Costs in Criminal Cases (Legal Costs) (Exceptions) Regulations 2013

Lord Carlile of Berriew Excerpts

Monday 20th January 2014 Lords Chamber

[Lord Pannick (CB)]

My Lords, I add my welcome to the noble Lord, Lord Faulks, to the government team. He brings to this role expert legal knowledge, very considerable practical experience, excellent judgment and a concern to promote the values of the legal system, qualities that have not noticeably been displayed over the past three and half years by those responsible for making decisions in the Ministry of Justice. I hope that the Secretary of State will listen to the noble Lord’s advice and take advantage of the expert legal advice and assistance that he will be providing—indeed will be providing, as I understand it, in the best traditions of the Bar, on a pro bono basis.

I am very grateful to the noble Lord, Lord Bach, for promoting this debate. I share his concerns about the exclusion of borderline cases from the scope of legal aid. The concern I have is that many of the leading cases in which the law has been developed in the public interest over the past few years have involved claims which, because of the disputed legal principles, could not have been said to have a 50% chance of success. The noble Lord, Lord Bach, mentioned examples of such legal aid cases, including one in which I acted for the claimants. That was the case of Debbie Purdy, which was the subject of the last judgment of the Appellate Committee of your Lordships’ House before the creation of the Supreme Court in 2009. This was a case in which judgments were delivered by two noble and learned Lords in their places today: the noble and learned Lords, Lord Brown of Eaton-under-Heywood and Lord Hope of Craighead,

The Appellate Committee held that that the DPP had a duty to publish guidelines about the circumstances in which he would prosecute for assisting a suicide. Those guidelines have made a valuable contribution to justice in a difficult area of the law. It could not have sensibly been said that the claim brought by Debbie Purdy was other than borderline. Legal aid was accordingly granted under the law at the time. When these regulations are implemented, as I think they now are, legal aid will simply be unavailable for such a case.

For legal aid to be able to fund such cases serves the public interest. The Minister told the House today that the removal of borderline cases from the scope of legal aid will save £1 million a year. Such a modest saving cannot begin to justify the damage that this change will do to the ability to develop the common law. The Minister’s other point was that taxpayers’ money should not be spent on cases that a private-paying citizen of reasonable means would not wish to pursue. The defect in that reasoning is that a private-paying citizen may well wish to pursue a case that has only a 30% or 40% chance of success if it raises an issue of enormous importance to them.

There is a further point in answer to this defence of this change. It is a point that was made by Richard Drabble QC in his excellent response to the consultation on this issue. He pointed out that when the Government respond to judicial reviews in cases such as that of Debbie Purdy they do not simply ask themselves whether they have a 50% chance of success and, if not, decline to be represented in the court proceedings; the Government very properly take account of the importance and complexity of the case and often fund a defence even though their legal advisers cannot say that there is a 50% chance of success. These are not the cases mentioned by the noble Lord, Lord Faulks, where further investigation may provide an answer; they are cases where it is inherent in the nature of the case that they are borderline and you cannot say that there is a 50% chance of success.

Why should the legal aid scheme adopt a different and narrower approach to legal aid for claimants than the Government adopt for themselves in deciding when and how to resist judicial review claims? The Government’s reasoning leaves entirely out of account the nature of the cases that will now be excluded from legal aid and the public interest in ensuring that the law is determined and applied only after proper legal argument on both sides. For these reasons, I very much regret these amendment regulations and I hope that the Minister, if he is unable to say so today, will be able to advise the Secretary of State that further thought needs to be given to this important matter.

[Lord Carlile of Berriew (LD)]

My Lords, I join the noble Lords, Lord Bach and Lord Pannick, on two grounds. The first is the generous but completely justified welcome that has been given to the arrival of my noble friend Lord Faulks on the government Front Bench. Indeed, I am encouraged that he has a record of questioning the reduction of legal aid, particularly in criminal cases. I urge him to do another piece of pro bono work, a tutorial for his ministerial colleague in another place, Mr Shailesh Vara, on understanding simple statistics and understanding something about legal aid.

The second ground on which I agree entirely with those who have already spoken is in my support of the regret Motion introduced very clearly by the noble Lord, Lord Bach, and illustrated with customary cogency by the noble Lord, Lord Pannick. However, I want to turn to the criminal regulation. I do not support a criminal regulation that means that somebody who has perfectly reasonably obtained the advice of a good solicitor and senior counsel can only, without exception, recover costs at legal aid rates if he wins the case. It may be best if I give a real illustration.

A retired butcher of about 70 years old was charged with some very serious sexual offences, including rape, against a young girl of about 12 years old who was the daughter or granddaughter of a neighbour. He instructed a good solicitor. The good solicitor said to him that he could instruct counsel on legal aid but his preference would be to instruct more senior counsel, leading counsel, but that would not be covered by legal aid. Not surprisingly, the 70 year-old retired butcher asked for advice as to his prospects if he took either part of the respective advice. He was advised by the solicitor, perfectly reasonably, that his best prospects were to have the more experienced counsel from the very beginning, so leading counsel was instructed.

As it turned out, in the event, there were a number of complex legal points and some factual issues. After the matter was dealt with with a good deal of care by the solicitor and leading counsel, the case went to the Crown Court where it was dropped at the courtroom door. One of the reasons why it was dropped was that it transpired that he could not have committed one of the most important offences alleged against him because he was out of the country at the time, an issue which involved very complicated inquiry, including issues of the admissibility of evidence obtained from abroad. Thus, he avoided a trial and a potential sentence of upward of 10 years’ imprisonment and he was able to return to his family and home. He had paid for the advice by borrowing money from his grown-up children and by mortgaging his home.

Before your Lordships think about six-figure sums for the fees involved, they were nothing like so high. It was well understood by the solicitor, who drove a hard bargain, and by counsel, who knew perfectly well that their fees were subject to assessment if they were too high, that reasonable fees would have to be charged, and they were. Total costs in the case amounted to a middling five-figure sum. He applied for his costs before the Crown Court judge, before whom the case was dropped—accepting an acquittal, by the way—and the judge thought it entirely reasonable that he had obtained the advice of leading counsel and a good solicitor and he was awarded his costs out of central funds. What is unreasonable or unjust about that? He acted on legal advice, what he did was perfectly reasonable, a good result was obtained and the costs of a trial were avoided, which would probably have been higher than what was paid out of central funds to the solicitor and leading counsel.

What is proposed in criminal cases now is that someone in that position will be able to recover at best only a half, probably a third, of those costs. The retired butcher, therefore, having been acquitted in a prosecution brought unjustly, would have been some tens of thousands out of pocket. Do we really want to countenance a criminal justice system like that? I do not.

[Baroness Lister of Burtersett (Lab)]

My Lords, as a member of the Joint Committee on Human Rights and, I suspect, the only non-lawyer to take part in this debate, I thank my noble friend for moving the Motion of Regret. I shall make a couple of points based on the JCHR’s report—with which the Minister, as a former colleague on that committee, will of course be very familiar,. The Government’s gain is the JCHR’s loss. I shall spare him any further blushes. As has already been said, the Government estimate that about £1 million will be saved as a result of these changes. Such a small, or as the Minister called it, modest sum in public expenditure terms comes well within the margin of error, and indeed the JCHR questions the accuracy of this estimate. My noble friend suggests that there could be no saving at all.

Whatever the savings actually are, clearly they are very modest and we have to ask whether it is proportionate to put at risk the rights of access to the courts where human rights issues may well be at stake, as underlined by the Bar Council in its evidence to the JCHR. It said that of all the legal aid measures,

“this one is … likely to have the most immediate and adverse effect on human rights”.

It gave as examples the prospect of loss of one’s home or of one’s children being taken into the care system. These are very fundamental issues for ordinary citizens. ILPA has also raised its concerns to your Lordships, particularly with regard to asylum and immigration cases. It raised particular concerns about separated refugee children, and I would welcome an assurance from the Minister that that group will be protected.