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The merits of legal aid in the magistrates courts revisited

Young, Richard and Wilcox, Aidan (2007) The merits of legal aid in the magistrates courts revisited. Criminal Law Review. pp. 107-128. ISSN 0011-135X

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    Abstract

    The study providing the data for this paper was commissioned in part due to policy makers’ concerns about inconsistency
    between courts in the granting of legal aid. The research and this paper were undertaken equally by both authors. We identified
    that a large part of the inconsistency resulted from different weight that decision-makers placed on the statutory criteria and that
    this could be reduced by redesign of the criminal legal aid application form. Our recommendations were adopted, resulting in
    redesign of these forms.

    Item Type: Article
    Additional Information: UoA 40 (Social Work and Social Policy and Administration) © Sweet & Maxwell
    Subjects: H Social Sciences > HN Social history and conditions. Social problems. Social reform
    H Social Sciences > H Social Sciences (General)
    Schools: School of Human and Health Sciences
    Related URLs:
    References:

    1 Professor of Law and Policy Research, School of Law, University of Bristol.
    2 Senior Research Officer, Applied Criminology Centre, University of Huddersfield.
    3 See the historical survey by T. Goriely, ‘‘The Development of Criminal Legal Aid in
    England and Wales’’ in R. Young and D. Wall (eds), Access to Criminal Justice (Blackstone
    Press, London, 1996).
    4 Lord Carter, Legal Aid: a Market-based Approach to Reform (July 2006, available from
    www.legalaidprocurementreview.gov.uk/), p.18, para.12.
    5 The causes of this rise are both complex and contested: E. Cape and R. Moorhead,
    Demand Induced Supply? Identifying Cost Drivers in Criminal Defence Work (Legal Services
    Research Centre, Legal Services Commission, London, 2005).
    6 R. Abel, English Lawyers between Market and State (Oxford University Press, 2004), Chs
    7–8.
    7 Legal Services Commission and Department of Constitutional Affairs, Legal
    Aid: a Sustainable Future (Consultation Paper, July 2006, available from
    www.dca.gov.uk/consult/confr.htm).
    8 For practitioner views, see A. Keogh, ‘‘Carter—-the Crunch’’ (2006) 156 N.L.J. 1149;
    G. Vos, ‘‘A Silver Lining?’’ (2006) Counsel, August, 8–10.9 Most notably, the ‘‘gargantuan’’ Criminal Justice Act 2003 ‘‘weighing in at 339 sections,
    38 Schedules and over 450 pages in the Stationery Office version’’: R. Taylor, M. Wasik and
    R. Leng, Blackstone’s Guide to the Criminal Justice Act 2003 (Oxford University Press, 2004),
    p.xi.
    10 The changes themselves are brought about through subordinate legislation: Criminal
    Defence Service (Financial Eligiblity) Regulations 2006; Criminal Defence Service
    (Representation Orders and Consequential Amendments) Regulations 2006; Criminal
    Defence Service (Representation Orders: Appeals etc.) Regulations 2006; and, Criminal
    Defence Service (General) (No.2) (Amendment) Regulations 2006.
    11 See, for example, http://news.bbc.co.uk/1/hi/uk/3301303.stm, and http://news.bbc.co.uk/
    1/hi/england/norfolk/4623642.stm (visited September 18, 2006).
    12 See, for example, Law Society Gazette, ‘‘CriminalDefence Service Act:Mean and Lean?’’,
    May 11, 2006.
    13 A. Wilcox and R. Young, Understanding the Interests of Justice: a Study
    of Discretion in the Determination of Applications for Representation Orders in
    Magistrates’ Courts (Legal Services Commission, London, 2006), available from
    www.legalservices.gov.uk/docs/news/Understandingtheinterestsofjustice-finalreport3Nov05.pdf (visited
    September 18, 2006) (hereafter Wilcox and Young (2006)).
    14 R. Young, T. Moloney and A. Sanders, In the Interests of Justice? The Determination of
    Criminal Legal Aid Applications by Magistrates’ Courts in England and Wales: Report to the Legal
    Aid Board (University of Birmingham, 1992) (hereafter Young et al. (1992)).
    15 The criteria derived from the Report of the Departmental Committee, Legal Aid in
    Criminal Proceedings, Cmnd. 2934 (1966) (HMSO, London), at para.180. The Committee guidelines and were first put on a statutory basis by the Legal Aid Act 1988.
    16 For the sake of convenience, in this article we use the terms ‘‘court clerks’’ and ‘‘decisionmakers’’
    to encompass legal advisers as well as administrative staff acting under delegated
    powers.
    17 This ‘‘right of appeal’’ has been retained under the 2006 Act.
    18 This case law is discussed in Wilcox and Young (2006), Chs 5–6, and touched upon
    later in this article.
    19 Department for Constitutional Affairs, Criminal Defence Service Bill, Consultation
    Number CP 17/04, CM 6194, para.40 and para.45.20 House of Commons Constitutional Affairs Committee, Draft Criminal Defence Service
    Bill, Fifth Report of Session 2003–04, HC 746-1, para.74 and para.67.
    21 Ibid., para.67 and para.87.
    22 We are grateful to the Legal Services Commission for funding this research, and to
    Steve Parkin who liaised with us throughout the research on behalf of the Commission. Steve
    also provided some valuable comments on an earlier draft of this article. We also thank the
    Department for Constitutional Affairs for providing access to court files. The views expressed
    in this article are those of the authors alone, and any errors are solely our responsibility.
    23 Young et al. (1992). The Legal Aid Board was abolished and replaced by the Legal
    Services Commission under the Access to Justice Act 1999.
    24 We over-sampled refusals in order to ensure sufficient numbers for meaningful analysis
    of grant rates by offence. In the quantitative data presented in this article the weighting of
    refusals has been reduced back so that unweighted (true) grant rates are shown. See further
    Wilcox and Young (2006), p.18.25 We attempted to include the 6 courts studied in the 1992 research but this was possible
    in only 3 instances.
    26 During the course of the fieldwork, we noted that differences in approach to poorlycompleted
    applications rendered official rates potentially unreliable. Specifically, some courts
    tended to return such applications rather than refuse them (see further Wilcox and Young
    (2006), pp.25–30). As a result, we do not place much emphasis on differences between courts
    with officially high and low rates of grant.
    27 We interviewed a total of 25 court clerks as in one case two decision makers took part in
    the same interview. The weighted sample was drawn from applications determined in 2004.
    28 See R. Lempert, ‘‘Discretion in a Behavioural Perspective: the Case of a Public Housing
    Eviction Board’’ in K. Hawkins (ed.), The Uses of Discretion (Clarendon Press, Oxford, 1992).29 This was confirmed in the separate research by D. Wall and A.Wood, The Administration
    of Legal Aid in the Magistrates’ Courts of England and Wales: Final Report to the ESRC (March
    1994), p.31.
    30 These two factors were identified as crucial to the colonisation of magistrates’ courts by
    defence lawyers in the analysis presented by M. McConville, J. Hodgson, L. Bridges and A.
    Pavlovic, Standing Accused: the Organisation and Practices of Criminal Defence Lawyers in Britain
    (Clarendon Press, Oxford, 1994), pp.6–7.
    31 R. Young, ‘‘Will Widgery Do?: Courts Clerks, Discretion,, and the Determination of
    Legal Aid Applications’’ in R. Young and D.Wall (eds), Access to Criminal Justice (Blackstone
    Press, London, 1996), at p.161.
    32 See, for example, Lord Chancellor’s Department, Legal Aid––Targeting Need: the future
    of Publicly Funded Help in Solving Legal Problems and Disputes in England and Wales, Cm.2854
    (1995) (HMSO, London), para.10.11.
    33 R. Young, ‘‘The Merits of Legal Aid in Magistrates’ Courts’’ [1993] Crim. L.R. 336 at
    p.343, fn.22.
    34 See further, Wilcox and Young (2006), pp.12–13.35 See, in particular, Quaranta v Switzerland (1991) E.C.H.R. Series A 205; Benham v
    United Kingdom (1996) 22 E.H.R.R. 293.
    36 See R. v Brigg Justices Ex p. Lynch (1983) 148 J.P. 214; R. v Gravesham Magistrates’
    Court Ex p. Baker, Times Law Reports, April 30, 1997; R. v Scunthorpe Justices Ex p. S, Times
    Law Reports, March 5, 1998; and R. v Chester Magistrates’ Court Ex p. Ball (1999) 163 J.P.
    757.
    37 [2005] EWHC 1829.38 What that (presumably evidential) standard involves was not spelt out.
    39 The names of the courts are fictitious in order to preserve anonymity.
    40 ‘‘DM1’’ stands for decision-maker 1.
    41 Criminal Defence Service, Guidance to Courts on Grant of a Right to Representation and
    Recovery of Defence Costs Orders (November 2002) (hereafter CDS (2002)).42 Figures were provided by the Legal Services Commission.We should stress that the very
    high grant rate applies to the population of defendants who apply for legal aid. In most minor
    cases no application is made.The Government has stated that less than 30%of those appearing
    before magistrates’ courts receive public funding: Final Regulatory Impact Assessment:
    Criminal Defence Service Act 2006, para.5.17, available at www.dca.gov.uk/risk/crime-defenceact-
    ria.pdf (visited September 18, 2006).
    43 Wilcox and Young (2006), Ch.5.
    44 Wilcox and Young (2006), pp.19–24 and 28.
    45 Wilcox and Young (2006), pp.72–74.46 In addition, 24% of interviewees spontaneously mentioned that likely plea was an
    important factor, while 16% similarly cited the age of the defendant. On factors bearing on
    the interests of justice test other than the Widgery criteria, see Wilcox and Young (2006),
    Ch.6.
    47 Wilcox and Young (2006), at pp.40–45, 132 and Ch.8, respectively.
    48 The ‘‘. . . total number of offenders sentenced to immediate custody increased by 83%
    from 1993 to 2003, with magistrates imposing 185% more custodial sentences at the end of
    the period compared to the beginning (compared to 34% more imposed in the Crown Court)
    . . .’’: Cape and Moorhead, fn.5 above, p.45.49 Wilcox and Young (2006), pp.65–67.50 See A. Ashworth and M. Redmayne, The Criminal Process (3rd edn, Oxford University
    Press, 2005), at p.176.
    51 Young et al. (1992), p.53.
    52 Wilcox and Young (2006), p.102.
    53 Misuse of Drugs Act 1971 (Modification) (No.2) Order 2003 (SI 2003/3201). The effect
    of the re-classification was to reduce the maximum sentence for possession from five years to
    two years’ imprisonment.
    54 This is likely to be true also of possessing an offensive weapon given contemporary
    concerns about knife-related offences. For discussion see C. Eades, ‘‘Knife Crime’’: Ineffective
    Reactions to a Distracting problem?—a Review of Evidence and Policy (Centre for Crime and
    Criminal Justice Studies, Kings College London, 2006).55 We have excluded from this table non-convictions (where the case was discontinued, or
    the defendant acquitted), and cases where the conviction was not recorded. The category
    ‘‘Other’’ contains disqualifications and bind-overs. The custody disposal includes one
    suspended sentence.
    56 We have already noted how court clerks have continued to give greatest weight by far to
    the likely loss of liberty criterion.
    57 For a full analysis, see Wilcox and Young (2006), Ch.5.
    58 CDS (2002), p.16.59 ‘‘They would have to be of impeccable character’’ is how one deputy clerk to the justices
    put it, ‘‘someone who has a responsible position—deputy clerk to the justices, for example’’:
    Young, fn.32 above, at p.340.
    60 R. v Havering Juvenile Court Ex p. Buckley, Lexis CO/554/83, July 12, 1983. When
    this case was decided, some prosecutions were still conducted by the police in person. The
    advent of the Crown Prosecution Service meant, for a while, that all routine prosecutions
    involved legal representation, but the CPS now makes use of lay presenters for straightforward
    prosecutions.
    61 R. v Liverpool City Magistrates Ex p. McGhee (1994) 158 J.P. 275
    62 R. v Scunthorpe Justices Ex p. S, Times Law Reports, March 5, 1998.
    63 R. v Gravesham Magistrates’ Court Ex p. Baker, Times Law Reports, April 30, 1997.
    64 fn.63 above.
    65 R. v Cambridge Crown Court Ex p. Hagi (1979) 144 J.P. 145. See also R. v Gravesham
    Magistrates’ Court Ex p. Baker, Times Law Reports, April 30, 1997.66 Times Law Reports, March 5, 1998.
    67 See also R. v Chester Magistrates’ Court Ex p. Ball (1999) 163 J.P. 757 in which two
    adults of good character were charged with offences under s.5 of the Public Order Act 1986
    but were denied legal aid on the ground that the offence was minor and that a court clerk’s
    assistance would be sufficient. The Divisional Court quashed the decision and remitted it to
    a differently constituted bench who were directed to pay particular attention to the loss of
    reputation criterion.
    68 For further analysis see Wilcox and Young (2006), pp.48–49.
    69 Young et al. (1992), p.23.
    70 The same point applies in relation to all of the criteria relating to legal complexity (see
    ss.5f, 5g, 5h and 5i of Form A (unable to understand proceedings, trace/interview witnesses,
    expert cross-examination and someone else’s interests, respectively). Form A is reproduced
    as Appendix 3 to Wilcox and Young (2006).71 Note how the statutory word ‘‘may’’ has become ‘‘shall’’ on Form A. On this point, see
    our earlier discussion of the ‘‘question of law’’ criterion.
    72 CDS (2002), pp.12–18.
    73 Our various recommendations are set out in Wilcox and Young (2006), Ch.10.74 See Legal Services Commission, (2006) 51 Focus p.7, available at
    www.legalservices.gov.uk/docs/cls main/Focus51.pdf (visited September 18, 2006).
    75 The use of the word ‘‘act’’ (in lower case) is unfortunate. We had suggested the
    word ‘‘statute’’ but this presumably (and somewhat ironically) fell foul of the Plain English
    Campaign, whose advice the Legal Services Commission followed when seeking to make the
    form understandable to defendants: Legal Services Commission, Focus on CDS, Issue 20, p.10
    (available at www.legalservices.gov.uk/docs/cds main/Focus on CDS 20.pdf ) (visited September
    18, 2006).
    76 Legal Services Commission, (2006) 51 Focus, p.7. We understand that this warning was
    drawn up primarily with the means test in mind but it is evidently capable of being interpreted
    as also encompassing the merits test.77 Ibid. See also Legal Services Commission, Focus on CDS, Issue 20, p.8: ‘‘To ensure
    consistency in the application of the interests of justice test, the LSC has amended the process
    . . .’’
    78 Available at www.dca.gov.uk/risk/crime-defence-act-ria.pdf para. 4.21 (visited September
    18, 2006) (hereafter Final Regulatory Impact Assessment, 2006).
    79 There is a large and growing literature on this point. See, for example, A. Wilcox,
    ‘‘Evidence Based Youth Justice: Some Valuable Lessons from an Evaluation for the Youth
    Justice Board’’ (2003) 3 Youth Justice 19; M. Naughton, ‘‘‘Evidence-based-policy’ and the
    Government of the Criminal Justice System—Only if the Evidence Fits!’’ (2005) 25 Critical
    Social Policy 47.
    80 K. Hawkins, ‘‘The Use of Legal Discretion: Perspectives from Law and Social Science’’
    in Hawkins, fn.27 above, at p.45.81 See, generally, M. Hertogh and S. Halliday (eds) Judicial Review and Bureaucratic Impact
    (Cambridge: Cambridge University Press, 2004).

    Depositing User: Sara Taylor
    Date Deposited: 05 Dec 2007
    Last Modified: 28 Jul 2010 19:21
    URI: http://eprints.hud.ac.uk/id/eprint/456

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