Select Committee on Constitutional Affairs Fifth Report


Appendix

Correspondence between Rt Hon Jean Corston MP, Chair, Joint Committee on Human Rights and Rt Hon Alan Beith MP, Chairman of the Constitutional Affairs Committee

Draft Criminal Defence Service Bill

I understand that the Draft Criminal Defence Service Bill, published in May 2004 as part of a Department for Constitutional Affairs (DCA) Consultation Paper, is currently the subject of an inquiry by your Committee. Since the proposals in the Draft Bill raise issues of compliance with the rights protected under the Human Rights Act 1998, I am writing to advise you of the Joint Committee on Human Rights' preliminary views on the Draft Bill. When more detailed legislative proposals are published by the DCA following the conclusion of this consultation exercise, we intend to comment further on the Bill's human rights compatibility.

Transfer of legal aid grant function to the LSC

Under the Draft Bill, as we understand it, the power to grant legal aid would be formally transferred from the courts to the Legal Services Commission (LSC),[244] but in practice would be exercised by individual solicitors with a General Criminal Contract (although this is not provided for on the face of the Draft Bill). The DCA has stated that this measure responds to "evidence that courts have been too favourable to defendants, and certainly inconsistent, in applying the interests of justice test" in the Access to Justice Act 1999.[245] The DCA Consultation Paper notes in particular that there will be "greater control of grant through the Commission issuing binding instructions to solicitors."[246]

We are concerned at the suggestion that a transfer of grant powers to the LSC would be used to facilitate changes in the application of the interests of justice test in the grant of criminal legal aid. Such changes could have implications for the right to free legal assistance in criminal trials under Article 6.3.c ECHR which guarantees the right of a defendant:

"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."

This right must be read in light of the right to fair hearing and to equality of arms between the parties to a case under Article 6.1, and the right to non-discrimination in the application of the Covenant rights, in Article 14.[247] The severity of the penalty the defendant faces, the need to consider complex legal argument and the capacity of the defendant to present the case are factors which must be taken into account in judging whether the interests of justice require legal aid.[248] Where the case raises complex legal questions, or where the offence may carry a sentence of imprisonment, legal aid will almost always be required.[249]

The interests of justice test applied under the 1989 Act closely follows the Article 6.3.c test, and must be interpreted in accordance with Article 6.3.c.[250] Any instructions to solicitors which form the basis of the new scheme would need to have their basis in compliance with Article 6.3.c criteria. In the view of the JCHR, a more restrictive application of the interests of justice test would risk breaches of Article 6.3.c ECHR. Regulations made under the Bill should contain safeguards to ensure protection of Article 6.3.c rights.

Appeals

Rights of appeal from decisions of solicitors on grant of legal aid are not provided for in the Draft Bill. It would therefore appear from the current draft that it is intended that the only right of appeal should be by way of judicial review, possibly following an "internal" appeal from the decision of the solicitor to the LSC (though the Consultation Paper makes no mention of such procedures).

Article 6.1 requires, in cases where civil rights and obligations are determined, a fair hearing before an independent and impartial tribunal. Article 6.1 does not contain any bar to decision making by administrative bodies, but since such bodies cannot be considered to provide an independent and impartial tribunal such as to satisfy Article 6, it requires that such decisions be subject to some form of review by a body that does meet these criteria. Where the decision is primarily one of policy then appeal by way of judicial review is likely to be sufficient to satisfy Article 6.[251] Where, however, the decision directly concerns an individual's personal or economic rights, a full appeal on both the facts and the law is required.[252] Decisions on the grant of legal aid fall into this category. Moreover, the Strasbourg court has held that Article 6.3.c itself requires appeal to an independent tribunal.[253] In our view, the absence of statutory provision for a full appeal from decisions of the LSC (or solicitors acting under the authority of the LSC) to an independent court or tribunal is likely to breach Article 6.1 and Article 6.3.c ECHR in failing to provide a sufficient appeal to an independent and impartial tribunal.

Means testing

The Consultation Paper proposes three alternative models for implementation of a means test, which are not, at present, contained on the face of the Bill, but which are to be provided for in secondary legislation.

There is no provision of human rights law which would prevent the introduction of means testing. Article 6.3.c ECHR permits, in principle, the use of means testing to determine eligibility for criminal legal aid. It also permits a State to require contributions from a defendant to the cost of the defence, where this is within the defendant's means, and where the level of contribution is not arbitrary or unreasonable.[254] Such a scheme must, however, be structured so as to ensure the provision of legal aid to those who cannot afford representation.

Any means testing scheme must also meet the standards of non-discrimination in Article 14, read in conjunction with Article 6.3.c and Article 6.1, and ensure that payment or contributions are required of defendants on terms of equality. The principle of non-discrimination in Article 14 requires not only that like cases be treated alike but that different cases be treated differently.[255] The means test model used should therefore not be a blunt instrument that precludes consideration of an individual's particular circumstances. The JCHR notes that any means testing scheme introduced under the Bill will need to allow decision making on payments or contributions to be sensitive to individual circumstances, in order to ensure compliance with the Convention rights in the application of the test.

Trial within a reasonable time

We note that concerns have been voiced in evidence to your Committee that the requirement for solicitors to conduct detailed inquiries into what may often be complex matters of income and capital of a defendant may delay proceedings, and undermine the gains in the efficient processing of cases which are hoped for under new case management systems.[256] Although any such delays are likely to be relatively short and would be unlikely in themselves to breach the Article 6.1 requirement of trial within a reasonable time, there must be concern that they could combine with other delays in the system (including, potentially, appeals from decisions of solicitors or the LSC on complex calculations of income) to result in delays that would breach Article 6.1. The JCHR notes that Article 6.1 ECHR requires any system of means testing to be structured so as not to impair the efficient administration of cases, in order to best ensure compliance with the right to trial within a reasonable time under.

I hope that these observations will be of assistance to your Committee in its consideration of the Draft Bill. I am copying this letter to David Lammy MP.

Rt Hon Jean Corston MP

Chair

Joint Committee on Human Rights


244   Clause 1 Back

245   Para. 40 Consultation Paper. The interests of justice test is set out in Schedule 3 para5 of the 1999 Act. It requires consideration of whether the defendant is at risk of imprisonment; whether the proceedings involve a substantial question of law; whether the defendant is likely to understand the proceedings; whether the proceedings may require the cross-examination of witnesses and whether representation of the defendant is required in the interests of any other person Back

246   Para. 41 Back

247   These rights are guaranteed in similar terms in Article 14 ICCPR Back

248   Benham v UK 22 EHRR 293; Maxwell v UK 19 EHRR 97 Back

249   ibid Back

250   s.3 HRA Back

251   R (Alconbury Developments) v Secretary of State for the Environment [2001] UKHL 23; Holding and Barnes v UK App No 2352/02 Back

252   Albert and Le Compte v Belgium 5 EHRR 533; Bryan v UK 21 EHRR 342; W v UK 10 EHRR 29 Back

253   In Granger v UK 12 EHRR 469 it was held that in order to satisfy Article 6.3.c read in conjunction with Article 6.1, a decision of the Scottish Law Society's Legal Aid Committee, refusing legal aid to the applicant, should have been open to appeal, including to the High Court of Justiciary which was hearing the proceedings in issue Back

254   Croissant v Germany 25 Sept 1992; Morris v UK App No 38784/97 Back

255   Thlimmenos v Greece 31 EHRR 15 Back

256   CAC Transcript of Oral Evidence, Lord Justice Judge and Mr Justice Richards, Q65-66; Q77 Back


 
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