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You are here: Homepage » Articles » 0339a

 

Criminal Defence Service: Recovery of Defence Costs Orders


A Lord Chancellor's Department Consultation Paper

September 2000

 

How to Respond
Summary
The abolition of the means test in Criminal Legal Aid
Scope of Orders
Role of the Legal Services Commission
Role of the Court and Prosecutors
Judicial role in the orders
Appeals against the RDCO
Enforcement of the RDCO

Annex A - Current arrangements for determining a legal aid application

How to respond

Comments on this paper should be sent by 8 December 2000 to the following address:

 

Mrs S Toyn
Lord Chancellor's Department
3rd floor, Selborne House
54 Victoria Street
London SW1E 6QW
e-mail: stoyn@lcdhq.gsi.gov.uk
 Unless you ask the Department to keep your name or the contents of your response confidential, your name and the general contents of your response may be made public, in response to questions under the Open Government initiative. Please ensure your response is marked clearly, if you wish your response or name to be kept confidential. Confidential responses will be included in any statistical summary of comments received and views expressed.

Additional copies of this paper are available from Shola Shodijo at the above address, e-mail: sshodijo@lcdhq.gsi.gov.uk or tel: 020-7210 8703.

Summary

  1. At present, when a person in a criminal case applies for legal aid, the court will approve the application provided it is in the "interests of justice" (broadly speaking this means that the alleged offence must be more than trivial; the full definition is in Annex A) and provided the person is assessed as needing financial help. But the assessment process, which is known as "means-testing", can be complex and can lead to delay in the progress of the case while the court seeks and considers evidence of "means" or resources that an individual holds. The Access to Justice Act, which was passed by Parliament last year, sets up a new system which is intended to be cheaper and quicker to run. It will nevertheless keep the important principle that where a person has been found guilty of a crime, or has acted in some other way to bring a prosecution on himself, he should meet the cost of his defence if he can afford to do so. Those costs would otherwise fall on the taxpayer.

  2. Defence costs will in future be collected after the trial has completed not before. The purpose of this paper is to consult professionals and interested members of the public on exactly how these new powers will be used. The Government intends to make regulations setting up the scheme in time for the implementation of the Criminal Defence Service in April 2001.

  3. Under the new arrangements the court will still be responsible for deciding whether it is in the interests of justice for a person to be represented at public expense but there will no longer be a means test at the start of the case. Instead, all courts other than the magistrates' court will consider at the end of the case whether the defendant should pay towards his defence costs. If it decides he should pay, the court will have the power to make a Recovery of Defence Costs Order (RDCO) up to the full amount of defence costs.

  4. The new Orders will not apply to cases heard in the magistrates' court. Because most magistrates' court cases are relatively short and straightforward, and cheap. Financial assessment is likely to be disproportionate to the amount recovered by an Order. Where the case goes on to the Crown Court or a higher court, the costs incurred in the magistrates' court will be included in the final figure for defence costs at the Crown Court.

  5. If at the end of the case, there are indications that the defendant has substantial assets or income, the court will be able to order a financial investigation of a defendant. In other cases, an investigation may be undertaken while the case is being heard. Either way, the Legal Services Commission would undertake the investigation, and the court would use the findings to decide whether to make an Order and, if so, for how much. The timing of investigations is one area where we would welcome views. Once it was clear that a defendant had sufficient resources to be liable to an order the usual practice would be for the Legal Services Commission to seek to have those assets frozen.

  6. Another area is the question of enforcing payment of an RDCO once it has been made. An option would be to enforce the Order through the magistrates' courts in the same way as fines. But, the RDCO is not a punishment. Like the present legal aid contribution order, it is a form of compensation for the costs of the defence where someone has been found guilty or brought the prosecution on himself. It could be that enforcement through the County Court and High Court could be used as an alternative to enforcing through the magistrates' courts.

Summary of Questions
  1. Are the methods proposed for identifying those who should be subject to early investigation workable and effective?

  2. Are the proposals for securing the defendant's co-operation in supplying details of his means at the start of the investigation (and as it continues) workable and effective?

  3. What criteria should the Commission use in deciding whether to apply to freeze a third party's assets when investigating a defendant's means?

  4. Will the necessity to communicate with the Commission put a burdensome administrative responsibility on the courts?

  5. What alternatives are there to ensuring the defence can mitigate as appropriate with proper representation of the Commission's findings?

  6. How much responsibility should the trial judge take in identifying cases suitable for an Order, when a case had previously not been referred to the SIU?

  7. Does a 'duty to consider' making an Order in every case place an unnecessary burden on the judiciary?

  8. Should there be a power in the Court of Appeal to reconsider an RDCO made in the Crown Court if an appeal against conviction is allowed?

  9. The premise of the Order is that the defendant has sufficient funds to pay; how far should mitigation be allowed to argue a figure arrived at by the SIU?

  10. Should a single receiver be appointed in relation to all the different orders that required enforcement?

Part One
The abolition of the means test in Criminal Legal Aid

  • Scope of RDCOs
  1. Currently, in order to qualify for criminal legal aid, an applicant must pass both a means test and the 'interests of justice' test. Annex A outlines these two tests.

  2. Means testing is a complex and costly process. A case is often considerably delayed while defendants provide documentary proof of income, outgoings and savings, or receipt of certain benefits. In fact less than 1% of applicants are refused criminal legal aid because they have sufficient means to pay for their defence. Another 5% are required to pay a contribution, sometimes a lump sum and sometimes a weekly amount for the duration of the case. This contribution is reimbursed if the defendant is acquitted. The total value of contributions collected is barely enough to pay for the direct costs of running the system. When the indirect costs of delay are taken into account the present system represents poor value for money.

  3. The Government is also committed to reducing delay in the criminal justice system. A number of initiatives aimed at reducing delay in the magistrates' courts, the "Narey" initiatives, were introduced on 1st November 1999, following six successful pilots at around the country. There are agreed inter agency guidelines on the time to be taken in completing various stages of the criminal process. Cases in the magistrates' courts often do not allow sufficient time for means testing.

  4. The Government has therefore decided to replace the current universal means test for criminal legal aid with the Recovery of Defence Costs Order, the RDCO, which will be made at the end of a trial by the judge. The Access to Justice Act 1999 contains the necessary powers. The new scheme will not delay proceedings and the efforts of court staff and the efforts of the Legal Services Commission will be better targeted on those likely to be able to pay. While the taxpayer should not have to meet the cost of defending rich criminals, it would be absurd to waste the taxpayer's money on a system where the sums recovered are hardly enough to meet the direct costs of recovering them and which serve to delay justice. RDCOs will therefore only be made available where the costs of the proceedings might justify financial scrutiny of a defendant's assets by a special investigation unit. RDCOs will not be available for cases that do not proceed beyond the magistrates' courts. But all other courts will have a duty to consider at the end of the case whether the defendant should pay towards his defence costs. These costs will include any costs in the magistrates' courts where a case goes beyond the magistrates' courts.

  5. The new arrangements will be based on the following principles:

    • As now, any defendant who wishes to be represented at public expense will need to apply to the court for help (It will of course remain open to anyone to pay for his or her own defence).
    • All applicants will need to satisfy the interest of justice test before the right to representation is granted.
    • There will be a new power for courts, other than the magistrates' courts, to make an Order for the payment of defence costs.
    • The Order will be made at the end of the case and will be made after all other financial orders or penalties.
    • All applicants for funding will be warned that they are potentially liable for an Order at the conclusion of the proceedings if their case progresses beyond the magistrates' court.
    • The Orders do not depend on the defendant being convicted and are not part of the sentence.
    • The new arrangements are intended to target the small number of defendants who have sufficient assets, which are likely to be recoverable, to make a significant contribution to defence costs.
  1. How these arrangements will be put into practical effect is the subject matter of the rest of this paper. It is important that the new system works efficiently and effectively. We welcome comments on all aspects of the new proposals; we have suggested some questions on which we would particularly welcome views.

 

Part Two
Scope of the Orders and establishing assets

  1. In principle, RDCOs will be available in all cases which go beyond the magistrates' court, including appeals against sentence and conviction heard in the Crown Court or committals for sentence to the Crown Court. Normally only those found guilty of offences could expect to be required to pay costs. But the Government believes that in exceptional circumstances acquitted defendants should also be liable. Orders will not therefore be restricted to those found guilty. This reflects the current arrangements where a court may refuse to make an acquitted defendant's costs order, or order the repayment of legal aid contributions, where for example the defendant's own conduct has brought suspicion on himself and has misled the prosecution into thinking the case against him is stronger than it was.

  2. One of the most important parts of the new procedures will be identifying at an early stage those defendants who are likely to have sufficient means to be able to contribute towards the costs of the defence. This will enable the Legal Services Commission to undertake an early investigation of the defendant's means and, as necessary, to apply to the court to freeze any identified assets as soon as possible to prevent their disposal. There are a number of options.

  3. First, defendants could be identified by reference to prosecuting bodies. The Serious Fraud Office, Crown Prosecution Service Central Casework and Customs & Excise deal with cases, such as fraud, drug trafficking, duty and tax evasion, which may in themselves suggest that the defendant has sufficient assets for an Order to be made.

  4. Second, referrals could be made to the Commission where the defendant had an 'aura of wealth', for example, cases where the defendant is known nationally or locally as successful in business. It would not be possible to establish detailed guidelines; these referrals would depend on court officials having local knowledge and being aware of comment in the media. Anecdotal evidence suggests that courts in rural or smaller cities do have a knowledge of their catchment area and personalities within that area. However, this is clearly not a mechanism which would be sufficient in itself. The officer of the court would have to set out the reason for referral based on an 'aura of wealth' on 'a certificate of referral'. This would establish that the officer had substantial grounds for suspecting that the applicant could afford to pay some or all of the costs incurred and enable the Commission to assess in the first instance whether the applicant was likely to have funds worth investigating. Where it is not possible to expect that officers of the court would know of an individual's financial background or reputation, the police could inform the appropriate officer of the court of any information that they have. Statutory restrictions on sharing of information may make this avenue of disclosure restrictive and there is argument that it would not be appropriate for the body bringing the prosecution to raise the possibility of the applicant having sufficient funds to may a significant contribution to the costs of their defence.

  5. Another option would be to have a restricted financial assessment for all cases that progress beyond the magistrates' court. Defendants whose cases are transferred to the Crown Court (indictable only cases and serious either way cases) might be obliged to complete a financial assessment form before transfer. The defendant would be asked to supply documentary evidence, but would not be obliged to. The magistrates' courts already have expertise in conducting legal aid means tests and it would be sensible to take advantage of this by using the magistrates' courts to conduct this preliminary financial assessment and for the appropriate officer of the magistrates' court to forward the submitted forms to the Commission.

  6. Referral to the Commission based on a financial assessment could be restricted to those defendants who appear to have identifiable assets (or income that would not be affected by any term of imprisonment). A financial threshold for referral could be set in guidance. The criteria for referral might be that assets were more than 25% of the estimated costs of the Crown Court trial, where the case is expected to cost less than £20,000; and to be more than £5000 where the case is expected to cost more than £20,000. Estimates of the length of the trial could be offered by the prosecution at the time of transfer to give an indication to the officer in the magistrates' court what those costs might be.

  7. It is not proposed that the defendant would be obliged to supply documentary evidence as a condition of receiving funding. It is principally a tool to assist the court in identifying defendants who appear to have sufficient assets to justify further investigation by the Commission. But he would be obliged to give a truthful description of his assets.

  8. The Government takes the view that all three options for identifying those for early investigation of means should be adopted, but would welcome further views.

  9. Defendants who are not identified early could still be subject to an Order. The judge has the duty to consider an Order in every case (see chapter 7). During the course of the trial evidence may arise which could suggest that the defendant has assets worthy of investigation. The trial judge will be able to make an Order without investigation if he or she thinks it is appropriate to do so or will be able to direct that an investigation be conducted prior to making an RDCO. A late referral may lead to a delay at the end of the proceedings, but the majority of Crown Court cases are adjourned for Pre-Sentence Reports, which usually require a four week adjournment.

  10. The investigation into assets may cost more than they are worth and it is preferable that the Commission focuses their investigations on those cases where it is clear that the defendant has some assets. Any of these options for the referral criteria suggest that it would be preferable that defendants are required to complete an initial means enquiry to reduce the Commission's need to investigate every referral.

  11. Under the present system, about 70% of defendants who obtain legal aid are receiving a state benefit that represents a "passport" for legal aid purposes. In other words, they are automatically eligible for legal aid and do not have to satisfy a means test. The proportion of defendants who receive passporting benefits will not decrease under this new system and some of those receiving benefits will be included in the referrals based on the prosecuting body. Conversely, some defendants, who previously did not receive legal aid because they could afford to pay for legal representation, may well apply for the right to representation under the new arrangements.

  12. It will be important that the Commission can ensure that defendants co-operate in supplying accurate information both at the preliminary enquiry and throughout the investigation of their means. During the investigation this would include documentary evidence. In the current system, legal aid is not given until information is supplied. There is therefore an incentive to provide the information. In future, there will not be the same incentive to complete forms within a certain time scale as the right to representation will have already been granted. There are two options for enforcing completion of financial details for the Commission. One is that the defendant's identified property could be frozen until he provides all the information or evidence required. The Commission would need to apply to the court for this power to be exercised.

  13. Second, the defendant's right to representation could be withdrawn. A decision to withdraw the right to representation is for the courts. The Commission could draw the failure to co-operate to the court's attention. If necessary the defendant could be brought before the court to explain any refusal to co-operate.

Q1    Are the methods proposed for identifying those who should be subject to early investigation workable and effective?

Q2    Are the proposals for securing the defendant's co-operation in supplying details of his means at the start of the investigation (and as it continues) workable and effective?

 

Part Three
Role of the Legal Services Commission

  1. The Legal Services Commission will be responsible for investigating defendants' means and enforcing orders through the courts. The Legal Services Commission already has a Special Investigation Unit (SIU), which was established to deal with civil means assessment for applicants with complex finances and an 'aura of wealth'. The role of the Unit was extended, in a pilot scheme that started in 1998, to include providing assistance to 20 magistrates' courts and Crown Court centres in assessing the means of applicants for legal aid orders where the applicant had a complex financial profile. The scheme was extended to other courts in 1999. The SIU is likely to be responsible for investigating the defendant's financial background. Cases will be referred to the Unit if they satisfy the criteria of early referral (see Part 2).

  2. Early referral to the Commission is imperative if the Commission is to apply to the court to freeze the defendant's assets prior to an Order being made and to embark on an investigation as early as possible to prevent additional adjournments at the end of a trial. There will always be a real risk that a defendant will try to dispose of his assets in anticipation of an Order. It will be the usual practice that, where an individual is referred to the Commission, the Commission will apply as soon as possible for an order freezing identified assets. This may not be immediately necessary where assets are already frozen at the request of other agencies, with whom the SIU will work closely (this is discussed below).

  3. The SIU will endeavour to complete an investigation of means before the verdict is given. An Order may be made against a defendant who is acquitted. But these orders are expected to be few and far between. In the great majority of cases where the defendant is acquitted an RDCO will not be made. It follows that in a good number of cases the Commission will conduct an inquiry into the defendant's assets without any chance of recovering any costs. But early investigation will be a benefit to the criminal justice system as a whole because it will mean that there is less chance of adjournment at the end of the case, and less delay. The strict referral criteria and the preliminary financial assessment conducted by the SIU will mean that investigations will only be carried out on those defendants with identifiable assets, therefore reducing the need for investigations to be carried out in all cases before the verdict is known.

  4. Those prosecuting bodies which freeze a defendant's assets prior to an order for confiscation under the Drug Trafficking Act 1994 or the Criminal Justice Act 1998 do so at the earliest possible stage in the proceedings. The Commission will have the disadvantage of not being able to apply to freeze any assets until they have been notified, which will be after the defendant has applied for funding.

  5. In many cases notified to the Commission as being suitable for investigation there will be a parallel investigation being conducted either by the police or the prosecutors to compile a statement for the Drug Trafficking Act 1994 or the Criminal Justice Act 1988. There are currently no formalised arrangements between the Commission and these bodies to share relevant information, but it will be a priority to build up such links to avoid duplication of work and to increase the effectiveness of the system.

  6. The Commission will also have the power to investigate the defendant's partner and any other third party where it appears that the defendant has deliberately removed assets or that he or she is being financially supported in some way. Current arrangements allow for the court to consider another person's resources where it appears that the defendant has transferred assets to another person or that another has made funds available to the defendant (1). It is also proposed that the Commission will have the power to apply to the court to restrict a third party's access to their assets where that person had been asked to supply information about their assets. This reflects the powers available to prosecuting authorities that currently exist under the Drug Trafficking Act and the Criminal Justice Act.

  7. The Commission will need to liase with the court regarding dates of hearings and for the service of the Commission's findings, which will include an estimated figure for defence costs. The Commission will make these estimates on the basis of requests to the defence, who will have an interest in there being an accurate estimate. In addition, it is likely that many of the cases referred to the Commission will be very high cost criminal cases (VHCC). The Commission has already assumed responsibility for defence funding in these cases and has established a separate unit to deal with them. The SIU would be able to liase with the VHCC unit directly, but the VHCC unit will not be required to divulge to SIU any information which might prejudice the defendant's case. Other case information between the Commission and other parties would pass through the court. All information concerned with the consideration of RDCOs would need to be sent to all parties in advance of a hearing date to allow time for mitigation and clarification of the figures, and reduce the need for further adjournments prior to the Order being made. Routes of communication between the Commission and the Courts will be discussed in chapter 5.

Q3    What criteria should the Commission use in deciding whether to apply to freeze a third party's assets when investigating a defendant's means?

 

Part Four
Role of the Court and Prosecutors

  1. One of the main reasons for abolishing the means test is that it can delay the progress of cases through the courts. Court staff spend a lot of their time in determining the means of the applicant and waiting for evidence of the means to be provided. Any alternative system that is proposed should not place an undue burden on either magistrates' or Crown Court staff again. This could result in an equally slow and burdensome system as the one it wishes to replace. The simplicity of the referral guidelines is an attempt to make the new system as 'user-friendly' as possible.

  2. Training will be essential for both magistrates' and Crown Court staff, to ensure that the correct cases are referred to the Commission. Staff at the magistrates' court will need to be able to determine whether a defendant's preliminary means test is worthy of referral to the Commission, and ensure that a case brought by a particular prosecutor is automatically referred. Systems will need to be established so that any referrals to the Commission are clearly marked up for Crown Court staff. It will be the Crown Court staff who must ensure that the Judges are provided with all the information they require, to enable a reasoned decision to be made based on the information before them.

  3. The Crown Court would need to inform the Commission of various stages of the case. Procedures would need to be in place whereby this system would not need to take too long or is too complicated to conduct. The court will need to liase with the Commission at specific points as the case progressed through the system, as outlined below.

  4. In the first place, the staff at the magistrates' court would need to tell the Commission that an apparently suitable case for referral has been identified. A certificate of referral will need to be sent to the Commission with each case, as mentioned in paragraph 21. If the proposed referral criteria based on prosecuting body were adopted, the application form could ask for details of the prosecutor to be provided. The appropriate officer at the court would have to check which prosecutor had brought the charges, in order to determine whether the case was suitable for referral. The officer would still need to look at the application forms for a right to representation in order to conduct the interest of justice test.

  5. In the instances of 'aura of wealth', the officer processing the application would be required to complete the certificate of referral detailing the reason for referral. If a financial assessment was to be completed for cases that are transferred to the Crown Court, the magistrates' court staff would need to inform the Commission of cases which fell within the threshold discussed above. Once a case had been referred to the Commission, it would be the Crown Court's responsibility to maintain a line of contact with the Commission, in order to inform them of dates of hearing and other relevant information.

  6. Once the investigation is complete, the Commission would send a report of their findings along with an estimated figure for defence costs to the Crown Court centre dealing with the case. The figure for defence costs would be determined from the estimated bill of costs. The estimate provided would have to be based on the assumption that the final figure would not exceed the final taxed bill submitted by the defence. This is discussed in more detail in Chapter 7.

  7. The Commission would present a figure of the disposable income or assets that it had identified as belonging to the defendant. Orders would be for capital, payments out of income, or both. It is proposed that the same financial limits exist as they do in the current scheme. That is that disposable capital over £3000 and not exceeding the amount of the Order should be paid. Similarly, allowances would be made for reasonable living expenses when payments out of income were ordered.

  8. In large complicated cases, where a preliminary means enquiry had not been conducted, the staff at the Crown Court would forward the report to the relevant parties, that is the defence and prosecution, in advance of the hearing date, that is when the case is listed for sentence. This would allow the defence time to consider the figure, in the same way that confiscation statements are served in advance of any hearing. Exceptionally, it may be that the figure cannot be resolved administratively in advance of a hearing and in such instances it would be preferable for the Commission to be represented to explain their findings to the court. The defence may wish to argue the amount of disposable capital or income that the Commission has identified, or the principle of making any Order at all.

  9. It would not appear to be in the interests of the court process to argue the amount of the Order. As stated above any estimate would be less than the amount of the tax bill submitted to the Commission. If the estimate were above the final bill, the difference would be returned to the defendant. Part 7 includes proposals regarding procedures for appealing against the Order.

  10. Prosecutors have already indicated their willingness to raise the issue of the Orders at the end of each case. It would not be appropriate for prosecutors to bring to the judge's attention the fact that the defendant could pay his defence costs having heard evidence during the trial. However, it would be possible for the prosecutor to remind the judge of his duty. The judge could then either make an Order without referral for a means enquiry or order an investigation of the defendant's means before considering whether to make an Order. Prosecuting counsel's brief often contains standard paragraphs at the end to remind them of the need to seek prosecution costs and compensation, for example. It would be possible to include a standard paragraph, reminding counsel to raise the issue of the RDCO's with the trial judge at the end of each case.

Q4    Will the necessity to communicate with the Commission put a burdensome administrative responsibility on the courts?

Q5    What alternatives are there to ensuring the defence can mitigate as appropriate with proper representation of the Commission's findings?

 

Part Five
Judicial Role in the Orders

  1. The judge will have a duty to consider making an Order at the end of a case. The judicial role is key to the success of the Orders. It will be the judge who decides whether the information he has before him is sufficient for him to make an Order or not. He may make an Order based on the Commission's findings or direct that an enquiry be conducted into the defendant's means if one had not previously been instigated. Alternatively, the judge will be able to make an Order without an investigation, for example if evidence of substantial assets became apparent during the trial or the defendant accepts that he has the means to pay.

  2. As previously mentioned in Part 3, the Commission will have the power to investigate the defendant's partner and any other third party where it appears that the defendant has deliberately removed assets or that he is being financially supported in some way. Where such assets held by third parties are identified, the judge will be able to take them into account in deciding on the amount of the RDCO, which will not exceed the estimated total defence costs.

  3. Where other financial orders or penalties are being considered by the judge at the end of the case, these will be taken into account first in determining the defendant's ability to pay some or all of the RDCO.

  4. Training will be offered to Judges to help them determine whether a defendant should pay some or all of the defence costs based on the information before them. Judicial discretion will be exercised when an Order is made, but it will be important to ensure that defendants who can pay do pay. Training will include deciding whether there is sufficient information to make a decision, or whether further enquiries should be made before an Order is made. It will also provide guidance as to the priorities of the different financial orders a Judge may be considering making.

Q6    How much responsibility should the trial judge take in identifying cases suitable for an Order, when a case had previously not been referred to the SIU?

Q7    Does a 'duty to consider' making an Order in every case place an unnecessary burden on the judiciary?

 

Part Six
Appeals against the RDCO

  1. The nearest practical application to the new Orders under the current system is the legal aid contribution order. The contribution order is made at the start of the case. The defendant has the opportunity to decline legal aid at that stage if he does not wish to contribute at the level calculated by the court. There is no appeal against the level of a contribution order but the amount of the contribution is closely prescribed. Acquitted defendants will usually have any contributions that they have made refunded to them. The court has the discretion not to order a refund and there is no avenue of appeal against such a decision.

  2. Under the new system, the defendant will not know the extent of any costs he may be ordered to pay until the end of the case. It would seem to be appropriate that an avenue of appeal should be available. As the Order does not form part of the sentence, a separate mechanism will need to be established whereby the Divisional Court could deal with an appeal if it was asserted that the trial judge exercised his discretion unreasonably, ultra vires or without proper process. Defendants will be able to appeal against an Order made by the Court by way of Judicial Review to the High Court or by way of case stated as set out in Schedule 4 of the Access to Justice Act 1999.

  3. Similarly, if the Commission provided the Court with an estimated figure for defence costs, and that figure proved to be too high, the defendant could request that the matter be listed in Court for the judge to reconsider the Order he had made based on the Commission's findings. As previously stated, the defence will be provided with the report compiled by the Commission in advance of any hearing. This would allow for any queries, either regarding the available assets of the defendant or the estimated defence costs, to be addressed prior to the hearing in the Crown Court. In the event that matters cannot be resolved prior to the hearing, the defence will be able to question the findings in court, where the Commission may be represented and there will be a chance to mitigate for the defendant. The Commission would need to be informed by the defence, through the Crown Court, that they would seek to challenge any of the findings.

Q8    Should there be a power in the Court of Appeal to reconsider an RDCO made in the Crown Court if an appeal against conviction is allowed

Q9    The premise of the Order is that the defendant has sufficient funds to pay; how far should mitigation be allowed to dispute a figure arrived at by the SIU?

 

Part Seven
Enforcement of the RDCO

  1. It is proposed that the Order would be considered a civil debt, enforceable either through the county court and the High Court, or through the magistrates' court. Our view is that it would be inappropriate to treat the outstanding debt of an RDCO as a summary conviction. The Order is not part of the sentence and is not intended to be punitive.

  2. County courts and the High Court have a variety of methods of enforcement available:

    • A warrant of execution in the county court is initially issued against money, but where that is not forthcoming a bailiff, who is employed as a civil servant, can subsequently remove goods, for amounts of less than £5000. The county court can charge for the issue of a warrant.
    • A writ of fieri facias in the High Court is also a warrant against property for amounts over £600, which can be seized by the Sheriff's Officer. The officer is a privately paid bailiff, who can charge for 'removal and sale' of the goods. The debtor meets all costs.
    • A Garnishee Order, (also available in the magistrates' court) can be issued in both the county court and the High Court. The creditor has to be sure that the debtor has the account to which he intends to aim the order and also that there are sufficient funds for the order to be effective. The cost of issuing an order is borne by the debtor.
    • A Charging Order allows the judgement creditor to register a right over another's property to protect a debt charged on the property. The charge must be settled in the first instance after sale of the property.
    • Mareva Injunctions are an inherent power of the High Court to freeze assets. The judge has the power to restrict the movement of property prior to an order being made.

  3. Magistrates' courts have two routes of enforcement available to them. First, in respect of a sum due after the Crown Court has imposed a financial penalty, the outstanding sum is treated as if it were imposed by the magistrates' court on summary conviction. Magistrates' courts may impose a term of imprisonment for the non-payment of fines, subject to strict tests being met. They may also impose a default sentence for non-payment of a confiscation order. Second, in respect of sums due under a costs order, that payment may be recovered summarily as a civil debt through a magistrates' court. Magistrates' courts may issue distress warrants, where the court is authorised to seize property, which could include cash, by certificated bailiffs, who are privately contracted by magistrates' courts. Magistrates' courts can apply to the county court to issue a garnishee order, which is directed at money owed to the debtor by a third party. This order is expensive and as a result is rarely used by the magistrates' courts. Magistrates' courts do not have the power to appoint receivers and are reliant on prosecutors, such as those from the Central Confiscation Unit, to arrange for the appointment of one.

  4. Both the county court and the High Court are provided with sufficient powers to enforce the debt and all costs incurred in the process could be met by the debtor. The Order is for costs to a third party, namely the Commission. The Commission could apply to enforce the Order once the Crown Court has determined the amount to be paid, usually after the costs have been taxed and then proceed by way of distress warrant issued by the court. If there was a better prospect of recovery through the civil courts then that avenue could be pursued. In many instances, the sum involved would be likely to make it appropriate for it to be dealt with by the High Court.

  5. It is also proposed to empower the Commission to appoint receivers who can compel defendants to repatriate their assets. This, we consider, will also facilitate the enforcement process.

Q10    Should a single receiver be appointed in relation to all the different orders that required enforcement?

 



Annex A

Current arrangements for determining a legal aid application

In deciding whether it is in the interests of justice that legal aid should be granted, the court will take into account whether the charge against the applicant is so serious that they may be imprisoned or lose their job if convicted, or if there is a substantial point of law to be considered in judging the case. The Court will also take into account whether the applicant is unable to state his or her own case, either because he or she does not speak English well, or is mentally ill, or suffers from some form of disability which will make it difficult for him or her to understand the proceedings. This test will remain in its current form under the new scheme.

Currently, a means test is carried out in all applications for legal aid in criminal cases. An applicant will be judged to require financial assistance if they or their partner receive a passporting benefit. In all other cases the court will calculate the person's disposable income and disposable capital in order to determine whether financial assistance is required and whether a contribution is payable. The court considers the likely cost of legal representation in the case and whether the applicant would be able to afford it without recourse to legal aid. Where assistance is required, legal aid may be granted without a contribution if weekly disposable income is less than £52 and disposable capital is below £3000. Where disposable capital or income are above these limits, the court may order the applicant to pay a contribution towards the costs of representation. There is no upper limit to the amount of disposable income or capital an applicant may have, the amount of contribution payable is adjusted accordingly.

A contribution from income has to be paid weekly (or every other week or monthly if the court allows) until the end of the case or until the court withdraws or revokes the contribution order.

Note 1: Schedule 3, Determination of Disposable Income and Disposable Capital, of the Legal Aid in Criminal and Care Proceedings (General) Regulations 1989

 

 

 



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