Previous Section Back to Table of Contents Lords Hansard Home Page



After Clause 21, insert the following new clause:

12 Jun 1995 : Column 1616

("Availability of legal aid

. The Secretary of State shall make regulations to amend the Legal Advice and Assistance Regulations 1989 made under the Legal Aid Act 1988 to ensure that in appropriate cases persons who have been convicted of offences have advice and assistance from solicitors to assist them with any necessary communications with or representations to the Criminal Cases Review Commission.").

The noble Baroness said: The purpose of the new clause proposed in Amendment No. 45 is to ensure that legal aid can be made available in an appropriate case—and I stress that that is to be determined by the Legal Aid Board—to provide legal assistance where it is necessary to a prisoner before he or she applies to the commission and, where necessary, to prepare the submission for consideration by the commission and, where necessary, to assist the prisoner with any subsequent negotiations or correspondence with the commission.

At the Second Reading of the Bill a number of noble Lords, notably my noble friend Lord Mishcon, expressed doubts as to the adequacy of the present legal aid provisions in relation to the new commission. In her reply, the Minister said:


    "Legal aid through the green form scheme will continue to be available to those wishing to make representations to the commission—whether initially to the commission or at a later stage in the light of the results of any investigations by the commission—but no additional provision is needed, because once the commission looks into a case it will of course be doing any necessary investigations".—[Official Report, 15/5/95; col. 329.]

I hope to persuade the Committee and the noble Baroness that the provisions of the green form scheme simply do not begin to meet the needs that are likely to arise. Perhaps I may indicate initially, as I am sure the noble Baroness will accept, that it is likely that the majority of people wishing to place applications before the commission are serving sentences of imprisonment. It follows that many of those will be if not illiterate at least not trained lawyers and certainly not skilled in the ways of preparing documents for consideration by legal and other minds.

At present a prisoner in such a position has four possible sources of outside help open to him. He can try to attract the attention of an author or journalist to take up his case, but necessarily those sources are limited. He can try to persuade the solicitor who acted for him, or some other solicitor, to take up his case and act for him. That may be extremely time-consuming. I understand that the solicitor who was involved in the Birmingham Six case estimates that she did approximately one month's work every year for 10 years before the outcome of that appeal. He can try to interest an organisation such as Justice to take up his cause, but a vast number of applications and limited resources mean that only a certain number of those can be adopted.

Alternatively, he can rely on his friends and family to do what they can by contacting Members of Parliament, pressure groups and so on. His last resort is to write. As many Members of this House and another place know, large numbers of letters come from people in custody anxious that their cases should be reviewed.

As I understand it, the green form scheme is available in connection with this commission and would continue to be available following the establishment of the commission. However, there are problems connected

12 Jun 1995 : Column 1617

with its use which I ask the noble Baroness to consider. It seems to us on these Benches that the green form scheme simply cannot fit the bill.

First, a solicitor can carry out only two hours' work under the scheme. If he wishes to undertake more than that, he has to go to the Legal Aid Board to ask for grant of an extension. But that has to be done in advance of the work to be done. An extension can be granted only after the green form has been signed by the applicant. That cannot be done through the post; it has to be signed in the presence of a solicitor. Therefore the solicitor must travel to see the prisoner in order to have the form signed. Usually—certainly in my experience as counsel going to interview prisoners, in particular those serving long sentences—the journey time alone to the prison is likely to use up the two hours paid for under the green form scheme.

Unless the solicitor has read the papers before he sees the prisoner, he is in no position to give properly informed advice about the merits of the case. Yet under the green form scheme this can be paid for only up to the two hours' limit and only after completion and signing of the form. In other words, there is a hopeless and inadequate Catch-22 situation. A solicitor needs, first, to be able to give proper advice to the applicant as to whether he has any valid grounds; secondly, if the applicant has such grounds, the solicitor needs to be able to take steps to ensure that the commission has all the relevant papers; and, thirdly, he needs to be able to assist in, perhaps even to draft a precis of, the case which will direct the attention of the staff of the commission to the real point in the case. Unless he is able to do that, it seems to us that cases in which there is a valid point will be missed and a number of cases which ought to have been sifted out by short, proper advice at the outset will burden the commission—unmeritorious cases which a solicitor, acting properly having read the papers, could have advised had no chance.

The staff of the commission will face a difficult, if not impossible, task in sifting the wheat from the chaff. Unlike the solicitor who was previously involved in the case, the staff will come fresh to the case. Without some help in a complex case, they cannot reasonably be expected to go straight to the point made by the complainant.

In many of these cases a number of steps will have to be taken before any meaningful application can be made. For example, if the Government maintain the position expressed last week in Committee that only applications involving fresh evidence or fresh argument are to be entertained, it may be necessary to seek the recollection of counsel and solicitor about what went on at earlier hearings. It may be necessary to obtain transcripts of parts of those earlier hearings. It may be necessary to interview potential witnesses. It is only necessary to say that to see how undesirable it is for witnesses to be interviewed perhaps by friends or associates of someone serving a lengthy prison sentence rather than a solicitor.

All those matters need to be covered properly by legal aid. Extensions of the green form scheme are granted, as I understand it, but area officers vary in their practice. In other words, there is no uniformity. However, the real disadvantage of extensions to the green form scheme are

12 Jun 1995 : Column 1618

these. In any case each extension has to be for a specified number of hours and for a specific purpose. That may involve repeated applications for extensions which result, as one knows when seeking a quick extension of legal aid to gain an additional expert's report, in those applications being bogged down in a quagmire of bureaucratic delay which may be entirely understandable.

The green form scheme was designed in essence to allow preliminary work to be done before a full legal aid certificate was granted in appropriate cases or, indeed, to knock on the head those cases which had no chance of success by giving appropriate advice at the outset. Full legal aid will be available, I understand, once the case has been referred by the commission to the Court of Appeal. But it is that initial submission of evidence and arguments to the commission which is likely to be crucial in the decision as to whether a reference is later made. If proper legal assistance is not available in appropriate cases—and I stress that factor; it is a matter for the Legal Aid Board to consider—to provide help where it is needed in those cases, it seems to us that miscarriages of justice could well remain uncorrected because the essential point has not been pin-pointed and may be missed by the commission. For all those reasons, I beg to move.

Baroness Blatch: I am aware of concerns which have been expressed during the passage of the Bill that people who wish to make representations to the commission should be able to obtain legal aid so that they may be advised on their application. The effect of this new clause would be to require the Secretary of State to amend the Legal Advice and Assistance Regulations 1989 which are made under the Legal Aid Act 1988 to ensure that advice and assistance under the green form scheme would be available to applicants wishing to communicate with or to make representations to the commission.

We believe that the proposed new clause is unnecessary. Legal advice and assistance through the green form scheme are available to those who are financially eligible on any matter of English law, with the exception, of course, of certain matters which are specifically excluded from the scheme by regulation. No one is proposing that the relevant regulations should be amended to exclude advice and assistance on making representations to the commission. Therefore green form advice and assistance will be available to people wishing to make such representations provided they satisfy the financial eligibility conditions of the scheme.

Once an application has been made to the commission, it will be for the commission to pursue any inquiries, as I said at Second Reading. The commission will be investigative rather than adversarial. It will not be necessary therefore for applicants to be legally represented while the investigation is in progress.

As the Committee knows, the Bill will allow the commission to disclose the results of its inquiries to applicants so that in the interests of fairness they can make further representations in the light of matters that the commission has found. Again legal advice and assistance through the green form scheme would be available to those eligible to assist them in preparing any further representations that they may wish to make. Legal

12 Jun 1995 : Column 1619

assistance will similarly be available to those wishing to make new representations to the commission, even where the commission has previously refused to refer their case.

Where a case has been referred to the courts, the appellant may apply for legal aid for the appeal in the usual way.

The noble Baroness, Lady Mallalieu, referred to legal aid being needed for investigations. I have some doubt about the idea of legal aid being used for extensive investigations, given that this work would overlap with the work for which the commission is set up and resourced to carry out. However, perhaps I may refer to the problems to which the noble Baroness referred. With regard to the two hours' limit on the green form scheme, our belief is that the scheme works effectively in relation to prisoners and other applicants. However, I am willing to look carefully into the difficulties that she outlined in moving her amendment. Perhaps she will allow me to do so without prejudice to the outcome. Perhaps I may consider the matter between now and the next stage of the Bill. Alternatively, no doubt the noble Baroness will present the House with another amendment.


Next Section Back to Table of Contents Lords Hansard Home Page