Ministry of Justice - Crown Court Means Testing
THOMPSONS SOLICITORS’ RESPONSE - FEBRUARY 2009
Thompsons Solicitors is the UK’s most experienced trade union law firm. It operates a specialist criminal law unit from six regional centres providing national coverage for union members accused of work-related crimes.
The Thompsons criminal law unit achieves enormous success, with 95% of referrals either dealt with as “no further action” or our clients are acquitted.
The case for reform
Thompsons supports any government initiative which will increase access to justice and fairness in the justice system and reasonable contributions by the guilty towards the costs of their prosecution and their defence.
We are very concerned that these proposals could mean that those who know they are innocent face such a costs burden prior to trial that they will be under inappropriately severe pressure to either be unrepresented or to enter a guilty plea because they could not cope with the financial burden.
This cannot be the intention of a government that is committed to fairness. Suggesting that all defendants will be entitled to legal aid on the basis of means is disingenuous when for some defendants the level of contribution will be so high that the full costs of the defence are met and if that is the case the term ‘legal aid’ is robbed of all meaning. Giving legal aid to all defendants is not fairness if it comes at too high a price.
Means testing in the Magistrates’ court
Thompsons disagrees with the premise of this consultation paper that means testing in the Magistrates’ court is working. This is an entirely wrong perception. Many of our clients are excluded from defending criminal allegations with the benefit of legal aid on the basis of their means.
Thompsons’ clients come to us as referrals through their trade union. They are typically public servants such as teachers, nurses, firefighters, ambulance drivers and paramedics – professional people who as a consequence of the criminal allegation are suspended from their employment on full pay, without prior experience of criminal accusations, of good character and in the majority of cases, determined to “clear their names”.
Means testing was re-introduced in the magistrates’ court in April 2007 following the earlier severe cut in the rate of remuneration in magistrates’ court work with the roll up of travel and waiting into standard fees. The earlier system of means testing was abolished because the costs of assessment and enforcement was disproportionate to the benefit. Whatever success is claimed for means testing in the magistrates court it is an all or nothing system in which the costs of collecting contributions have been avoided, but what is suggested for the crown court is extremely different and hugely complex.
Fifty per cent of our clients fail the means test in the magistrates court. We defend them privately and most of them succeed (in 2007 the Thompsons success rate was 95%).
The cumulative effect of the cuts in the rate of pay, magistrates court means testing and now the crown court litigator fee scheme is that it has become clear that legal aid rates do not cover the costs of doing business. The grim reality is that proper costs recovery through the Central funds route is necessary for us to be able to maintain a proper level of service to our clients.
The assessment process in the crown court
If means testing is to be introduced in the Crown Court, then it is imperative that the threshold is not set so low as to exclude hard working families. Improvements in pay in the public sector and the growth in home ownership means that a whole new raft of working families may be excluded.
The consultation suggests that the threshold for disposable income will be set at £3,398, the same figure the Legal Services Commission uses to assess applications for legal aid in the Magistrates’ court. This is unrealistic and would exclude all hard working families.
Most of our clients fail the means test in the magistrates’ court. Research supports our experience that working families on the minimum wage will not be eligible for legal aid due to the receipt of tax credits. (New Policy Institute: Means testing in the magistrates' court: is this really what parliament intended? December 2005).
It is suggested that the capital threshold might be £3,000, or £30,000 or more equity in the primary residence.
The average teaching salary in London, with allowances for dependants, means that would require the income threshold to be set at around £100,000 for a working couple and assuming that the couple own their own home and have children we are extremely concerned that the threshold values for saving, equity and disposable income are set so low that the level of contribution that would be demanded during a lifetime of a case would be iniquitous.
Only if the threshold is set at the right level can Thompsons accept a means testing system in principle. The outline contained within the consultation document is simply too vague for meaningful debate to take place. In our view it is wholly inappropriate to consider implementing such a scheme in the absence of a thorough and detailed analysis prior to the implementation of the pilot scheme. Because in the pilot scheme there would be real hard working families trapped by the inappropriate financial burdens imposed due a postcode lottery.
The impact of the likely contribution levels should be tested thoroughly on a number of defendants who would be affected by the scheme. If such an analysis is not undertaken the impact of the scheme cannot have been properly assessed.
It appears that the current system of Recovery Defence Costs Orders (RDCOs) and their application may be unnecessarily discarded as a method of recovering costs from defendants where the court finds that circumstances would justify doing so. If this system were to be used more effectively and with more frequency it would ensure those individuals that the court, (having had regard to all the details of the case), should contribute to the costs of their defence would properly do so.
We suggest that this is a much fairer method of determining which defendant should contribute to the costs of their defence than simply on the basis of means.
Thompsons believes that the administration costs of recovery and enforcement are highly likely to negate any benefit to the Legal Aid budget. The suggested methods of enforcement are extensive and in themselves will generate a further administrative burden upon the courts.
It appears to us that the scheme proposed envisages that innocent individuals will be further persecuted for being at the wrong end of a prosecution as enforcement proceedings may be taken for the recovery of contributions during the lifetime of the case.
A defendant who is subsequently acquitted will not be able to escape the stigma of enforcement proceedings taken against them during the lifetime of their case or the negative impact on their credit rating. We are very concerned that if it is truly envisaged that draconian enforcement proceedings are possible prior to trial that this will add a further pressure on innocent defendants to enter guilty pleas.
Not only will the defendant suffer but family members will also be subjected to the indignity of enforcement proceedings.
We refer to the real case studies below where the means test as currently proposed would exclude innocent people and force act as an incentive to enter a guilty plea.
Case study 1. Ms B, a nurse, was accused of stealing low value goods from a local supermarket. She was seen on CCTV footage to leave without paying. Ms B was suffering from a mental illness at the time of the alleged crime and had no memory or knowledge or it. In addition, she did not consider her behaviour to be dishonest, but rather a manifestation of her mental illness over which she had no control.
Medical expert opinion backed her defence. Thompsons advised her to plead not guilty on the basis of a lack of mens rea.
Ms B had an income of £16,000. Her partner’s income was £21,000. They had no dependants but did have £80,000 equity in their home, with no mortgage.
Using the LSC calculator, Ms B and her partner had a joint disposable income of £16,723. As a result she would have been expected to pay income based contributions towards the cost of her representation for the life of the case.
As well as the income based contributions, Ms B would, on the capital based test, be liable for the balance of her legal aid costs following conviction.
Thompsons asked Ms B if she would have taken the advice to plead not guilty if she had known she might have to contribute around £200 a month to cover legal costs.
She was clear that if her Crown Court legal aid had been subject to means testing that she would not have taken that advice. On a guilty plea she would significantly reduce her exposure to representation costs and, as a result of the low value nature of the theft, would probably receive a conditional discharge.
She would therefore have been criminalised for an offence for which she had a viable defence, simply as a result of her unwillingness / inability to fund a defence.
Case study 2. Ms C, a healthcare assistant, was charged with 28 counts of theft from her employer. The hospital at which she worked had been subject to a spate of thefts from both staff members and patients. Our client was charged on the basis that she was seen “acting suspiciously” on occasions prior to five of the allegations and that the thefts seem to occur on wards were she worked.
She denied involvement in any of the offences.
We advised a not guilty plea. Many of the allegations were without any evidence to point to our client’s involvement and had simply been ‘tacked on.’ Five of the allegations about our client’s behaviour required some explanation from her.
Ms C had an income of £16,000. She had no dependants and lived with her parents following eviction from her rented home for rent arrears.
Using the LSC calculator she would have had a disposable income of £6,804.50. As a result, she would have been expected to pay income based contributions towards the cost of her representation for the life of the case.
Ms C was categoric in her view that she would not be able to afford to pay £200 a month towards the cost of her representation. She said that if she was expected to pay that amount she would either have to do without a solicitor or plead guilty.
She also stated that if she had pleaded guilty she would have attempted to mitigate without representation as she would not want to pay a month’s contribution for representation.
Response to the questions
Because of our fundamental opposition to these proposals we do not propose to respond in detail to each of the questions.
Question 1: Should individuals who are committed, sent or transferred for trial before the Crown Court be automatically passported through the Interests of Justice Test? (p. 12)
Yes. They are now and the system should remain.
Question 2: Do you have any views on our proposed liabilities for those defendants who fail to provide evidence of their income and or capital status? (p. 24)
The burden of providing sufficient evidence is yet another weight placed on over stretched criminal legal aid practitioners. There should be a reasonable excuse provision with each case considered on a case by case basis before sanctions are imposed.
We also have reservations about how such a process will work. It is not clear whether there will be a hearing with a person represented or who will pay for that any form of appeal.
Question 3: Are there any other areas of expenditure which should reasonably be included in the assessment of disposable income? (p. 25)
The current system does not take into consideration loan debt payments, credit card debts or essential transport costs such as travelling to work. It is unrealistic to assess disposable income at a figure which is not truly representative of the sum available. Many families have extremely tight budgets with expenditure committed to hire purchase agreements, private child care and endowment plans - expenditure which simply cannot be avoided or cancelled and any scheme should therefore come to a realistic calculation of disposable income.
Question 4: Is it reasonable to take account of all truly disposable income above £3,398 when setting the level of the income contribution? (p. 26)
No. As above In calculating disposable income credit is only allowed for absolute necessities of household expenditure. Using this figure as the basis to calculate disposable income will result in a flawed view of the funds available. This is unreasonable and will result in families sacrificing essentials to attempt to meet the contribution or face draconian enforcement proceedings.
Question 5: Are there other factors which ought to be considered in determining how to cap the income contribution payable? (p. 26)
Income contribution should be capped by duration – three months for example. It would be completely unfair to a defendant in a court with a two year listing backlog to contribute for the whole lifetime of the case.
Question 6: In cases where a defendant has little or no capital resources, but retains their employment following conviction, is it appropriate that income contributions continue post conviction until all defence costs have been met? (p. 26).
As we have stated elsewhere in our response we are extremely concerned that contribution levels must not be set at such high levels that they induce guilty pleas. We were very surprised to see the reference to “all defence costs” in this question as we had not envisaged that any means testing system would have as its objective such a high level of recovery as this would inevitably produce the inappropriate pressure to plead guilty.
The proposal puts innocent defendants in an invidious position. They are effectively being offered an inducement to plead guilty or plea bargain. This undermines the whole principle of our justice system.
Someone might be persuaded to plead guilty early on knowing they will lose their job anyway but can at least pay less through a guilty plea. The consideration by the defendant to enter an appropriate plea should not be a financial balancing act.
Equally an innocent person who believes there is an outside chance that they may retain their job if they plea bargain might be persuaded to plead guilty, knowing also that they will pay less.
There may also be situations where someone knows that they will keep their job if they plead guilty early on (and that this will mean they have to pay less) so does so to get the case and sentencing out of the way quickly.
Question 7: Do you think that we should pay a flat fee to solicitors for supporting the provision of evidence in every Crown Court case or should the £4 million be divided in such a way that it reflects the little and great amount of work at each end of the scale? (p. 27)
We welcome the fact that this work is recognised as an additional burden on solicitors.
However, the amount of work carried out by solicitors in supporting the provision of evidence is underestimated. There is a great deal of work required to put the necessary forms and data together and to keep the client updated as to costs. Our clients are professionals who therefore have complex financial affairs and so the work on these takes longer. A flat fee for this work is inadequate.
Payment for this work should instead be a bolt on, on an hourly basis to the graduated fee justifiable on taxation.
Question 8: What factors ought to be considered in deciding whether or not to apply for an order for sale? (p. 30)
We are opposed to orders for sale and can conceive of no circumstance where an order for sale is appropriate. Apart from it being wholly unjust in circumstances where the defendant did not make their living from crime, it cannot be economic. The costs may well outweigh the outstanding debt being sought.
Question 9: Applying for an order for sale is very much seen by MoJ as a last resort. What other mechanisms might be adopted to ensure a defendant convicted at the Crown Court meets their defence costs? (p. 30)
Please see our response to Q8.
Question 10: What range of capital assets should be considered for the purposes of the final contribution order? (p. 30)
Pensions should be excluded. To not do so is condemning people, who otherwise have means of paying, to poverty in retirement and reliance on the state. Pensions should be protected as a resource for retirement and not to pay costs of defence. As in the sale of a home, dependants will become innocent victims of an order that does not include pensions.
Question 11: What other types of support can we offer to defendants to help them pay off their contribution order? (p.31)
It is not clear what “incentives” are proposed. We suggest however that offering incentives to pay does not represent support to defendants who cannot afford to pay.
Question 12: Do you have any views on our proposals for committals for sentence? (p.32)
Not all cases are straightforward or easy to dispose of. Creating a system where, because a defendant is not eligible for legal aid in the Magistrates’ court they are not eligible to legal aid in the Crown Court is simply unjust. The result will be unrepresented people in the Crown Court, a situation which we do not believe the MoJ would want to create.
It will also be a disincentive to plead at an early stage in the magistrate’s court when a defendant knows they will end up in the Crown Court anyway. It is likely to be the end of short committals in the magistrates’ court.
The following case study demonstrates our point:
Our client, a 62 year old man of previous good character was charged with one count of sexual assault. A guilty plea was entered at the first opportunity in the Magistrate’s Court and, due to the seriousness of the case, the matter was committed to the Crown Court for sentence.
The defendant had suffered poor health and investigations were undertaken to consider if this had an impact on his offending behaviour. Opinion was sought from a consultant neuropsychiatrist and evidence gathered from the defendant’s family to record the deterioration in his health.
The defendant was diagnosed as suffering from primary dementia due to frontal lobe damage.
As a result of these investigations and the diagnosis, the sentence hearing could not take place for some months after the committal hearing. The information obtained was essential for the sentencing judge. Without legal aid representation the client may well have ended up in the Crown Court for sentencing without the mitigating evidence of his condition being known.
This case is not exceptional and underlines why it is wholly inappropriate to deprive defendants of the benefit of legal aid representation when a case is committed to the Crown Court for sentence.
The graduated litigator fee scheme is, incidentally, absurd in the rate of pay and this is an example of a firm doing a very large amount work without remuneration.
Question 13: Do you have any views on our proposals for appeals? (p. 34)
It will be a huge disincentive to individuals to appeal if they have to pay all the costs of their case. The appeal process is in place to correct injustices and for a defendant to have to consider the financial consequences of an appeal is unacceptable. It will lead to miscarriages of justice going unchallenged and will undermine the principle of fairness in the justice system.
Question 14: Do you have any views on the initial impact assessment, including any potential adverse impact on any particular group of people, what steps should be taken to mitigate this, and anything else the full impact assessment should cover? (pp 40-79)
Our responses throughout this document demonstrate our grave concerns about the impact these proposals will have on particular groups.
Question 15: Do you have any other comments?
The proposals set out in this consultation document contain insufficient detail for any meaningful consultation to take place. As suggested throughout this response the implementation of this proposed system of means testing will be wholly flawed unless careful and detailed consideration and analysis is carried out.
We believe that the proposals should be postponed until such further research is carried out. Only when such data is available can a meaningful consultation take place.