Examination of Witness (Questions 20-31)
22 JUNE 2004
ROGER SMITH
Q20 Mr Soley: Do I understand from what
you are saying, too, that one of the things that would reduce
a human rights breach would be an appeal mechanism to the court?
Mr Smith: I think that this is
a civil right and obligation and that, therefore, you are entitled
to a fair and impartial determination of it. I think there is
no problem about delegating the initial determination but, ultimately,
it would certainly—to put it at its lowest—be safest
for the Government—
Q21 Mr Soley: That would reduce the risk?
Mr Smith: Yes. It does not have
to be a court, it could be a tribunal.
Q22 Mr Soley: Finally, of these three
options which do you think are most likely to result in a defendant
who cannot afford to pay for legal representation being denied
legal aid?
Mr Smith: One.
Q23 Mr Soley: You are suggesting that
people who need legal aid are being denied it. I am asking you
which of the three options are most likely to—
Mr Smith: Number one.
Q24 Ross Cranston: Just in fairness,
in terms of conflicts, where solicitors are doing this, it may
be that they would take a more generous view of the interests
of justice test than someone outside might take.
Mr Smith: Indeed, and I would
hope that they would. You cannot play fast and loose with the
market, it seems to me. If one prides oneself in delivering services
using the market, and we are doing that in terms of contracts
and all the rest of it, you have to recognise that people will
operate in their economic self-interest, and that is what you
are acknowledging. The implicit assumption I make from this paper
is that the drafter hopes that all the problems that solicitors
will encounter they will deal with by just lumping the fact that
they will get paid less because they cannot provide the necessary
audit trail. Way down at the back, in the partial regulatory impact
assessment, I see, there is an acknowledgement that smaller practitioners
might be harmed by this and might have to go out of business.
If you want to make a cut of, depending on the various estimates,
£60 million out of what solicitors get, that is a perfectly
reasonable policy objective, but I do think it is reasonable to
ask for it to be transparently done and not, certainly, to be
done in a way which potentially not only takes £60 million,
or whatever it is, off solicitors but also potentially will impede
the rights of defendants, which is much more important.
Q25 Ross Cranston: It is a question of
priorities, of course, and you have come before us before in terms
of advice deserts and so on. There are other areas of legal need.
Generally, I am impressed with your analysis. The paper is not
especially impressive in terms of the proposals but there are
questions of priority.
Mr Smith: If you were to say,
as you might have done in your other inquiry, "There is £2
billion. How do we spend it?", and there is a problem that
the demands of crime are encroaching on civil, I would say "Yes",
and if you went on to say there should be measures by which we
reduce the impact of crime on civil, yes, but we are here before
you on these proposals. Frankly, I am under-whelmed by them.
Q26 Ross Cranston: Can I ask you specifically
about the cost to solicitors? I am not sure whether you answered
this earlier, but do you think they should be paid extra to administer
the test?
Mr Smith: I think that there is
a logic to that. Those who represent solicitors will make that
case before you better than I. As a matter of policy, as long
as it is transparent, it seems to me, the Government can take
a view about what lawyers should be paid. So you can pay them
less. That is a perfectly reasonable policy decision which we
can then debate in terms of its impact. This will operate in a
skewed way, which made me feel terribly old and crabby, because
I just did not think it was good enough.
Q27 Ross Cranston: Let us say you are
animated and not crabby. If they have to make a contribution—I
think you are suggesting that they make a periodic contribution—what
is the problem with an upfront contribution?
Mr Smith: There is no problem
with an upfront contribution provided the person who is required
to pay it can afford to do so and it is reasonable to require
them to do so. If they have got capital and the rules are reasonable
in relation to the calculation of capital—and I gave the
example of Mr Soley having £5,010 and if the limit is £5,000
I do not see why he should not give us £10; if he has £6,000
I do not see why he should not give us £1,000. The old scheme
allowed for periodical payment to the magistrates, and this was
an unfortunate administrative inconvenience; you had people coming
in with small amounts of money every week. However, if you have
a system which depends on income and capital calculation, then
some people will fail on income because they are just over the
income level. What you cannot do (except if you are trying to
make some sleight of hand to convince the Treasury you are doing
something seriously), if you are trying to do something properly
about it, is convert an income payment into a capital payment.
So what do you do? If the disposable income limit is £91
under one option and you have got income of £101 per week,
which is going to be quite likely, because this is just above
Job Seeker's Allowance levels so you are dealing with significant
numbers of people just over the limit, what are you going to do
if they are to pay £2,000? The only way you can deal with
it is by deferring the initial one-off payment, although the example
in the paper where it says deferral might be allowed only relates
to capital and not income, as if the drafter did not envisage
income being deferred in that way. Others behind me who will give
evidence later will talk better about what the position was before,
but quite understandably defendants are more likely to pay up
before their case has been determined than afterwards, which is
also why the drafter wants payments up front. It is an absurd
situation where somebody might take four years to pay an income
contribution for a case which might be over in nine months, now
that the courts have speeded up.
Q28 Ross Cranston: Currently there are
difficulties, are there not, with periodic payments?
Mr Smith: Yes, and that is no
doubt why the drafter thinks it is a bit unfair to have solicitors
dealing with people popping up with £5 notes every week,
but you cannot cut corners beyond a certain point. This is really
just shoddy policy making.
Q29 Ross Cranston: You comment that in
the crown court cases they should be subject to a retrospective
order as to costs.
Mr Smith: Yes.
Q30 Ross Cranston: Why the difference
between crown court and magistrates?
Mr Smith: I prefer retrospective
orders in costs, in general, I think. The problem with the crown
court is the potential costs are so enormous that if you have
got payment up front and are then paying it back you have got
money circulating around, and quite large amounts.
Q31 Ross Cranston: So it is simply the
size of the sum?
Mr Smith: I think that is right.
Chairman: I think we have probably covered
all the points we wanted to cover with you, in addition to the
very helpful submission you gave us. Thank you for bringing what
some might think of as a dull subject to life in such a helpful
way. While we change the witnesses on the witness desk can I give
Mr Clappison the opportunity to declare an interest?
Mr Clappison: Yes, as a member of the
Bar, non-practising.
Chairman: Thank you very much indeed.
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