CHAPTER 6: LEGAL ADVICE, LEGAL AID AND
EXPERT EVIDENCE
200. For Requested People to be able to make
full and fair use of the extradition process they must have adequate
legal advice, have access to legal aid and be able to make use
of appropriate expert evidence. These three factors are therefore
linked.
Legal advice
201. Witnesses were generally complimentary of
specialist extradition solicitors and barristers. However, concern
was raised about the duty solicitor rota which provides legal
advice to Requested People who do not have access to a lawyer
of their own. Whilst it is a duty rota specifically for extradition
work, the only criterion for joining it is to declare oneself
able to carry out the work; there is no assessment or qualification
(see Box 9).
202. This may lead to representation by a lawyer
with no experience of extradition law, despite the weight of evidence
that extradition legislation and case law is niche and complex.[216]
Liberty said that:
"Large numbers of people subject to extradition
requests cannot afford a lawyer and so are represented by one
of hundreds of duty solicitors signed up to the extradition rota
at Westminster Magistrates' Court. However, the majority of individual
solicitors have never conducted an extradition case before …
the 2003 Act is immensely complex and has generated a vast amount
of case law."[217]
203. There was a concern that lack of expertise
could result in poor quality advice to vulnerable individuals.
Jago Russell said that Fair Trials International saw "numerous
cases" where Requested People received poor representation
at the initial hearing.[218]
204. The duty solicitor role is an important
one. Judge Riddle said that his court was "enormously reliant
on our duty solicitors."[219]
At the initial hearing the Requested Person must decide whether
to contest extradition or not. This is clearly a significant decision
requiring reliable advice. It may well be in the best interests
of the Requested Person to return to the Issuing State rather
than enduring the hardships of a full extradition hearing.[220]
There was also concern that, if inadequate advice was given at
the early stages of proceedings, relevant issues might not be
raised at the appropriate point. Jago Russell gave an example
of a Polish man whose extradition was discharged on Article 8
grounds at appeal "because it was discovered that he was
the sole carer for a very severely disabled daughter".
This had not been raised in earlier proceedings because "the
duty solicitor, who was not an expert in extradition, had not
even noted that fact."[221]
205. Despite the evidence from some witnesses,
the extent to which the rota arrangements caused problems in practice
was not clear. Judge Riddle reported that he had only received
two complaints regarding duty solicitors in four years.[222]
206. At present, Westminster Magistrates' Court
provides training for duty solicitors, though this is not compulsory.
Judge Riddle thought it would not be "very difficult or very
expensive for duty solicitors new to the rota to have the ticket."[223]
207. The MoJ did not believe there to be a serious
problem with the current process of self-certification and opposed
a ticketing system on the grounds of cost. Hugh Barrett, Director
of Legal Aid Commissioning and Strategy at the Ministry of Justice,
said:
"I am not completely convinced that is something
that we would want to do in this area, simply because of an issue
of cost. Putting in place a ticketing system, mandatory training,
examination and potentially an appeal for people who fail will
be a costly process."[224] Box
9: Duty solicitor rota and "ticketing"
| All magistrates' courts run a duty solicitor scheme that permits appointed solicitors to represent defendants at the first magistrates' court appearance if they do not have, or have not yet contacted, their own solicitor. To become a duty solicitor, a solicitor must submit a portfolio of some 25 cases dealt with at court and undertake a live-recorded exercise of a first appearance with an actor playing the defendant and the examiner watching and recording the live session. This duty solicitor qualification is called the Criminal Law Accreditation Scheme.
In addition to the general duty rota, Westminster Magistrates' Court has introduced a specialist extradition rota for duty solicitors permitted to represent defendants at the first appearance in extradition proceedings. The appointment simply requires that an existing duty solicitor ask to be put on the specialist extradition duty rota. This is a process of self-certification, without needing to demonstrate experience or expertise in the field. This specialist duty scheme has seen over 400 solicitors appointed to it—how many of these ultimately take extradition cases is unclear.
In recognition of the peculiarities and complexities of extradition law, other parties in the extradition process must be certified as specialist practitioners. For example, appointment to the CPS's expert panel of extradition prosecution Counsel involves a formal competition. Similarly, to be appointed as an extradition judge, a District Judge must first undertake a period of shadowing and approval. The process whereby a District Judge is appointed to undertake extradition casework is sometimes referred to as "ticketing".
In other areas of law, such as asylum and immigration, duty solicitors are required to undergo an externally assessed and accredited "ticketing" process before being added to the rota.
|
208. Extradition is a complex area of law. No
one should appear before the courts at any stage in the process
without access to appropriately specialist legal representation.
We recommend that a ticketing system be introduced to manage
access to the duty rota in order to ensure proper expertise is
available from the earliest point in proceedings to help the Requested
Person and the courts. The Government should make the necessary
arrangements to require this. (Recommendation 9)
Legal aid
209. Legal aid is a contribution by the state
towards the cost of legal advice,
family mediation and representation in court. Means testing is
an assessment of whether an individual meets stipulated criteria
and is therefore eligible for state assistance. In England, Wales
and Scotland legal aid for extradition cases is means tested.
This process is administered by the Legal Aid Agency (LAA) in
England and Wales. In Scotland, legal aid is a devolved matter
and the process is administered by the Scottish Legal Aid Board
(SLAB). Means testing for extradition cases is not in operation
in Northern Ireland.
210. The Baker Review was critical of the impact
of means testing for legal aid in extradition cases. It recommended
that "careful but urgent consideration, looking at both the
financial implications and the interests of justice" should
be given "to reintroducing non means-tested legal aid for
extradition proceedings in England, Wales and Scotland."[225]
A number of witnesses to our inquiry also called for the removal
of means testing.
COST-BENEFIT CONSIDERATIONS
211. Sir Scott Baker told us that he remained
of the view that non-means tested legal aid would overall "create
a saving, as well as facilitate the administration of justice."[226]
It was for this reason that his review had called for a cost-benefit
analysis.
212. Other witnesses agreed with Sir Scott
Baker's assessment that savings could be made. Reductions in the
number of individuals held in custody and adjourned proceedings
were cited as areas of potential savings. Edward Grange and Rebecca
Niblock said that granting legal aid irrespective of means "would
curtail delays in the system and save court time through avoiding
wasted hearings and … prolonged periods in custody at the
State's expense."[227]
213. The Office of the Chief Magistrate took
a similar view:
"Between February-July 2014 more than 11
cases listed for final hearings were ineffective as a result of
delays caused by the LAA. The cost of convening a court and ensuring
resources are in place for a final hearing cannot be mitigated
by any perceived savings to the legal aid bill".[228]
214. In its response to the Baker Review, the
Government rejected the report's recommendation. It conducted
a high-level cost-benefit analysis[229]
into the question and concluded that it did not consider that
"the business case to reintroduce non-means tested legal
aid for extradition proceedings has been made out".[230]
See Table 4 for a summary of the estimates used in the analysis. Table
4: Estimate Annual Costs & Savings Table
| Cost Type
| Annual Increase in Potential Costs
| Annual Potential Savings
|
| Criminal legal aid costs | £450,000
| |
| Remand places | | £100,000 to £550,000
|
| Claims from Central Funds |
| £100,000 |
| Courts | | £20,000 to £40,000
|
| CPS | | £20,000 to £40,000
|
| Total | £450,000
| £250,000 to £750,000
|
Source: Baker Review, Appendix F, pp 477-78
215. The MoJ said that any potential saving would
be difficult to realise and would not necessarily result in a
"cash saving". Hilda Massey, Deputy Director Legal Aid
Policy at the Ministry of Justice, told us:
"the costbenefit analysis is inconclusive
in terms of whether or not there are savings to be made when you
weigh up both sides of the argument. Certainly it is easier to
see what the costs are to Government than how you might realise
those savings, and when you are considering legal aid in the round
and the context of the fiscal environment that we are working
in currently, Ministers take the view that the costbenefit
analysis is not sufficiently proven to strongly support making
an exception in this case."[231]
LEGAL AID APPLICATION PROCESS
216. The majority of applications for legal aid
by people facing extradition are successful. The Government told
us that this success rate is "in the region of 94%".[232]
217. However, in the evidence we received concerns
were not based on what proportion of people ultimately received
legal aid, but the length of time taken for an award to be made.
Many Requested People find it difficult to satisfy the documentary
requirements of the LAA. Many are migrant workers and are more
likely to be self-employed or work cash-in-hand and therefore,
according to Jago Russell, "find it incredibly difficult
to get the information together to satisfy a means test."[233]
The Office of the Chief Magistrate also described this problem:
"The majority of defendants are either in
casual work or between employment and very few have records. Language
barriers and personal circumstances will often impact on the ability
of defendants satisfying the strict requirements of Legal Services
Commission regulations, which are simply too dogmatic and fail
to adopt a practical approach."[234]
218. This problem did not affect those who were
remanded in custody during the extradition process. In such cases
the Requested Person could self-certify and there was no "requirement
to provide supporting evidence"[235]
when applying for legal aid.
219. The LAA are part-way through introducing
an e-form to the legal aid application process. Hugh Barrett said
that where the e-form had been introduced there had been a 50%
reduction in the number of forms that "ping pong back and
forth between the Legal Aid Agency and the solicitors firms who
are applying for legal aid."[236]
DELAYS TO COURT PROCEEDINGS
220. Under the Extradition Act 2003 the timeframe
for commencing extradition proceedings depends on whether the
case falls under Part 1 or Part 2 of the Act.
221. In Part 1 cases the permitted period between
arrest and the first substantive hearing is 21 days.[237]
Part 1 of the Act transposes the Framework Decision on the European
Arrest Warrant (EAW) into UK law. The Framework Decision states
that an EAW should be executed as a "matter of urgency"[238]
and the final decision taken within 60 days in those cases in
which the Requested Person does not consent to extradition.[239]
222. In Part 2 cases the Act states that the
first substantive hearing must be no more than two months after
the initial hearing.[240]
223. Several witnesses said that the legal aid
application process was causing extradition cases to be routinely
delayed. Daniel Sternberg told us that:
"The real problem with legal aid is getting
it in the first place. That is where the real delay is. I have
cases—both prosecuting and defending—where cases are
fixed and then taken out many times because the defendant does
not have legal aid."[241]
224. As a consequence, the courts were unable
to ensure that EAW proceedings commenced within the 21 days stipulated.
Sheriff Maciver of the Edinburgh Sheriff Court said that it was
"extremely rare for a hearing to take place within the 21
day period and delays as a direct result of legal aid issues are
as inevitable as they are undesirable."[242]
225. The issue appeared to be even more acute
in the Westminster Magistrates' Court. Judge Riddle said, "We
faithfully tried to stick to 21 days until earlier this year [2014]
when it became absolutely obvious that all we were doing was adjourning
for 21 days and then adjourning again." To address the situation
the Court had "deliberately built in a delay in hearing these
cases, so that when a defendant appears in front of us we can
say, 'You have had three months to sort out your funding and we
are going to go ahead'".[243]
226. The three month delay in commencing extradition
proceedings contravenes the time limits set-out in the Framework
Decision on the EAW.[244]
In relation to the UK the European Commission's principal concern
was delays in dealing with certain EAWs. Olivier Tell, Head of
Unit, Procedural Criminal Law at the European Commission, told
us, "only in exceptional cases and where there is no consent
by the person concerned to be surrendered, the surrender may last
as long as 90 days." [245]
227. We did not receive direct evidence as to
the impact of delays in court proceedings on Part 2 cases. However,
it seems reasonable to infer, if there is routinely a delay of
three months between first appearance and the commencement of
substantive proceedings, a final decision might not be delivered
within the 60 days stipulated in the 2003 Act.
228. Beyond the issues of cost to the state,
delays in court proceedings draw out the extradition process for
the Requested Person. For those not granted bail and held in pre-trial
detention this can mean more time spent in custody. Judge Riddle
said, "there are undoubtedly people in custody longer than
might have been the case."[246]
229. Factors aside from legal aid could result
in delays to court proceedings. Hugh Barrett gave the example
of delays in obtaining expert evidence and cautioned, "we
should not see reducing the period for legal aid as automatically
going to mean that you are going to meet the overall timescale."[247]
230. The Lord Chancellor said the three
month delay in proceedings at Westminster Magistrates' Court was
"disproportionate" and a "a source of considerable
disquiet that legal aid may routinely be presented as a major
reason for a failure to meet such deadlines". He also noted
that the LAA was keen to work with the Court so that "applications
posing the greatest risk for delay can be flagged at the earliest
opportunity whilst those where no delay is expected can be listed
much more quickly without the need for an automatic three month
delay."[248]
EXTRADITION AS A PARTICULAR CASE
231. Some witnesses said that an exception to
the means testing rules ought to be made for extradition law because
it was fundamentally different to other areas of criminal law.
Michael Evans told us, "Extradition should not be means tested
in terms of legal aid. It is interests of justice tested, and
it passes that because it is agreed that it is a breach of your
human rights in a sense."[249]
232. The complexity of extradition law was also
cited as justification for making an exception to the legal aid
rules. Anand Doobay spoke of extradition being a particularly
"technical process" which meant that "there are
all sorts of difficulties about having unrepresented defendants
going through the magistrates' court process."[250]
This was a point also picked up by Judge Riddle:
"Our basic concern is fairness. It is uncomfortable
for us, as judges, to have an unrepresented person, who probably
does not speak English, who may not have been in this country
very long, alone in court with us with no one to help them but
an interpreter."[251]
233. The MoJ rejected the idea of making extradition
a "special case". Hilda Massey said:
"[The] risk, if an exception is made, is
there will be a question of both consistency with the rest of
the legal aid system and also a question of whether or not that
then opens the door to claims being made that exceptions should
be made elsewhere."[252]
234. Instead of making extradition a "special
case" the MoJ believed "the right solution is to make
the process work more efficiently and more effectively."[253]
DUAL REPRESENTATION
235. Dual representation refers to the practice
of having a lawyer representing the Requested Person in the Issuing
State as well as in the UK.
236. A number of witnesses spoke of the importance
of representation in the Issuing State.[254]
This was particularly the case in relation to minor offences,
outstanding fines or breaches of probation conditions where discussions
between a lawyer and the authorities in the Issuing State could
find simpler resolutions to matters than extradition, such as
paying an outstanding fine. Edward Grange and Rebecca Niblock
said that dual representation could be the most effective way
of resisting many EAWs and that they advised all of their clients
"to get a lawyer in the Requesting State as soon as possible."[255]
Michael Evans offered similar advice:
"we always advise people straightaway, 'If
you can, get a lawyer in the requesting state'—the lawyer
will go to the court and say, 'He is in the UK. He is living a
good life. He can pay the fine. Is that okay?' 'Yes, fine.' Pay
the fine; warrant disappears."[256]
237. A provision on the right of Requested Persons
to receive legal aid in both states was included in the European
Commission's Directive on access to provisional legal aid.[257]
In July 2014, the Government confirmed its decision not to opt
in to this proposal.
238. Jodie Blackstock told us that dual representation
"is possible on legal aid—although tortuous, I imagine—to
make these arguments to obtain legal assistance in the Issuing
State".[258]
239. We are concerned that the legal aid application
process is causing delays to court proceedings. It is not acceptable
that individuals are kept in any unnecessary pre-trial detention,
from either their own perspective or that of the state. Delays
to the extradition process are contrary to the interests of justice
and place an additional burden on the taxpayer.
240. We regret the fact that the district
judges at Westminster Magistrates' Court have found it necessary
to insert a three month delay into the system. In the light of
the Lord Chancellor's comments and the concern expressed
by the European Commission, we hope that the Court will keep this
automatic delay under review, that the Government will take the
necessary steps to eliminate it and that it will therefore be
removed at the earliest opportunity.
241. Extradition proceedings are different to
other types of criminal law in not pronouncing on individuals'
guilt, but instead deciding whether or not they should be sent
to other jurisdictions to stand trial. In contrast to domestic
criminal prosecutions, the court proceedings cannot be revisited
in this country once the person has been extradited.
242. Given the weight of evidence put before
the Committee and the wide range of estimated costs and savings
used in the analysis, we believe the high-level cost-benefit
analysis provided to the Baker Review is neither a sufficient
nor a credible response to the concerns raised about means testing
for legal aid. The Government should conduct and publish a full
and detailed cost-benefit analysis. In our view, unless a cost-benefit
analysis very clearly favours retaining means testing, the interests
of justice should take priority. (Recommendation 10)
243. This more detailed cost-benefit analysis
should include consideration of the savings that could be made
by matters being resolved by lawyers in the Issuing State. (Recommendation
11)
244. It may be that automatic legal aid, followed
by a period of means testing using the e-form, would offer a more
balanced system, one which removes legal aid if the higher earnings
threshold is met. Alternatively, additional funding for dual representation
could be offset by fewer proceedings in the UK. Again, if the
cost-benefit is balanced, the interests of justice ought to take
priority. (Recommendation 12)
245. In the meantime, the Government should,
as a matter of urgency, pursue solutions, such as the e-form,
to make the process of applying for legal aid work more efficiently
and effectively. (Recommendation 13)
Expert evidence
246. Solicitors firms can make an application
to the LAA for permission to engage an expert witness, for example
to provide evidence on prison conditions in the Issuing State.
The LAA considers cases and makes a judgment on the rates charged
by the requested witness.
247. In the experience of Judge Arbuthnot, a
decision on an application could take some time, with the court
sometimes having "to prod the legal aid fund."[259]
The MoJ told us that in 90% of cases this judgment is delivered
within two weeks.[260]
248. Some witnesses told us that there was a
problem either getting court time to commission expert witnesses
(thereby prolonging the process) or enough money to afford the
right expert. Daniel Sternberg said, "Getting authority for
an expert in itself is something that happens fairly frequently,
but the problem is finding an expert who is willing to work for
legal aid rates."[261]
249. Opinion was divided as to the scale of the
problem. Rebecca Niblock said that she had never been unable to
engage an expert, but could "think of numerous cases where
we have not been able to instruct the expert that we would have
instructed had we been privately funded."[262]
250. Ben Keith told us it was "sometimes
the quality of expert that is difficult to find for those rates"
though he added "Some of the very best experts will work
for legal aid rates." He also said, "once you have legal
aid, and you have enough time, you will be able to find a suitable
academic to assist you."[263]
Mark Summers QC told us he had "never had any difficulty
either identifying appropriate experts or obtaining authority
to instruct them."[264]
251. Others thought there was only a problem
where counsel wished to adduce more expert evidence than courts
thought necessary and that the courts had a "very keen judgment"
about which arguments were real and which were "specious
arguments."[265]
Where they were satisfied that there were real arguments to be
made, the courts understood the need to get appropriate expert
evidence and would allow "sufficient time for proper evidence
to be obtained".[266]
In the experience of Sheriff Maciver it was "the extent of
inquiry and the number of experts that can sometimes cause a problem
and lead to legal aid being refused."[267]
252. Expert evidence is clearly necessary in
some cases. From the submissions we have received we have been
persuaded that it is possible for the necessary expert evidence
to be obtained on legal aid.
216 See for example, Q36 , written evidence from
the Criminal Bar Association (EXL0055) and Kaim Todner Solicitors
Ltd (EXL0057). Back
217
Written evidence from Liberty (EXL0066) Back
218
Q34 (Jago Russell) Back
219
Q133 Back
220
QQ133-4 (Senior District Judge Riddle) Back
221
Q34 (Jago Russell); see also Q180 (Michael Evans). Back
222
Q133 Back
223
Ibid. Back
224
Q146 Back
225
The Baker Review, p 17 Back
226
Q2 (Sir Scott Baker) Back
227
Written evidence from Edward Grange and Rebecca Niblock (EXL0035) Back
228
Written evidence from the Office of the Chief Magistrate (EXL0043) Back
229
The analysis was published as Appendix F to the Baker Review. Back
230
The Government Response to the Baker Review, p 6 Back
231
Q147 (Hilda Massey) Back
232
Q149 (Hilda Massey) Back
233
Q27 (Jago Russell ) Back
234
Written evidence from the Office of the Chief Magistrate (EXL0043) Back
235
Q145 (Hugh Barrett) Back
236
Q149 (Hugh Barrett) Back
237
Extradition Act 2003, section 8(4) Back
238
Framework Decision on the European Arrest Warrant, 2002/584/JHA Back
239
Framework Decision on the European Arrest Warrant, 2002/584/JHA,
Article 17(3) Back
240
Extradition Act 2003, section 75(2) Back
241
Q110 (Daniel Sternberg) Back
242
Written evidence from Sheriff Maciver (EXL0064) Back
243
Q135 (Senior District Judge Riddle) Back
244
Framework Decision the European Arrest Warrant, 2002/584/JHA,
Article 17(3) Back
245
Q221 Back
246
Q135 (Senior District Judge Riddle) Back
247
Q150 (Hugh Barrett) Back
248
Written evidence from Rt Hon. Chris Grayling MP, Lord Chancellor
(EXL0090) Back
249
Q153 (Michael Evans) Back
250
Q2 (Anand Doobay) Back
251
Q135 (Senior District Judge Riddle) Back
252
Q149 (Hilda Massey) Back
253
Q150 (Hilda Massey) Back
254
See Q104 (Rebecca Niblock), Q179 (Graham Mitchell),
Q179 (Michael Evans), and Q179 (Jodie Blackstock) Back
255
Q104 (Rebecca Niblock) Back
256
Q179 (Michael Evans) Back
257
Proposal for a directive of the European Parliament and of the
Council on provisional legal aid for suspects or accused persons
deprived of liberty and legal aid in European Arrest Warrant proceedings,
COM(2013) 824 Back
258
Q179 (Jodie Blackstock) Back
259
Q137 (Deputy Senior District Judge Arbuthnot) Back
260
Q151 (Hugh Barratt) Back
261
Q110 (Daniel Sternberg) Back
262
Q104 (Rebecca Niblock) Back
263
Q110 (Ben Keith) Back
264
Q122 (Mark Summers QC) Back
265
Q107 (Paul Garlick QC) Back
266
Ibid. Back
267
Q122 (Sheriff Maciver) Back
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