In a strongly worded judgment the High Ct condemned the current system of means testing in the magistrates’ court. Whilst the case was concerned with extradition proceedings (and is essential reading for lawyers in this area) it has broader application across the board and will require all courts to re-think their current attitude of always seeking to progress cases in the absence of a grant of legal aid.
“It is clear from what we have already said that delays occasioned by means testing which are not occasioned by the fault of the requested person or his legal advisers, cannot be held against the requested person. Indeed, as we have said, it would be unjust in cases where the initial advice of a duty solicitor (under a properly funded scheme) is insufficient, to proceed either (a) to obtain the consent of the requested person to extradition or (b) with the extradition hearing itself, unless and until the means testing procedure is completed and adequate time to advise and obtain evidence has been afforded.The effect of the Ministry of Justice’s current system is in practice to stop the clock as regards the position of the requested person in such cases. Until means testing is complete, it is unreasonable to expect the legal adviser to advise. That may put the court as the executing authority and as the branch of the state responsible for the performance of the obligations under the Framework Decision in breach of those obligations, but that breach is not the fault of the judicial branch of the state, but of the Executive Branch. It is wrong, in principle, to visit that fault on the requested person.
We appreciate that until the Ministry of Justice reforms its system for legal aid, this may cause significant delays and increase the work of the Westminster Magistrates’ Court. However, the proper and fair administration of justice leaves the judiciary with no alternative until the present legal aid system is reformed.”
This comment from a District Judge was particularly depressing:
“District Judge Evans drew attention to the risk of creating “an industry for lawyers to make money out of routine cases by allowing inappropriate adjournments so as to accommodate defence requests to seek evidence”. Counsel in the appeal and the LSC all denied that there was any such industry. A court must, however, be astute to such a risk. It can guard against it by a suitably rigorous examination of requests for adjournments as we have set out.”
“We therefore cannot accept the evidence of Mr Gascoigne that there is no systemic failing in the design or structure of the system for means testing. For example,
i) It is difficult to see how the target of 6 working days for the consideration of the legal aid application (see paragraph 4.ii) above) is compatible with the 60-day period in Article 17 or fair in the case of a person remanded in custody.
ii) The policy of presuming that a person remanded under an EAW will continue to receive his pay (as referred to in paragraph 4.iii) above) is irrational in extradition cases where the requested person is in custody. It has the consequence that the only option left to the requested person, or his advisors, is to trigger the “Hardship Review” procedure. This requires a fresh application and evidence. The requested person is, in effect, back at square one.
iii) As time is of the essence, it is inexplicable that Forms CDS14 and CDS15 (a) cannot be filled in and submitted on line but are merely electronically downloadable, (b) require physical signatures rather than electronic signatures and (c) are unnecessarily complex and non user-friendly.
iv) The system appears to take no account of the obligations imposed on the judiciary under Article 17 of the Framework Decision and the overriding requirement that the UK’s system is compatible with its international obligations undertaken under Articles 11.2 and 17.”