Waiting For Means Testing

When I started working in the world of criminal defence work as a trainee solicitor in order to get legal aid you had to pass two tests, the first was the means test, the second test was the merits test.

Completing legal aid applications was a nightmare. First of all you needed to get the Client to the office, then you had to ensure that their criminal case was sufficiently serious to meet the merits test. The merits test has reamined very similar over the years, generally speaking if there is a real possibility that you could receive a prison sentence, or there was something complex or novel about the case then you met the test. The next stage was to fill out the form to meet the means test. This was always the part that was a nightmare. If a Client was on means tested benefits they had to provide evidence that they received that benefit. People on income support generally had benefit books and these could be photocopied. Client on job seekers allowance had to get letters confirming that they were actually being paid job seekers allowance. Clients who were working generally did not qualify for legal aid, but to complete an application you had to submit three months worth of wage slips. If the Client was self employed then they had to show their accounts for the past 6 months.

Means tested legal aid is coming back and will start with effect from 2nd October 2006.

I am not looking forward to means testing. The Legal Services Commission have already stated that they are willing to put in place an early cover system whereby solicitors can claim up to one hours work for representing Clients who have applied for legal aid within 2 days of being charged with an offence but who have failed the means test. This early cover system is then supposed to allow solicitors to claim for up to one hours worth of work on the case if legal aid is refused. Most defendants are not particularly clever, or organised, and I cannot see how most defendants are going to be able to supply the documents to prove their financial situation within two days of being charged at the Police Station and told that they are to be prosecuted. It is more likely that it will take them the best part of a week. In the days of means testing I recall case after case being adjourned because legal aid had not been properly sorted out due to financial circumstances/evidence.

The real worry I have about means testing is that it is all going to go horribly wrong. When there used to be means testing there would be about four weeks between the time a person was charged at the Police Station and the time they appeared in Court - by todays standards that time period has been reduced to about 1 week. There is going to be a lack of time to sort out the legal aid applications, and cases ae going to go before the Courts with Defendants saying my solicitor is not here because I have not got the papers to apply for legal aid yet. The Courts will slowly get bored of the argument that they should not deal without a Defendant's case because he has not sorted out his legal aid and then chaos will start as Defendants who are not represented will start to enter pleas without advice. You will get Defendants pleading not guilty to matters where they are guilty on their own account but think that the law is different and that they are in fact guilty. The reverse could also happen where people plead guilty to matters where they in fact have a defence.

I can foresee that there will be chaos. The savings that the Department for Constitutional Affairs believe that they will make by making Defendants who can pay for their own legal costs doing so will be wiped out by Courts becoming clogged up with Defendants who could be represented on legal aid funding but have failed to properly apply for legal aid.

Means testing is the wrong way to deal with funding. The Crown Courts operate a system whereby legal aid is granted to cases that are sufficiently serious, or complex, and if at the end of the case the Defendant is found guilty or has pleaded guilty the Court will assess the defendant's finances and then make a Recovery of Defence Costs Order and make those who can afford to pay pay for their legal aid costs. The Magistrates Courts should adopt this idea to prevent Defendants, Magistrates, and Solicitors getting tied up dealing with legal aid applications when they could be getting on with progressing the case.