrue to the professions indicating that:

"I honestly do not think there will be a lot of extra private client work arising from these. There will be possibly a number of people who will not qualify for legal aid. Whether they will be able to afford to pay for it privately is an unknown question. I somehow doubt it."[227]

Ms Cousins added:

"Perhaps I can help just a little on that. I run a criminal practice in a busy city centre. I do not have a client account, I take no money whatsoever from anybody, and this change would not make me do it because the people who I service would not be in a position to pay, even if it is the £34 that is being talked about. From my point of view, it will not change the work that I do at all."[228]

170. We are concerned that the Department may not have conducted sufficient analysis to judge the impact of these proposals in relation to the Human Rights Act. In evidence the Minister seemed broadly dismissive of any concerns, yet if there were to be a significant growth in judicial review applications where defendants were refused legal aid, as suggested by the judiciary, this could have substantial and unwelcome cost implications. Furthermore consideration needs to be given to the supply of solicitors conducting Criminal Defence Service work. If these proposals were to lead to a reduction in provision, it is important that the Department recognises the difficulties which could result.

147 Draft CDS Bill, para 14 Back

148 ibid, para 18 Back

149 ibid, para 2 Back

150 Explanatory Notes to the Access to Justice Act 1999, paras 30-31. In 1997/98 the value of contributions paid was £6.2 million and the direct cost of assessing and collecting contributions was approximately £5 million Back

151 Draft CDS Bill, para 7 Back

152 ibid, para 8. This is also cited in the Explanatory Notes to the Access to Justice Act 1999, paras 30-31 Back

153 'Targeting and Access to Justice: An introduction to Legal Aid Reform in England and Wales', Pascoe Pleasence delivered at the Pan Pacific Legal Aid Conference, Tokyo in December 2001 Back

154 Ev 45, para 8 Back

155 Criminal Legal Aid Means Testing in the Magistrates' Courts, Thirteenth Report of the Committee of Public Accounts, Session 1997-98, HC 416 Back

156 Ev 65 and 66, para 11 Back

157 Ev 55, para 2.2 Back

158 Ev 52, para 6 Back