Law Weblog

Can pay should pay – Criminal Legal Aid reforms

The Criminal Defence Service Act 2006 includes provisions for the introduction of a new means testing scheme under which high earners will no longer receive free criminal legal aid representation.

The new scheme will be implemented in the Magistrates’ Courts from 2 October 2006, and is likely to be rolled out across Crown Courts by the end of 2007. The test will be simple to understand and straightforward to administer, it will be based on a series of upper and lower thresholds that will be weighted to take account of household composition.

Higher earners will be expected to meet the full costs of representation before the Magistrates’ Court, although in the Crown Court a system of contributions will be applied. Privately funded defendants who are subsequently acquitted will in the vast majority of cases be able to recover some or all of their legal costs from central funds.

In the Magistrates’ Courts alone annual savings could be at least £35 million.

An applicant wishing to qualify for criminal legal aid will need to satisfy both the existing “Interests of Justice” test, as well as the new means test.
The “Interests of Justice” test seeks to determine whether the defendant needs to be represented by a lawyer (e.g.; where conviction is likely to result in a custodial sentence, or where conviction is likely to result in a loss of livelihood).
The means test seeks to determine whether it is right that the state should pay for that defence, or whether such costs should fall to the defendant.

QCs or eggs?

For some people Easter is a religious festival, for others it is the end of 40 days self-denial reward with chocolate eggs. For Law teachers it is the time new silks – QCs – are appointed, but not this year.

The independent body “Queen’s Counsel Appointments” has revealed that the first round of new appointments will not happen on the traditional day this year, Maundy Thursday (13 April).

The independent panel reviews applications, makes selections and then forwards the names of future QCs to the Department for Constitutional Affairs for approval.

In 2003 the then Lord Chancellor, Lord Irvine, suspended the QC competition; selection was transferred to the new body, which is a product of the Bar Council and Law Society. The new procedure effectively removed the Government’s role in making what was seen as a state endorsement of individuals in the profession.
With no QC appointments till the summer Law teachers will, for the first time, be seen eating chocolate eggs this year.

Roles of the Lord Chancellor and Lord Chief Justice

The “Concordat” (or agreement) lays down the role of the Lord Chancellor and the Lord Chief Justice.

From 3 April the Lord Chancellor’s role as a judge will cease.
The Lord Chief Justice will become the head of the judiciary in England and Wales.

Judicial Independence and Rule of Law
For the first time there will be a guarantee of judicial independence enshrined in statute. This guarantee is backed up by binding the Lord Chancellor and Ministers of the Crown to uphold judicial independence. The Act also formally recognises the constitutional principle of the Rule of Law and the Lord Chancellor’s role in relation to that principle.

JAC
The Judicial Appointments Commission (JAC) replaces the Commission for Judicial Appointments.
JAC selects applicants for judicial office, passes the names to the Lord Chancellor who accepts or rejects them. The accepted names are forwarded to The Queen for appointment. (JAC is not involved in selecting judges above High Court level).

JACO
In addition the Judicial Conduct and Appointments Ombudsman (JACO) is established to give deal with judicial disciplinary matters. The Judicial Discipline (Prescribed Procedures) Regulations 2006 lays down the procedure to be adopted.

Victim’s advocates, pilot in Manchester

Relatives of murder or manslaughter victims in Manchester will have the opportunity to make a personal statement in court before sentence, in trials where someone is charged with murder or manslaughter after 24 April.

The purpose of a relative’s statement in court would be to explain how the death affected their family. Relatives could address the court in person or through a lawyer or other representative – a victim’s advocate. The role of the advocate would be to take them through the statement. The advocate could also provide advice and information about the case, the trial and decisions to be taken.

Manchester Crown Square is one of five crown courts that will pilot the scheme, tested for one year. The pilots will also run at the Old Bailey and in Birmingham, Cardiff and Winchester. Manchester Crown Square alone hears more than 50 murder and manslaughter cases a year.

Judge asks too many questions

A first instance judge is entitled to a wide degree of latitude in the way in which he conducted proceedings in his court.

In The London Borough of Southwark v Kofi-Adu [2006] CA (a housing possession case) the judge went beyond this by continually interrupting and asking questions; the Court of Appeal ordered a retrial.

Although first instance judges rightly tend to be very much more proactive and interventionist than their predecessors, it remained the case that interventions by a judge carry the risk of depriving himself of the advantage of calm and dispassionate observation.

Important protection for purchase outside the UK

UK consumers have important protection is available to them when using a credit card following yesterday’s ruling by the Court of Appeal that section 75 of the Consumer Credit Act 1974 applies to overseas as well as domestic transactions.
Yesterday’s judgment confirms that credit card issuers are individually as well as jointly liable with suppliers if the consumer has a valid claim for misrepresentation or breach of contract by the supplier where the price of the purchase is above £100 but no more than £30,000.
Cardholders are, therefore, able to make a claim against the credit card issuer as well as or instead of the supplier.

Section 75 covers foreign transactions including where:

* a consumer uses a UK credit card to buy goods while abroad
* a consumer orders goods from a foreign supplier while abroad for delivery into the UK
* a consumer in the UK buys goods which are delivered to a UK address from overseas by telephone, mail order or over the internet
* there is face-to-face pre-contract dealings with a foreign supplier temporarily in the UK, or with a UK agent of a foreign supplier, but the contract is not completed in the UK.
* if you pay by credit card you can claim your money back from the card company if the seller fails to honour the contract, or the item is faulty or if the seller wrongly describes it or if the supplier goes out of business
* you do not have to attempt to claim your money back from the seller first – the credit card company is individually liable
* if you are buying an item costing over £100 and you are asked for a deposit, consider paying the deposit by credit card
* you are not covered by section 75 if you use a debit or charge card.

Wigs in the news again

Lord Phillips the Lord Chief Justice says he wants to do away with wigs for judges and barristers in civil cases. The chairman of the Bar Council made a similar comment in an editorial in the Bar Magazine.

Solicitor advocates have complained that they appear “inferior advocates” because they are not permitted to wear wigs but solicitor QCs are allowed to wear them.

In May 2003 the Department for Constitutional Affairs held an enquiry which cost £100,000 into the wearing of wigs in courts.

As Lord Donaldson put it, “There is no urgent need to go discarding something which has been out of date for at least a century”.

Shabina Begum; the final chapter.

On the first day of a new academic year Ms Begum wore a long shapeless black, coat-like garment known as a jilbab because it concealed the contours of the female body which she thought was required by her religion. However, it was against the school uniform rules and she knew it. The general consensus of opinion among the vast majority of Muslim scholars is that a jilbab is not necessary for the reasons she claimed.

The House of Lords gave the case short shrift and gave Shabina Begum’s argument a real mauling. There is now precious little chance that Strasbourg will hear this story. Their Lordships felt that the school had not acted in a way that is incompatible with a Convention right. In any event Strasbourg jurisprudence permits the restricting of religious dress. The House of Lords speeches are full of phrases condemning Ms Begum words such as “…[her] unwillingness … her failure…” “The school had not excluded her, as she thought.”

She was escorted to school by her brothers who sought a confrontation. They claimed that she had a right to attend the school in the clothes she chose to wear; their insistence verged on the threatening. They supported their insistence by speaking of “human rights” and “legal proceedings”.
The deputy head told Shabina to go home, change into the proper school uniform and return to school properly dressed. The three went away, with the young men saying that “they” were not prepared to compromise over the issue (emphasis added). Their Lordships thought this a manner very unlikely to have been chosen by Shabina, who was not yet 14 years old.

She did not seriously try to find another school because she and her family were intent upon enforcing her “rights”. There was nothing to stop her from going to a school where her religion did not require a jilbab or where she was allowed to wear one. She did not seek the help of the school and the local education authority in solving the problem.

The school uniform rules were there to avoid clothes which were perceived as extremist Muslim and so protect girls against external pressures. The school was in the best position to weigh and consider these matters.

The school’s action could not be condemned as disproportionate. A head teacher cannot be required to undertake legal formalism, even with the help of solicitors. It would be irresponsible of any court, lacking the experience, background and detailed knowledge of the head teacher, staff and governors, to overrule their judgment on a matter as sensitive as this.

There is a line of coherent and remarkably consistent body of authority which shows that interference in the right to manifest religion is not easily established. For example: A soldier who joined the army then said he could not work on a Sunday. A teacher who having been employed told his employer he needed time of for religious observance during the lesson times. They both lost.

This case appears to be closed.

R (Shabina Begum)) v Governors of Denbigh High School ([2005] EWCA Civ 199; [2005] 2 All ER 396)

Today the House of Lords will give its decision on an appeal by Shabina Begum against her school’s refusal to let her wear a jilbab, which covers the whole body except for hands and face. We are sure that somehow lecturers will use this case as part of the AS/A level syllabus, but how, we are not quite sure.

Judge attacked by serious criminal

During the course of the summing up, an incident almost unique in trials in England and Wales occurred; the appellant escaped from the dock and physically attacked the judge.

For this, he was found to be in contempt of court and sentenced to 18 months imprisonment by a different judge. The Court of Appeal (on 10 March 2006) observed that this was a merciful sentence. Those who attack a judge, jury or other officer of the court in the course of their duties, particularly in the court room, can expect very long sentences measured in years.    
   
The judge managed to defend himself and keep his attacker at arms length, he suffered shock but was uninjured, his sash was torn off.

The defendant Sebastian Lee Russell from Leicester was on trial for staging his own shooting in an attempt to escape justice for the attempted murder of police officer. He was eventually sentenced to 25 years jail. At Leicester Crown Court of the attempted murder of PC Gary Hunt and of conspiring to pervert the course of justice. He received 20 years for attempted murder, 13 years for use of a firearm with intent to resist arrest and two years for handling stolen goods – all to run concurrently.
He also received four years for conspiring to pervert the course of justice, to run consecutively.

Full case report here