Evidence submitted by the Legal Action
Group
INTRODUCTION
1. The Legal Action Group (LAG) is a national
charity, established over 30 years, that is committed to improving
access to justice— particularly for the vulnerable and socially
excluded. LAG works with lawyers and advisers to improve standards
and knowledge of social welfare and criminal law amongst practitioners,
by publishing a monthly magazine and legal handbooks and providing
training for lawyers and advisers. We also comment and campaign
extensively on access to justice issues, relating in particular
to the delivery of publicly funded legal services as well as social
welfare and criminal law, the administration of justice and the
tribunal system. LAG does not represent any particular interest
group: our primary concern is with quality and access to justice
for the users and potential users of legal services.
2. LAG disagrees in principle with the proposal
in the draft Criminal Defence Bill to reintroduce a means test
for a grant of representation, with decision-making being transferred
to the Legal Services Commission (LSC). We also have serious concerns
about the practical details of the new scheme's operation, to
the extent that these disclosed by the Department for Constitutional
Affairs (DCA) consultation paper CP 17/04. However, it is not
possible to offer comprehensive comments in this submission, because
the draft Bill only provides a framework and the consultation
paper only sketches out some possible approaches to implementing
the scheme. Much important detail will be dealt with through regulations
and through changes to the Criminal Defence Service (CDS) contract.
3. 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.
Why has there been such a large increase in spending
on criminal legal aid?
4. The extent to which the Legal Services
Commission perceives expenditure on criminal defence work to be
beyond its control was highlighted in its annual report for 2002-03,
and in its corporate plan for 2003-04. In the latter document,
the Commission gave a list of the cost drivers on CDS expenditure
(at paragraph 3.6). This list includes the effect of how criteria
for the grant of representation orders are applied in practice,
but also made reference to the following factors:
— Number of arrests and charges, driven
in turn by crime initiatives and new offences created by legislation.
— Police station interview practices.
— Changes to charging policy.
— Appropriate disclosure of evidence.
— Case listing (which can increase
waiting time or cause multiple court appearances).
— Prison service arrangements for solicitors
visiting remand prisoners.
— Failure by Probation Service and
Youth Offending Teams to prepare reports for hearings.
5. In addition, we would suggest that the
increased use of custodial sentences (leading to greater likelihood
that the "interests of justice" test will be satisfied)
is another factor contributing to the rise in the number of grants
of representation orders. It is also important to recognise that
the CJS "Narrowing the Justice Gap" initiative was designed
with the express intention of increasing the number of defendants
appearing before the courts. We are not aware of any attempt to
cost this initiative in terms of its impact on the legal aid budget.
6. These perceptions on costs drivers are
widely shared by practitioners and by others with an interest
in criminal defence work. We would like to draw the attention
of the Committee to the following example, which illustrates very
clearly how decisions taken elsewhere in the CJS can have an adverse
impact on legal aid expenditure.
7. Earlier this year, the Greater London
Magistrates' Court Authority (GLMCA) decided to replace the wickets
in the doors of court cells with Perspex vision windows. It took
this decision because one of the wickets had been used by a prisoner
as a means of committing suicide. However, the GLMCA did not take
into account the fact that solicitors often conduct interviews
with their clients through the cell wickets; the programme of
work on the cell doors was started before additional interview
rooms had been installed in the courts. As a result, clients'
access to their lawyers was restricted, court hearings were delayed,
and significant extra expense was incurred by the legal aid budget.
After complaints were made, the GLMCA decided to postpone work
on replacing the wickets—but problems remain at the courts
where the wickets have already been replaced.
8. In terms of apparent increase in the
number of representation orders made, we suggest that the available
statistics need very careful scrutiny. For example, there have
been important changes in practice relating to the amendment of
orders—any amendment, in fact, will generate a new legal
aid order. There is also the fact that related orders may be combined
at the point when claims for payment are made.
Do the Government's proposals represent the best
way of controlling rising expenditure on criminal legal aid and
how effective are they likely to be in practice?
9. LAG believes that it is essential for
the Government to recognise the cost drivers within the wider
Criminal Justice System, to quantify their effect on legal aid
expenditure, and to address them appropriately. We do not believe
it is satisfactory for the Department for Constitutional Affairs
to put forward these proposals without the benefit of a more detailed
analysis of the problems or accurate modelling of the options.
We cover this point in more detail in paragraph 3 above. We suggest
that the current proposals will deliver savings that are, at best,
marginal and, at worst, cost neutral because of the consequential
effects of implementing the changes across the criminal justice
system.
How will the re-introduction of a financial eligibility
(means) test affect access to justice?
10. In LAG's view, the means test should
not be reintroduced for representation orders. The interests of
justice test should be the only consideration. There is a strong
possibility of many low-income defendants being unable to produce
sufficient documentary evidence to satisfy the means test. In
some cases, this will be because they are remanded in custody
and so do not have ready access to the personal and financial
documents required as evidence. Of those defendants who are on
bail, many will have chaotic and disordered lifestyles or may
be working outside the formal economy; they, likewise, could have
great difficulty producing the documentary evidence required.
Getting evidence from defendants' partners could also present
enormous difficulties. We are very concerned about the delays
that will be caused as a result of means-testing problems and
the likely consequences for defendants, victims and witnesses.
11. If defendants in these circumstances
are refused legal aid for representation, they are most unlikely
to have the financial resources to pay for this privately. Solicitors'
firms will not have the time or the capacity to continue advising
on a pro bono basis the clients that are deemed ineligible for
public funding. Without the benefit of legal advice, these defendants
may enter an inappropriate guilty plea or, if they plead not guilty,
they will be forced to defend themselves at trial. In either situation,
access to justice will be severely compromised.
12. If the grant of legal aid for representation
were to be subject to possible contributions, there is a risk
that defendants who cannot or will not pay these contributions
will reject the qualified grant of legal aid and attempt to represent
themselves. Once again, access to justice will be compromised.
A further, separate consideration is that court business may well
be slowed down by having to deal with defendants who are unrepresented.
There is a real danger that any savings made in the legal aid
budget will be offset by increased expenditure on running and
administrating the court system.
13. We also believe that there are implications
for access to justice arising from the proposal to devolve decision-making
to solicitors. There is a danger that solicitors will be over-cautious
in administering both the means test and interests of justice
test to avoid the risk of transgressing the contract requirements
of the LSC. The fear of recoupment of fees will, we believe, have
a significant effect on their handling of clients' applications,
especially where eligibility is borderline.
14. In addition, we have major concerns
about the effects of introducing client contributions into the
means-testing scheme. For most solicitors' firms, processing cases
quickly is an important priority if they are to ensure that work
remains profitable. There is a worry that solicitors may be reluctant
to act for defendants where a contribution is involved and will
"cherry-pick" cases where no contribution has to be
paid. Recovering contributions may present enormous practical
difficulties, particularly from clients who have been convicted.
Once someone has been sentenced to imprisonment, recovery will
be almost impossible.
15. In any event, we remain unconvinced
that means testing will deliver many savings. If there are savings
to be made, we believe that these will result from the deterrent
effect of the changes—ie, in putting off defendants from
pursuing applications for legal aid, especially if they know they
cannot produce documentary evidence or have been told that they
face a contribution towards the cost of their own defence. We
do not believe deterrence is an appropriate means of reducing
expenditure on criminal defence services.
How difficult will it be to administer means testing
in criminal cases?
Are solicitors best placed to determine eligibility
for criminal aid to grant help to qualifying clients?
16. We accept that devolving decisions both
on means testing and "interests of justice" to solicitors
may offer some advantages where a client has had several cases
with a particular firm of solicitors, allowing the tests to be
undertaken relatively easily on the basis of prior knowledge about
the client—including any previous convictions.
17. However, we also have concerns about
the proposal to devolve these assessments. 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.
18. Within the present system, the solicitor
incurs no risk in making applications for representation orders
in marginal cases; the court simply rejects them or grants them.
However, under devolved decision-making, the Legal Services Commission
would produce guidance representing their interpretation on how
these tests should be administered; this guidance would be designed
to be contractually binding on contracted suppliers. It is highly
likely that solicitors would be unwilling to bear the risk of
self-granting in marginal cases because of the risk of a file
failing later at audit. As a result of this caution—which
is understandable from the point of view of the solicitor, defendants
who should have qualified for a grant on the basis or means and/or
merits may end up being unrepresented.
19. If there is to be a system of self-grant
by solicitors, then we believe it is of paramount importance for
there to be a right of appeal, either to the Court or to the Legal
Services Commission. At present, if the court refuses public funding,
then an application for review of this decision is made to the
same court. In addition, representations can be made in court
to a District Judge, when an application has previously been refused,
as to why it is in the interests of justice that a defendant should
be given the benefit of public funding.
20. However, even if a right of appeal were
to be included within the proposed new system, it is not clear
to whom unsuccessful applicants are expected to turn for advice
on an appeal. It is unlikely that the solicitor who has just rejected
the application for a representation order would be willing to
advise the client on a pro bono basis—and, in any event,
there would be a clear conflict of interest. It seems that only
alternative would be to allow clients to receive advice from another
firm under Legal Help.
21. On the other hand, if it is suggested
that decisions on the interests of justice test would be retained
by the Legal Services Commission for particular cases, the question
arises as to how, in practical terms, the Commission would ensure
that it keeps pace with the throughput of cases, taking decisions
in a fair and consistent manner, without this process causing
severe bottlenecks in the criminal justice process.
What are the relative advantages and disadvantages
of the three means test models suggested in the Government's consultation
paper?
22. As stated above, we have severe misgivings
about the proposal to re-introduce any means test for representation
orders. All three of the models put forward are likely to result
in defendants who satisfy the merits test being refused legal
aid on the basis of means, yet being unable to afford to pay a
solicitor privately.
23. Models 1 and 3, especially in relation
to contributions from income, will exclude defendants who cannot
afford a one-off payment, possibly amounting to hundreds of pounds—or
even thousands of pounds in relation to Model 3. We are extremely
concerned about the implications of this in terms of Article 6
(3) (c) of the European Convention on Human Rights, which states:
"[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."
24. We also believe that there is a fundamental
unfairness in relation to these two models, in that small differences
in income (of perhaps only one or two pounds) will trigger disproportionately
large contributions. In addition, Model 3 is based on gross household
income, which would be unfavourable to defendants with large numbers
of dependants and/or large housing costs.
25. Model 2, although offering simplicity,
is a very blunt instrument. A defendant with an income only slightly
above the threshold will be excluded completely from legal aid.
Like Model 3, the fact that this Model is based on gross household
income means that no allowance is made for dependants, housing
costs or other essential expenditure.
26. In summary, we believe that there is
an almost unreconcilable tension between the need for means-testing
to be fair to defendants—requiring a sophisticated model
that takes into account all aspects of income and expenditure
within the defendant's household—and the need for simplicity,
allowing the means test to be conducted efficiently within a tight
time frame. We are not convinced that this tension can be resolved.
Should the authority to grant the right to publicly
funded representation be removed from the courts and transferred
to the Legal Services Commission?
27. We accept that at present there are
worries about inconsistency between the decisions taken by different
courts, the suggestion being that this should be resolved in the
interests of fairness and certainty. However, we are surprised
that no concrete evidence has been presented by the DCA in support
of this view.
28. LAG believes that the proposal to transfer
responsibility for decisions on representation orders from the
courts to the LSC raises some important concerns. At present,
the courts—whose overall job it is to ensure that cases
are disposed of in a just manner—are well placed to make
a speedy assessment of whether the "interests of justice"
test are satisfied in any particular case. On the other hand,
the LSC would be disadvantaged by having to familiarise itself
with the facts of the case and the circumstances of the client.
There is also the inevitable tension between the LSC's role as
custodian of the CDS budget and its function in assessing whether
a case satisfies this test.
29. However, if this change were to go ahead
it would be of central importance that the interests of defendants
are properly protected. In particular, it would be important to
do as much as possible to ensure that the "interests of justice"
test is appropriately and consistently employed, and that defendants'
means are assessed accurately and efficiently. We would also recommend
that the transfer of decision-making should first be piloted.
30. There are few complaints about the speed
of the present system. On the whole, the courts make the decision
on applications for representation orders very quickly. If a defendant
is in custody, then the application is generally lodged at the
first hearing and if on bail either just before the hearing or,
as with custody cases, also at the first hearing. Although the
actual certificate may not be forthcoming for a couple of weeks,
there can be telephone confirmation that funding is in place.
We would hope that decision making would not become slower, were
it to be taken away from the courts.
31. However, the proposal in the consultation
paper is that the Legal Services Commission would delegate its
decision-making powers on representation orders to solicitors'
firms. We believe that this would create a number of problems,
which we discuss in our responses to other questions in this submission.
In essence, this would involve extra work on the part of solicitors,
including collection of client contributions; a whole new tier
of administrative work for criminal defence firms; and a degree
of risk that, at a later stage when files are audited by the LSC,
firms would not be paid for work done or have their contract compliance
rating reduced. We believe these factors would deter firms from
taking on cases where clients had not been able to provide proof
of their means, where the client was required to pay a contribution,
or there was an element of doubt about whether the interests of
justice test was satisfied.
Legal Action Group
June 2004
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