Clause 2 - Rights to representation: financial eligibility
Criminal Defence Service Bill [Lords]
11:15 am
Jonathan Djanogly (Shadow Solicitor General (Also Shadow Minister for Trade and Industry), Law Officers (Assist the Home Affairs Team); Huntingdon, Conservative)
I beg to move amendment No. 5, in clause 2, page 3, line 24, leave out 'may' and insert 'shall'.
We think it important to have an overriding interests of justice test, as agreed by our noble Friends in the other place, to ensure that no one is excluded from legal aid when the interests of justice require that they receive it. The interests of justice test is a requirement of article 6 of the European convention on human rights, which states:
''Everyone charged with a criminal offence''
has the right,
''if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require''.
When a person does not satisfy the means test, it is difficult to see that the interests of justice would require him to receive legal aid, but it is easy to see that a rigid means test such as the one presupposed by the Government could deny legal aid when the interests of justice require that it be given. We should be interested to hear the Government's opinion on whether, in order to comply with article 6, it is necessary to amend the Bill to ensure that we deal with regulations not allowing for an override of the eligibility limits where the interests of justice require it, which may be defective and invalid. Any override must be provided for in the Bill and not merely possible through an interpretation of the Act that the Bill will become.
As the noble Lord Goodhart stated:
''Circumstances will vary widely and there is a real possibility that people who on the face of it have quite substantial incomes but who also have considerable outgoings, not all of which are recognised by the regulations, would in practice be unable to obtain legal aid when they could not afford to pay for representation out of their own income.''—[Official Report, House of Lords 28 June 2005; Vol. 673, c. GC14.]
On that basis, the relevant provision in clause 2 should therefore state that regulations ''shall'' and not ''may''
''prescribe circumstances in which the grant of a right to representation shall be taken to be in the interests of justice''.
We feel that the issue is important, and we should be grateful for the Government's comments.