Labour is to reintroduce a test to stop the wealthy getting legal aid. So why was it scrapped in the first place?

NOTHING has done more to discredit legal aid than reports of millions of pounds of public money apparently being squandered on the super-rich. There was outrage when Kevin Maxwell pocketed ?5.9 million of taxpayers? money in his fraud case and when ?4 million went to Jawad Hussein, the millionaire former adviser to Saddam Hussein, to contest an embezzlement action (after his six homes around the globe were discounted by the then Legal Aid Board).

Again, there was indignation last month when Michael Carroll, a ?9.7 million lottery winner, was granted legal aid to fight a legal action. Last Friday Carroll was convicted. The ?bling-loving lout?, as one tabloid put it, took part in a mini-riot at a Christian rock festival in 2004.

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The Criminal Defence Services Bill, now making its way through the Commons, will reintroduce a means test for criminal legal aid in the magistrates? court, abolished only a few years ago, and transfer the responsibility for deciding whether to grant legal aid for representation from the courts to the Legal Services Commission (LSC). The idea is that it would stop the likes of Carroll and El-Hadji Diouf, the Bolton Wanderers? Senegal striker, who last year claimed public funding to defend a charge of spitting at a Middlesbrough fan, from receiving public funds. ?Why did the ?40,000-a-week footballer get legal aid?? raged one paper. ?Spitting in the face of justice,? punned another.

?The Bill represents our firm view that those who can afford to pay for their criminal defence costs, not least wealthy Premiership footballers or lottery winners, should be asked to do so,? Bridget Prentice, the Constitutional Affairs Minister, said last month. ?By targeting resources on those who most need them, we will be able to deliver a sustainable legal aid system that will continue to serve the needs of this and future generations.? Whatever the Minister might say, the Bill would not stop Carroll availing himself of public funds as it proposes to introduce the means test only in the magistrates? court.

Richard Miller, director of the Legal Aid Practitioners Group, says that Carroll?s funding arrangements are ?a non-story?. In the Crown Court the judge can order a defendant, if found guilty, to repay all legal costs after an assessment by the LSC. ?If he was paying privately, and he was acquitted, the taxpayer would have to reimburse him his costs at a private rate, not legal aid rates,? Miller adds.

One reason why ministers are bringing back the means test is that they believe it could save the legal aid bill as much as ?35 million a year. Not everyone is convinced. Jonathan Djanogly, the Shadow Solicitor-General, describes the figure as ?a finger in the wind?. ?We remember the reason why the Government got rid of the means test in the first place ? it said that the cost of the administration outweighed the costs of savings,? he argues. While the Conservatives support a means test as a matter of principle, Djanogly does not see it making much of a contribution to legal aid. ?We have magistrates? courts workers going on strike, barristers in effect going on strike, criminal legal aid solicitors saying that they?ve never had it so bad,? he says. ?We could be looking at the death of the high street criminal practice. The Bill doesn?t even scratch the surface of that problem.?

When Labour pulled the plug on the test under the Access to Justice Act 1999, the administration of the scheme was widely considered to be more hassle than it was worth. ?It was an administrative nightmare and considerably slowed down the process,? Andrew Keogh, a partner at Tuckers, the criminal defence practice, says. Keogh believes that even the most straightforward case, a defendant on welfare benefits (dealt with by way of a pro forma letter being faxed from a benefits agency) could prove a chasing game whereas clients with earnings would have to produce wage slips, evidence of loans, travel and childcare commitments, which ?often brought the entire process to a halt?. While defendant solicitors were paid under the Green Form Scheme, Keogh notes that under the Bill the costs would fall squarely on practitioners. ?The Government thinks that we?ll just plough on regardless, taking another hit,? he says. ?Practitioners are always saying ?How much more can we take?? but we?re pretty close to the bone now.?

No lawyer is arguing for the right of millionaires to have access to public funds. Kevin Martin, the Law Society president, says that the means test is to be ?welcomed? if it ?ensures that those defendants who can afford to pay their legal costs do so, while those in need of help continue to have access to justice?. There is ?no objection in principle and no objection under the European Convention? to means test, says Roger Smith, director of Justice, the law reform group, but he points out that the previous means test was not scrapped just because it was not paying its way nor, he adds, had its abolition anything to do with pressure from the access-to-justice lobby. The final blow was the year-on-year refusal by the National Audit Office to sign off an audit certificate for the Lord Chancellor?s Department?s criminal legal aid budget because of fears that the test was not being applied properly in the magistrates? courts. The Public Accounts Committee in 1998 found that court officials were making errors in more than one in five cases (21 per cent).

Smith is sceptical that the policymakers can devise a system that does not replicate the overly ?rough and ready? approach of the old system without creating a regime so strict as to ?throw the courts into chaos?. The Law Society is concerned that the system has sufficient flexibility to ensure that those who fail the means test, but are genuinely unable to pay, are not left without representation. ?It is proposed that there is no route of appeal to the courts for those who fail the means test, but instead a right of review to the LSC regional director,? Martin says.

The society also makes the point that no research has been undertaken as to the cost of privately funded representation, which it argues is ?crucial? to the setting of the means test. How, Martin wants to know, can you work out if someone can afford access to justice, if you don?t have a clear idea of how much that costs in the first place?

The author is the new editor of Independent Lawyer, a magazine for legal aid lawyers

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