Conclusions and recommendations
Introduction
1. Because
the draft Bill does not contain the detail of the current proposals,
which would instead be set out in secondary legislation and in
the General Criminal Contract issued by the Legal Services Commission,
we recommend that prior to the introduction of a Bill a draft
of the secondary legislation should be published for consultation.
The structure of our inquiry and report has been affected by this
lack of detail. Instead of scrutinising a finalised set of proposals,
our inquiry and report have focused on posing questions which
the Government will need to address before introducing a Bill.
(Paragraph 6)
2. We acknowledge
that the rising cost of the Criminal Defence Service must be addressed
and commend the Department for Constitutional Affairs for attempting
to achieve this. We agree with the principle that defendants who
can afford to pay their legal costs should do so. Nevertheless,
the Consultation Paper leaves a number of key questions unanswered
and we are concerned that reintroducing means testing in the ways
proposed could give rise to practical difficulties which outweigh
any cost savings likely to be achieved. (Paragraph 8)
Rising costs of the Criminal Defence Service
3. We
ask the Legal Services Commission to estimate the effects of changes
in times of payments and the introduction of a system of payments
on account on the figures for the cost of Very High Cost Criminal
Cases. (Paragraph 23)
4. We hope that the
Fundamental Legal Aid Review will enable the Department to identify
the major factors which have caused the increase in Criminal Defence
Service expenditure. The financial savings sought by the draft
Bill will only be achieved if initiatives target these major cost
drivers. We are concerned that the current proposals have not
been integrated with the Review. (Paragraph 40)
5. We recommend that
the Department should ensure that initiatives rolled out by other
Departments, especially the Home Office, are properly costed so
that their impact on the Criminal Defence Service budget can be
taken into account. This is an essential feature of 'joined up
Government' and needs to be done so that the Government can consider
the causes of rising costs, rather than merely relying on the
Department to tackle the symptoms. (Paragraph 46)
Transfer of grant of representation
6. Although
we acknowledge the reason for the Department's desire to obtain
greater control of the Criminal Defence Service budget by transferring
responsibility for grant from the courts to the Legal Services
Commission, we consider that the current proposals fail to address
a number of key questions. These include: (Paragraph 87)
- Whether, in practice, the Legal
Services Commission and solicitors are better placed to apply
the interests of justice test than the courts;
- When the test should be applied: if done prior
to the case it may give rise to delays—or if done retrospectively
the question arises of who should bear the risk;
- How conflicts of interest arising from the transfer
from costs to solicitors, which could threaten the interests of
the defendant and/or the envisaged savings to the Criminal Defence
Service, could be avoided;
- What impact the proposals would have on the volume
of representation orders granted or on Criminal Defence Service
expenditure and whether this would outweigh the substantial downstream
costs of the transfer.
7. Given
the importance of the interests of justice test, any change to
its application should be made in a transparent manner, capable
of scrutiny, rather than by means of amendments to the General
Criminal Contract. Even if some courts were applying the test
inappropriately, we see no reason why this could not be rectified
by the Department issuing appropriate guidance to the courts or
by introducing a Bill which would change the wording of the interests
of justice test as set out in the Access to Justice Act. (Paragraph
94)
8. If these proposals
were to be implemented, we consider it essential that there should
be an expeditious right of appeal to the courts or an independent
tribunal and that the courts should be given a fallback power
to grant legal aid, in exceptional circumstances, where the interests
of justice so require. (Paragraph 104)
Means testing
9. 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. (Paragraph 136)
10. 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. (Paragraph 155)
11. 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.
(Paragraph 161)
12. 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. (Paragraph 170)
Other options
13. Over
the course of our inquiry, we have been told by a number of witnesses
that there are better ways of controlling spending on criminal
legal aid than reintroducing means testing and transferring responsibility
for grant. We recommend that the Department should focus more
of its efforts in other areas, such as reducing expenditure on
the most expensive criminal cases, which consume a disproportionate
amount of the Criminal Defence Service budget. We recognise that
the Department has made some progress in this area, but believe
that further savings could be found. Greater use of Recovery of
Defence Costs Orders, including in the magistrates' courts could
also be considered. In addition, initiatives which could create
savings to the overall cost of the Criminal Justice System by,
for example, effective trial management, should be pursued and
supported. (Paragraph 182)
Conclusion
14. 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: (Paragraph
183)
· 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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