Tuesday 03 July 2012 by Catherine Baksi

The High Court has condemned the current system of means testing in magistrates' court and called on the Ministry of Justice to take urgent action to cut 'unacceptable' delays.

In a strongly worded judgment in relation to two European Arrest Warrant (EAW) cases, the president of the Queen's Bench Division Sir John Thomas said means testing is compatible with EU rules, but: 'The present system… produces unacceptable delays that are unjust.'

He said the system is in effect 'unworkable' in practice within the time limits set out in the Extradition Act 2003 and Framework Directive for the resolution of cases, and is 'inconsistent with overarching principles of fairness and justice in timely decision-making in extradition cases'.

Thomas said: 'It is clear that urgent action must now be taken by the Ministry of Justice to eliminate delays and put in place a legal aid system for EAWs which ensures that requested persons have speedy access to legal representation.

'If steps are not urgently taken by the ministry, then no doubt there will be further appeals or applications for judicial review to this court and the United Kingdom will remain in breach of its treaty obligations,' he said.

The court was considering appeals in two cases where an EAW had been issued and those detained had applied for legal aid. In one case there was an 11-week delay before legal aid was granted. The appellant in the second case failed after two months to sort out legal aid and so appeared unrepresented in the magistrates' court.

Article 17 of the EU Framework Directive, which governs EAW procedure, requires warrants to be dealt with and executed as a matter of urgency. Article 11 provides that requested persons have 'a right to be assisted by a legal counsel'.

Thomas said that it followed that a person arrested 'must be afforded legal representation' in sufficient time to enable the court to deal with the case in accordance with the law, which meant within 60 days after arrest. The current system 'has the effect of putting the courts, as the executing judicial authority and the branch of the state responsible for discharging the obligations under article 17, in breach of those obligations,' he said.

It said it was 'inexplicable' that the 'unnecessarily complex and non user-friendly' legal aid forms could not be filled in and submitted online using electronic signatures.

The court cited the comments made by District Judge Evans who dealt with one of the extradition cases, in relation to 11-week delay in sorting out legal aid. He said it is 'deeply depressing that any requested person, particularly one remanded in custody, is not able to have the immediate benefit of legal aid'.

He added: 'Anyone looking at the issue holistically would immediately see that to grant legal aid in all extradition cases at the first hearing would save tens of thousands of pounds over a year.'

The court dismissed both appeals and upheld the decisions to order the extradition of both appellants.

A Ministry of Justice spokeswoman said the MoJ and Legal Services Commission are considering the judgment.

Law Society legal aid manager Richard Miller said: 'We have long been very concerned about delays in the means-testing system. While EAW cases give rise to their own specific problems, the comments of District Judge Evans about the knock-on costs apply equally in domestic cases.'

The full judgment can be read here.