Means Tested Legal Aid

A new legal aid system has been introduced, and as from 2nd October 2006 criminal legal aid has reverted to means testing. To get legal aid for a criminal case you now need to pass the interests of justice test and the means test. For the past seven or eight years you simply had to pass the interests of justice test.

What is the interests of justice test? It is simply qualifying the need for a solicitor. For example if you apply for legal aid and there is a pretty good chance you could go to prison due to the seriousness of the case you would usually be given legal aid. Also if your case involved a complex area of law then you may meet the interests of justice test.

The means test is back, but in a new way. Means testing used to exist, but it was abolished because it was believed that means testing was too expensive to actually collect in money that people had to contribute to their legal aid if their income fell between certain levels. I like the idea of means testing, those defendants who can afford to pay for legal services should pay for them. Those Defendants who cannot afford to pay for legal services should qualify for legal aid. The Legal Services Commission has been behind the reintroduction of means testing and they have made a right pigs ear of it.

Here some examples of why applications have been rejected recently:

The form had been filled out in blue ink and not black ink.

The ethnicity part of the form had not been completed to specify the applicants ethnicity

The application of a 12 year old youth had not specified whether or not he had a marital partner

The application submitted before the first hearing did not contain a copy of the applicants previous convictions even though these are not available to defence solicitors until the first hearing

Many defence solicitors, including myself, are aggrieved by the attitude of the Legal services Commission over means testing. They have somehow managed to move the job of processing legal aid applications from experienced Court staff to administration staff who have had no experience of the interests of justice test, or have any practical experience of Court work to know how to apply the interests of justice test.

The real problem with the new means testing scheme is that applications for legal aid cannot always be processed on the first hearing when the Defendant appears in Court. For example, my local Court is served by a central administration office. If I want to lodge a legal aid application it has to be sent through the post or document exchange to an office, I then have to wait two days to find out if the application has been granted. Now this all sounds fine until you realise that there are Defendants in Court without time to make an application for legal aid. If I represent a Client for a matter at the Police Station they might appear in Court within 24 hours having been refused bail by the Police - and in these circumstances I cannot ensure that legal aid is in place before the Client appears in Court wanting to be represented. In reality the Legal Services Commission want solicitors to gamble and to guess when legal aid will be granted. There is no way for me to recoup losses (other than ridiculously small fees) if I have spent the vast majority of my time at Court for a Defendant who has been refused bail by the Police and is also refused legal aid several days later!

The Derek Hills of the Legal Services Commission, and Vera Baird QC of the Department for Constitutional Affairs, have shown utter contempt for legally aided defendants over means testing. There are some very real issues such as young defendants remaining in custody for longer than is necessary whilst legal aid applications are resolved. The UK has a record of locking up a higher percentage of the population than other European countries, we also lock up more of our youths. Means testing is adding to this issue. At a meeting on 2nd October 2006 I was told by the head Clerk that if Defendants have to remain locked up in order to process legal aid applications then so be it.

2nd October 2006 was the date for the reintroduction of means testing, it will go down in my diary as Black Monday.

Where Have I Been?

Apologies to my loyal readers for the lack of posts recently but I have found that my time has been taken up racing all over the place with work, I have been left with little time to tap away at my keyboard to post messages on this blog.

Where have I been in the past two weeks then? I have made three trips to Ipswich Crown court to get a difficult rape trial off the ground. It is often good practice for solicitors who have conduct of serious cases to attend at the first day of a trial to ensure that any pre-trial issues such as disclosure, or last minute conferences between the Client and defence barrister, go smootly. I have been to two very long conferences with Clients and their barristers in London for impending trials. I have visited the Police Station on various occasions. I have been to various local Magistrates Courts defending the innocent and the needy. I am now in the position where I actually want to be in my office for a period of time to finish of administrative paperwork. Today I went off to my local Magistrates Court and dealt with four cases before lunch, I then went to my local prison and spent the afternoon taking instructions from two Clients. I then went directly from the prison to a Police Station and I got home about 9.00 pm.

Victims Advisory Panel - Why?

The Home Office has announced the creation of the Victims Advisory Panel:

The new panel will include people who have suffered from crimes such as burglary, anti-social behavior and hate crime, or who are survivors of victims of serious violent crime.

It will examine the way victims and witnesses are treated and the way their experiences are handled by the criminal justice system, and then make formal recommendations for changes directly to Ministers.

The panel is a critical part of the government's commitment to put victims at the heart of the criminal justice system.

Emotional and practical support
Home Office Minister Gerry Sutcliffe said that, while crime is at record low levels, people are still victimised and their rights must be protected. 'Being a victim or witness of a crime can have a severe and damaging effect. We will ensure that victims have the emotional and practical support they need.'

The panel will work to ensure that victims feel the system is on their side as they go through the difficult process of giving evidence and working with police and prosecutors to ensure that criminals are brought to justice, he said.

Constitutional Affairs Minister Rt Hon Harriet Harman agreed adding, 'Crime victims must get the support they need from the criminal justice system.' The advisory panel, she said, 'will represent the needs of victims, whatever their circumstances.'

Hearing their voices
Kathryn Stone, the panel's spokesperson, is also the chief executive of Voice UK, a national charity for people with learning difficulties who have been victims of crime. She said the panel will provide a critical service.

'Too often the voice of the victim is not heard properly, or not heard early enough. We are looking forward to being the voice of victims of crime at a crucial stage - when policy is first being developed.'

My question is why create such a body? I realise that this post is likely to provoke a nasty reaction from some of the readers of this blog, but I do not understand what our government beleives it will achieve by setting up such a panel. I have read through the proposals that victims should be able to address Courts upon the impact of a defendant's behaviour if convicted, I have also read the proposals that victims should form part of the Parole Board panel that decides if a convicted prisoner can be released from prison. I have yet to see the results of the victims advocate pilot.

The judicial system that exists in the UK has been developed over centuries. One of the key parts to the judicial system is that both the defence and prosecution are adequately represented, and that their submissions to a Court are judged by appropriately trained and qualified judicial office holders. If victims are to be given control of our criminal justice system why have a Court in the first place? Bring back public floggings and hanging. There will be no need for a trial!

Victims of crime deserve to have their voice heard, that is why the Prosecution exists, to put forward the victim's case in Court.