I am looking forward to the Queen's Speech on Tuesday to see what crackpot ideas the Government has devised for the next legislative period. Although the headlines are currently filled with the ID Cards Bill I am more concerned about legislation such as the Criminal Defence Service Bill which is looking to fundamentally change the way that legal aid operates in the criminal Courts. The Government wishes to reintroduce means testing for criminal legal aid. Although I am in favour of defendants paying for representation where they can afford it, or partly paying towards their representation where they can afford it, I am waiting to see how the Government plans to implement it's plans. There have previously been suggestions that those who are on means tested benefits will not have to contribute towards their legal aid and that if a persons income falls below a certain level then they also will not have to contribute. There is then the area in which people will have capital such as houses and medium incomes - they are supposed to make a one off payment as a contribution towards their legal aid on the guesstimate of costs that their solicitor makes at the start of the case. Then we have the people with such large incomes and capital that they will not qualify.
The Criminal Defence Service Bill scared the hell out of most criminal practitioners last year with the idea that solicitors would be responsible for collecting any legal aid contributions - I think that this idea has now been shelved.
I am not looking forward to the Criminal Defence Service Bill becoming law - and it is not because I am opposed to people paying towards their representation where they can afford it. Unfortunately most criminal clients are not very organised. I can foresee when means testing is brought in that the Courts will grind to a halt whilst the effect of means testing prevents cases being dealt with quickly and efficiently until legal aid has been granted in the case. The average defendant will be arrested, for example say, on a Tuesday, then be charged and bailed to appear in a Magistrates Court on the Thursday. The criminal client is extremely unlikely to suddenly swing in to action and obtain evidence of their financial means which would probably result in them appearing unrepresented on the Thursday. The case can be adjourned for a week with the client being told by the Court to go and see a solicitor. A week later the solicitor can appear if the evidence of the clients means has been resolved and the case can progress. Of course the client might not do anything and then they appear unrepresented again the following week because the solicitor is too scared that his work will go unpaid if he appears at Court without the evidence of the client's means being presented to the Court first!
When I first started working in the criminal defence business means testing existed and people could deal with it because the Court system was not set up to run at 100 mph. Now the Court system has changed and I am dreading means testing. I have my fingers crossed that the Government thinks up some crackpot idea to get round the problems I have highlighted and make the transition in to means tested criminal legal aid a smooth one.
2 comments:
The means tested Legal Aid system was, I am told, dropped because it was costing more to collect than it yielded.
Isn't about half of LA spent on a hundredth of the cases?
The figure that usually gets banded around is 49% of the criminal legal aid budget gets spent on 1% of the cases. There are usually a number of very long and complex fraud trials that often suck up the majority of the budget. One of the recent famous fraud cases that cost a small fortune was the Jubilee Line case. The remaining 51% gets spent on the other 99% of cases.
In my opinion means testing is a red herring. People convicted in the Crown Court are made to pay recovery of defence order costs - if they can pay for their case then they are ordered to pay. I think that they should extend these orders to the Magistrates Courts. Ignore means testing for the start of the case and deal with recovering costs at the end of the case. Of course the 'interests of justice' test should still apply to see if the case is serious enough to need a solicitor in the first place.
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