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Lord Chancellor's Department
Press Notice
13 September 2000

 

NEW SYSTEM PROPOSED FOR TESTING THE MEANS OF CRIMINAL DEFENDANTS

New measures to improve the system for means-testing criminal legal aid applicants are proposed in a consultation paper issued today by the Lord Chancellor's Department.

The proposals would abolish the present arrangement where all applicants for criminal legal aid are means-tested at an early stage of the process. Instead, if a case satisfied the 'interests of justice' merit test (ie that the case is more than trivial) then funding would automatically be provided by the Criminal Defence Service, which comes into operation in April 2001.

David Lock MP, Minister for Legal Aid, explained: "For Crown Court defendants who are convicted and are able to pay a contribution, the court would then issue a Recovery of Defence Costs Order so that they did contribute. Although this order would only be made at the end of a trial, the investigation of a defendant's apparent wealth could take place or their assets could be frozen before the trial had finished.

"We will put measures in place to ensure early identification of defendants who may have the means to contribute, including criminal assets. If a defendant's means are being investigated, then the norm would be freezing of assets pending the outcome of their trial."

No recovery of costs is planned for magistrates' courts cases, reflecting the low costs of magistrates' courts proceedings and the relative cost of the recovery process.

The abolition of means testing would also speed up the time between a defendant being charged and their subsequent appearance in court.

David Lock commented: "The reality of the current situation is that less than 1% of criminal legal aid applications are refused on means grounds and only 5% of defendants are ordered to make a contribution to their criminal legal aid bill. We have to shift the burden of work on court staff which produces very little outcome to targeting our investigations and streamlining the process."

Amongst those cases which would be specially investigated, a defendant's spouse's assets would also be taken into account if it appeared that a defendant had deliberately moved assets to their spouse or a third party, or the defendant appeared to be financially supported in some other way.

The consultation period runs until 8 December 2000. Comments should be sent to: Mrs S Toyn, Lord Chancellor's Department, 3rd floor Selborne House, 54 Victoria Street, London SW1E 6QW.

Notes for Editors

1. Reporters may obtain copies of the consultation paper from the LCD press office, tel: 020-7210 8512.

2. Members of the public and legal professions may obtain copies of the consultation paper from Shola Shodijo tel: 0171-210 8703 or e-mail: sshodijo@lcdhq.gsi.gov.uk

3. The paper will shortly be available on the LCD website (http://www.open.gov.uk/lcd UPDATE: SITE NO LONGER LIVE - 08/02/08 - see What's New?).

4. Interest of Justice - Para 5, Schedule 3 of the Access to Justice Act 1999 states that in deciding what the interests of justice consist of in relation to any individual, the following factors must be taken into account:

(a) whether the individual would, if any matter arising in the proceedings is decided against him, be likely to lose his liberty or livelihood or suffer serious damage to his reputation,

(b) whether the determination of any matter arising in the proceedings may involve consideration of a substantial question of law,

(c) whether the individual may be unable to understand the proceedings or to state his own case,

(d) whether the proceedings may involve the tracing, interviewing or expert cross-examination of witnesses on behalf of the individual, and

(e) whether it is in the interests of another person that the individual is represented.

5. The Criminal Defence Service (CDS) will be operated by the Legal Services Commission and replaces the criminal legal aid system from April 2001. The CDS was set up by the Access to Justice Act 1999. Lawyers in private practice will provide the majority of CDS services, increasingly through quality assured contracts. All criminal advice & assistance (duty and own solicitor) and magistrates' court work will be contracted when the CDS is introduced in April 2001. All criminal defence services provided by solicitors, including advocacy, are to be contracted by 2003.

6. Two consultation papers on other aspects of the CDS were issued on 13 June: one concerning the choice of a legal representative by a suspect or defendant (LCD press notice 207-00); the other on the use of salaried defenders (LCD press notice 206-00).

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