7 Conclusion
183. While we support the overall aims of controlling
the rising Criminal Defence Service expenditure and ensuring that
defendants who can afford to pay their own legal costs do so,
we consider that the current proposals have failed to address
a number of important questions and would give rise to serious
practical problems. As a next step towards preparing a bill to
be put before Parliament, the Government will need to answer the
following questions:
- How do these proposals address
the major drivers of Criminal Defence Service expenditure?
- How will the Government ensure that the downstream
impacts of other policies on the Criminal Defence Service budget
are taken into account?
- Why are the Legal Services Commission and
solicitors better placed to apply the interests of justice test
than the courts; and how could any conflicts of interest arising
from the transfer be avoided?
- What evidence is there to substantiate the
claims that magistrates' courts have been inconsistent or over-generous
in applying the 'interests of justice' test; and what impact will
the transfer have on the volume of representation orders granted
and on Criminal Defence Service expenditure?
- Are these proposals compliant with Article
6(1) and 6(3)(c) of the European Convention on Human Rights?
- How can means testing be conducted in a way
that ensures that, whilst decisions are based on acceptable evidence
as to financial circumstances, they do not cause delay to court
hearings?
- Will any financial savings produced by means
testing be outweighed by the likely downstream costs in terms
of bureaucracy and delay?
- What impact will the current proposals have
on other initiatives designed to increase the efficiency of the
Criminal Justice System?
- How many defendants, who would otherwise be
eligible for legal aid, will be deterred from applying for legal
aid as a result of the reintroduction of means testing; and how
will an increase in the number of unrepresented defendants impact
on defendants' comprehension of proceedings and even the way they
plead?
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