Crown Court Means Testing
A Consultation Paper
Response from:
Criminal Law Solicitors’ Association
Suite 2 Level 6
New England House
New England Street
Brighton, BN1 4GH
DX 2740 Brighton
Email:
Tel: 01273 676725
EXECUTIVE SUMMARY OF OUR POSITION
· The CLSA recognises that Legal Aid Resources are finite. As such it is right that very wealthy Defendants who turn out to be guilty of the offences charged should not have their legal costs paid by the State.
· We are not convinced that a contributory model rather than an “in or out” model is preferable in the Crown Court. Past experience has shown that enforcing contributions towards Legal Aid is extremely costly and contributory schemes were scrapped in the past because the collection and enforcement procedures exceeded the sums collected. More research is required to determine the most cost effective scheme.
· We consider that the income and capital thresholds proposed are set far too low. In balancing the costs of collection against the funds recovered it will be those cases closest to the margins between “free” legal aid and the proposed contributory scheme that will pose most of the problems for the least reward. Setting the income and capital levels at a realistical level will be more efficient and minimise disruption and delay to the Court processes.
· We believe that there should be a minimum threshold of capital and income below which Legal Aid should be non contributory. There should also be an upper threshold above which legal aid should not be available.
· We strongly suggest that if the system is to be contributory then contributions should not be enforced until the conclusion of the proceedings. It is unjust to obtain contributions from those who are ultimately acquitted and it will be administratively burdensome to collect and then repay money. By only enforcing against convicted Defendants the collecting authority will significantly reduce its workload and costs. There will be many instances where the problems caused to the recipient of legal aid by having to find contributions during the life of the case will impinge on their ability to assist to prepare the case and in extreme cases due to the likely powers of enforcement some people may decide that the impact upon them and their family of legal aid does not warrant continued representation.
· The proposal not to revoke a Representation Order by reason of non payment of a contribution does not adequately address the risk of a significant increase in un-represented defendants. Defendants who cannot prove their income/outgoings (for reasons we shall expand upon) may be assessed as having un-affordably high contributions and so decline Legal Aid and represent themselves. Such situations may very well lead crown court judges to have to consider whether it is in the interests of justice to allow the case to proceed.
· The introduction of means testing in the Magistrates’ Court did not go well. The risks to Justice in the Crown Court of a scheme failing are far greater. We urge the Ministry to carry out a detailed study into the potential impact of means testing in the Crown Court and build detailed statistical models of the various options, including comparative cost/benefit analyses of an “in or out” system as against a contributory system before even piloting any new scheme.
FOREWORD
The consultation paper recognises the vital role that legal aid plays in the effective working of the criminal justice system. We welcome the commitment to pilot any scheme. There are many painful lessons to be learned from the introduction of means testing in the Magistrate’s Courts. Piloting should be limited to as few Crown Court Centres as possible to limit the significant potential disruption caused by these proposals and should not commence until there has been a full analysis of the implications of the introduction of means testing.
Dealing with paragraph 1, the claim that this country has the ‘best funded legal aid system in the world’ is one that needs to be treated with some caution bearing in mind the vastly different legal systems throughout the world which make such a calculation problematic. How does one compare the cost of legal aid here with that of other countries which favour a more inquisitorial justice system with large public expenditure required to sustain a vast civil service judicial bureaucracy in place of legal aid lawyers and where those countries find it difficult to assess what their legal aid bill is because it is a part of the courts’ budget
The claim made in this consultation that ‘spending on legal aid has risen faster than any other area of public funding’ does not bear analysis. In fact legal aid expenditure has been falling. When measured against national income (GDP) there has been a fall from 0.177% in 1998 to 0.153% in 2007, a reduction of 13.5% in cash terms and even when measured against overall public expenditure, spending on legal aid has fallen from 0.499% in 1997-8 to 0.389 in 2006-7, a 22% reduction of Legal Aid budget as a percentage of public expenditure.[1]
Further, if comparison is made with the prosecuting authorities in the Criminal Justice System the true extent of the increase in legal aid expenditure comes into sharp focus, for while over a comparable period legal aid expenditure has risen by 29.8% that for the Crown Prosecution Service has risen by 91% and the Serious Fraud Office by 123.7%[2] with in excess of 3,600 additional offences being introduced by this Government over the past 11 years. Thus revealing how relatively the defence side of the expenditure equation is falling behind.
We do not accept the proposition at Paragraph 12 that the Magistrates’ Court Means Testing regime has demonstrated the possibility of a "fair and accurate" assessment. There have been many problems with Magistrates Court means testing leading to numerous revisions of guidance issued and strong protests from Solicitors at the unnecessary bureaucracy and arbitrary results resulting from the scheme. This must not be repeated in the Crown Court. Particular problems that remain unresolved include:-
1. Mentally ill Defendants who lack the ability to complete the application.
2. Self Employed defendants who may not yet have completed accounts and cannot prepare them in time.
3. Inability to access documentation, for example where someone is in custody or excluded by bail conditions from their home address.
4. The requirement to obtain the signature of a Partner to a means form – the partner may be reluctant to help or just unavailable.
5. Ongoing problems with the DWP link which often comes back with inaccurate information, for example where a Defendant has only recently signed on for benefits.
In the interests of historical accuracy it should be pointed out that paragraph 2 is inaccurate. The ‘longstanding principle of our criminal legal aid system that those who can afford to pay all or some of their defence costs should do so’ is clearly not ‘a standing principle’ as means testing has only recently been reintroduced in the magistrates’ courts. Nevertheless we support the principle quoted above.
Importantly, we do not agree that it is appropriate to require contribution payments during the course of the case.
This imposes an immediate and unfair burden upon those who may in future be acquitted (about 50% of those in contested cases in the Crown Court).
It is not a level playing ground where the State imposes on an accused (innocent) citizen the additional burden of paying contributions during the course of a case when the prosecution has no such burden.
For those acquitted a bureaucratic collection procedure at public expense is launched only to shudder to a halt and go into reverse when a verdict of not guilty is delivered causing yet more administrative steps for the remittal of contributions previously paid.
If a contribution based scheme is adopted then they should be collected on conviction at the end of the case. This better directs Government Resources and will have a marginal effect upon cash flow.
Paragraph 9
We note the commitment not to withdraw legal aid during the case but suggest that if contributions were only to become payable after the conclusion of the case then this would not be an issue at all. The concession is perhaps an acceptance that people will face problems.
Paragraphs 11 and 12
We consider that enforcement is inappropriate for those defendants pleading not guilty and who have not been convicted. It seems extraordinary that the Government believes it is reasonable to contemplate ‘distress warrants; freezing injunctions; charging orders; third party debt orders; and clamping orders’ against innocent people. The collection should be part of a post conviction process albeit the identification of assets should take place at the commencement of the case. We concede that there should be one exception in the case where there is clear evidence of a defendant disposing of his assets. In that case a freezing injunction should be permitted subject to compensation for any consequential financial loss in the event of a subsequent acquittal. There are already established procedures for freezing the assets of Defendants where there is a risk of such disposal.
Our Members’ experience of ‘hardship units’ in the Magistrates Courts has not been positive. The experience is one of significant bureaucracy causing delay and which results in the clients being unrepresented.
The proposal that a Representation Order will not be revoked on the basis of means (for example where a Defendant has not provided accounts) is no comfort to the Defendant. If he or she defaults to a maximum contribution because of their inability to provide documents (for any number of reasons, often not their fault) then they may decide to forgo Legal Aid altogether rather than become liable for a financial liability that they cannot afford. There are dangers that the self employed may not be able to afford to instruct Accountants to prepare first accounts if they are less able to work due to court attendances and time spent giving instructions and also the prospect of having to find contributions that are ‘deemed’ and therefore arbitrary and excessive.
Part I. The Case for reform
OBJECTIVES.
We agree with all the Government’s objectives set out in paragraphs 7 to 11.
Question 1: Should individuals who are committed, sent or transferred for trial before the Crown Court be automatically passported through the Interests of Justice Test?
Answer:
We agree with this proposal.
Any Defendants in Either Way cases where Jurisdiction has been declined by the Magistrates’ Court must, by definition, meet the IOJ test.
Experience tells us that most Either Way matters where the defendant has elected trial by jury will also meet the test either as custody is likely or because one or more of the other criteria are met.
There may be a very small number of cases where the Defendant elects Crown Court Trial but which would not ordinarily pass the IOJ test. The complications of a Crown Court Trial and the pressures on Crown Court Lists are such that it would be a false economy not to allow Legal Aid in these cases and we suggest that they, also, should be passported so far as the IOJ test is concerned.
Furthermore, the administrative costs of applying the IOJ test to all cases to weed out a very small number of cases are disproportionate and likely to exceed the cost of allowing Legal Aid in those cases.
We also suggest that Appeals against conviction or sentence and committals for sentence should be passported in the Crown court for the purposes of the IOJ test for the same reasons as set out above in respect of Either Way matters where the Defendant elects Crown Court Trial.
The means testing scheme in the magistrates’ court.
The thresholds for eligibility are too low and many Defendants who do not qualify for Legal Aid financially nevertheless cannot afford to pay for their representation in the Magistrates Court. This problem will be exacerbated in the Crown Court where case costs are higher.
The lack of applications to the Hardship Unit does not demonstrate that eligibility levels are about right (Paragraph 15). It is the baffling bureaucracy involved in such applications that has meant that so few are made. Our experience as a Practitioners’ Organisation is that many Defendants are choosing to represent themselves or pay privately rather than work through the bureaucracy of making an application to the Hardship Unit.
Defence costs in the Crown Court
Paragraph 19 - The consequence of the suggestion in this paragraph is that some Defendants who are presently paying privately will, under the new scheme, choose to receive Legal Aid.
Whilst some privately paying Defendants have Defence Costs Orders made in their favour upon acquittal (at a cost to the State) many plead guilty or are convicted and do not receive a DCO. If these defendants choose to have Legal Aid then this will increase the costs to the Legal Aid Fund. It appears that this has not been factored into the costing/impact assessment and we cannot understand why the Ministry should want to incur these additional costs by way additional payments to the Legal Aid Fund.
Paragraph 22 - we do not consider that the Magistrates’ Court system works. We suspect that the Government is unwilling to antagonise Crown Court Judges by foisting upon them the same dreadful means testing system. Judges will not tolerate the in-built delays or the appearance before them of unrepresented defendants. We are not convinced that the proposed system will safeguard this.