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
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