Examination of Witnesses (Questions 80-94)
22 JUNE 2004
RT HON
LORD JUSTICE
JUDGE AND
HON MR
JUSTICE RICHARDS
Q80 Chairman: Before I call on Mr Cranston,
I should say that we are likely to be called to vote at some point,
but you have been so helpful to us so far that if that happens,
as I expect it will do in about eight or nine minutes, I will
probably close the proceedings then rather than keep you waiting.
Lord Justice Judge: Alright.
Q81 Ross Cranston: I wanted to ask you
about these high costs cases, because the figure we have is that
one per cent of cases in the Crown Court take something like 49%
of the legal aid. In your helpful submission you mention a number
of aspects of that. I was especially taken by what you say in
paragraph 12 about the costs involving multiple defendants and
the additional supervision required there. It might be said by
the casual observer when he or she wanders into a Crown Court
and sees a multi-handed case with a whole range of lawyers, there
at public expense, getting up and perhaps asking one question
in relation to defendant number five, that there is unnecessary
expenditure. What do you mean by ensuring that multiple representation
does not involve unnecessary defence? Is that what you are trying
to address?
Lord Justice Judge: I will let
Stephen answer, but before he does, I would much rather the fifth
counsel got up and asked one question rather than ask 350. That
is one of our problems.
Mr Justice Richards: One obvious
example is, again, in the Court of Appeal, where if you have multiple
defendants appealing but it is a point of law the judge will direct
single representation rather than multiple representation. By
having the overview of the case, one can see that there is going
to be no conflict of interest between them in relation to the
matter to be canvassed on appeal and therefore one can limit the
representation order. I think that in the Crown Court there are
cases where it is possible even to have a single solicitor but
separate counsel in order to deal with minor potential conflicts;
and that is another case where the court has a better view of
the matter than would be the case if you had individual solicitors
being approached separately by the defendants in the case, each
solicitor being asked to represent that defendant.
Q82 Ross Cranston: Is that done now with
the court ordering that only one solicitor ought to represent
all the defendants?
Mr Justice Richards: I think in
an appropriate case it would be.
Lord Justice Judge: It is much
rarer now that it used to be. If a defendant tells his solicitor
there is a conflict of interest, there is much less of a tendency
to have the same solicitor. Having a single solicitor and three
different counsel was not uncommon. There has to be a real conflict
of interest. If one was saying, "It was the other chap",
then the solicitor cannot represent both of them. But if it is,
"Well, he was more in it than me", or if both are "not
guilty", for this purpose, "Neither of us was in it",
you can have the same solicitor. I think that is used less often
than it used to be.
Q83 Ross Cranston: One can certainly
see the argument for the necessity of separate representation
when there is a cut-throat defence, but often the defence is the
same in a multi-hander. Is there a need for separate representation?
Lord Justice Judge: No. If there
is no conflict, there is no need. If both defendants are saying,
"I was not there, I was at the Bull and Bush and not at the
Old Oak", and they are both saying the police have stitched
them up, there is absolutely no reason whatever why they should
have two separate solicitors and two separate counsel.
Q84 Ross Cranston: What about the other
comment that the casual observer might make, that although it
is a murder case, it is a pretty simple murder and you do not
need a Silk and a junior?
Lord Justice Judge: You very often
do not get a Silk these days. The prosecution very often does
not have a Silk in what you would call a straightforward murder.
I still think there is a public perception that murder is the
ultimate crime. You can debate that for quite a long time, and
no doubt all your constituents would have something to say on
the subject, but it does carry an automatic life sentence. If
at the end of a long, wonderful marriage one partner sees the
other declining in terrible pain and helps them on their way for
the last three weeks, that is murder and it is a life sentence,
unless some psychiatrist will come forward and say it is diminished
responsibility and everybody is very sympathetic. We have to remember:
murder conviction, life imprisonment.
Q85 Ross Cranston: So it is the penalty
rather than the complexity?
Lord Justice Judge: In that case.
It is the death too. It is the causing of death, intending death
or grievous bodily harm.
Mr Justice Richards: The question
whether more than one counsel should be allowed, whether a leading
counsel should be allowed, is one that is determined now in the
Crown Court by the Crown Court judge applying what are very restrictive
regulations. It is not clear from the Consultation Paper how that
sort of question would be dealt with under the new regime.
Q86 Chairman: Let us put to you that
question. Why is that? Are you comfortable with a four-page Bill
almost the entire significance of which will reside in regulations
we have not seen at this stage?
Lord Justice Judge: I am never
comfortable with that sort of legislation.
Mr Justice Richards: No.
Ross Cranston: I think I had actually
. . . I will certainly make the point as well that the Consultation
Paper does not explain how the nine million is going to be saved.
The argument there is very, very thin, the point about judicial
review, the increase in the possibility there.
Q87 Chairman: And on that, perhaps an
unfair question to throw at you in advance, but do you see a likelihood
of human rights cases arising out of the implementation of this
legislation.
Mr Justice Richards: For my part,
as an Administrative Court judge in one of my capacities, I see
judicial review applications at the moment in relation to refusals
of legal aid on the civil side by the Legal Services Commission.
There the criteria are different and the number of cases is relatively
small. If there were not an adequate role for the court in decision-making
in relation to criminal legal aid and refusals were to occur,
I do foresee a significant growth in judicial review applications
contending that there had been an unreasonable application of
the interests of justice test and that the result was that there
was a denial of the defendant's right under Article 6(3)(c), of
the European Convention on Human Rights, because that specifies
the circumstances in which criminal legal aid must be given, and
it is where a person cannot afford representation and it is in
the interests of justice that they get it. So there would be a
very obvious potential for cases to come to the court on the part
of people arguing that it would be in breach of their rights for
the criminal case to continue without their having funded representation;
and it is the kind of situation where the court would effectively
be performing the same role as if it were the original decision-maker
or a decision-maker on an appeal—it is a matter that it
could readily deal with. Thus it would not surprise me, I put
it no higher than that, if there were a growth in judicial review
applications and successful cases in that area.
Q88 Chairman: Just on a more technical
point, is it preferable for a defendant to be required to contribute
to the costs of his defence only after he has been convicted?
Lord Justice Judge: I do not know
the answer to that. Preferable? You want the money in. If the
system is that you should be paying something if you are above
whatever means level is set, I can see the force of that. If he
is convicted and you are sent down, you are never going to get
the money anyway: because we are all against imprisonment for
debt anyway, and this would be a debt and he is serving a sentence,
and so on and so forth, for all the sorts of reasons why you do
not make costs orders against defendants who are going to prison.
If he is acquitted, he is normally entitled to his costs back
anyway from public funds. It is a different public fund, but he
is entitled to them back. So, yes, if you want to guarantee getting
the money you should have it ahead, but there are great difficulties.
If the defendant says, "The children needed some new shoes
this week" . . .
Q89 Chairman: It is not automatic that
because somebody goes prison they cannot have a costs order made
against them.
Lord Justice Judge: No.
Q90 Chairman: Why are they so rarely
used in the Crown Court?
Lord Justice Judge: One is speaking
very generally, but many of the people in prison have no apparent
means and they are serving a sentence in prison. They have, therefore,
no means of earning anything and so their earning capacity has
gone. So what is there to enforce against?
Q91 Chairman: What about the Magistrates
Courts? If they had that power, given that they are not dealing
with long prison sentences, would it be a useful process for them
to use?
Lord Justice Judge: If you have
a means-testing system, and we have discussed that briefly, you
do have to be absolutely clear about how you are going to make
it work. If you are going to make it work by making sure that
money is produced in advance, then you have to have a system which
ensures that the defendant who is ordered to produce some money
in advance is able to do and does so, but I do think that once
the case is over it is very much harder to enforce these sorts
of orders. Look at the difficulties people have, some people have,
getting judgments enforced and paid up.
Mr Justice Richards: I do think
that the experience in the Crown Court is attributable to the
fact that so few of the defendants in the Crown Court have means
that would justify a contribution. I have made one Recovery of
Defence Costs Order when sitting as a judge in the Crown Court
in several years, and it is not from want of considering, in the
case of each defendant, whether such an order is justified. It
is simply that only in one case has there been evidence that warranted
such an order.
Q92 Chairman: Do you know whether they
got the money?
Mr Justice Richards: I think they
will have got the money, because it was in relation to a house
that was going to be sold and, therefore, there were means by
which the money could be attached and obtained.
Q93 Ross Cranston: I think it would be
useful to be kept in touch with the development of the Criminal
Procedure Rules, not only because of this reference but because
of our general interest in the court system.
Lord Justice Judge: If that is
your wish, certainly.
Q94 Ross Cranston: Certainly in terms
of what has been said, bearing down on costs is very valuable.
Lord Justice Judge: Certainly
if that is your wish, we will keep you posted.
Chairman: Thank you very much indeed.
Thank you for your considerable help this afternoon. I will now
close the proceedings.
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