Legal Aid

Lawyers in means-test warning

PUBLISHED September 22, 2006

Criminal law solicitors this week hit out at ?nonsensical? means-testing provisions that they claim are designed to prevent them from being able to claim an ?early cover? payment for defence work.

Under the new rules, solicitors will have to submit a means-testing form 48 hours after a client has been charged to receive the ?75 fee ? a task that lawyers claim will be ?impossible?. The fee covers representation at a client?s first magistrates? court hearing, where their legal aid claim has not yet been processed.

Criminal Law Solicitors Association chairman Ian Kelcey said solicitors will have to advise clients to seek representation in the police station if they want to be sure of receiving legal aid, which would significantly increase costs.

Mr Kelcey said: ?The rules require solicitors to submit their application within 48 hours of charge. There is no possible way you can do that if you have not been at the police station. Even then, you may well need the signature of the client?s partner, and you will also not be able to complete the form if the client does not know his national insurance number.?

He added: ?This is a nonsensical hurdle created for no good reason, to ensure that we never qualify for the early payment. We urge the Legal Services Commission to change this immediately, otherwise defendants appearing for the first time in the magistrates? court will be unrepresented. Every case is going to be adjourned.?

Legal Aid Practitioners Group director Richard Miller added: ?A properly completed form depends on the client. Providing police station representation is the only way that solicitors can get forms completed in time, which will be counterproductive for the commission.?

The Law Society?s chief executive for representation Desmond Hudson said Chancery Lane supported the principle that convicted defendants who can afford to pay for their own defence should do so. But he added it was ?ridiculous? to expect defendants ?to complete a long and complex form without help?, and it is ?completely impracticable? to expect this to be done within 48 hours.

LSC Criminal Defence Service director Derek Hill said early cover will be granted where complete applications are submitted within two working days of charge, or five working days for defendants remanded in custody, and there is a delay in the legal aid decision.

He added that beyond this period, a representation order can still be granted, but not early cover. Mr Hill said pre-order cover ? which allows solicitors to claim for up to one hour's preparatory work where the defendant fails the interests of justice test ? and the court duty solicitor scheme provide further safeguards.

Means testing comes into force on 2 October.