Criminal Defence Service: enforcement of order to pay cost of representation

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Henry Bellingham (Shadow Minister, Justice; North West Norfolk, Conservative)

I beg to move amendment 501, in clause 131, page 81, leave out line 19.

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Frank Cook (Stockton North, Labour)

With this it will be convenient to discuss the following: amendment 502, in clause 131, page 81, leave out lines 39 and 40.

Amendment 503, in clause 131, page 81, leave out line 42.

Amendment 504, in clause 131, page 82, leave out lines 3 to 29.

Amendment 505, in clause 131, page 82, leave out lines 36 to 38.

Amendment 506, in clause 131, page 82, leave out line 47.

Clause stand part.

That schedule 16 be the Sixteenth schedule to the Bill.

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Henry Bellingham (Shadow Minister, Justice; North West Norfolk, Conservative)

The clause covers the recovery of defence costs orders that can be issued in certain circumstances. I should be grateful if the Minister explained why she feels that it is necessary to enable these overdue sums to be recovered by way of a summary action through the magistrates courts. That is the essence of amendments 501 and 503.

We are talking about potentially quite vulnerable people. We are concerned about the inclusion in clause 131(2)(b) of

“recoverable summarily as a civil debt”,

which is repeated in subsection (3). It is perfectly adequate to continue with the current system that is in place. The clause would give the Government too much power. We are all in favour of recovering overdue sums that are owed, but we are talking about people who are vulnerable in respect of some categories in this area. These are litigants who, for whatever reason, have got themselves into all sorts of trouble. Some will be able to afford to pay up in respect of recovery of defence costs, but others will find that difficult. Why is it necessary to extend the powers in such a significant direction?

Why do we need to have subsection (3)(b), which would include proposed new subsection (2A)(b), under which the Government are asking for enforcement regulations that may

“provide for the withdrawal of an individual’s right to representation in certain circumstances”?

I am not prepared to just let that go by on the nod, because that is a significant step. We are talking about withdrawing an individual’s right to representation. Why is it necessary to do that? The substance of our amendment would take that provision out. It is a probing amendment and I put it to the Minister in that spirit, because we do not want to wreck the clause. However, although she might tell me that most of the people involved could well afford to pay overdue costs, some will find it difficult. To withdraw from them the right to representation is a step too far.

Amendments 502, 504 and 506 deal with the part of the clause that enables the court effectively to issue vehicle sale orders. They are probing amendments that withdraw from the clause all references to vehicle sale orders, motor sale orders and all the business about motor vehicles being clamped, sold or otherwise disposed of.

My hon. and learned Friend the Member for Harborough mentioned how important it is that offenders are rehabilitated. He spoke eloquently about how a person’s car is often the critical requirement for them to find a job and get their life back on track. Is it fair to go after the cars of the most vulnerable people in society? Often, we will be talking not about Aston Martins but about clapped-out Astras or Peugeots. To have them clamped and taken away to recover costs—albeit overdue ones—is a power too far that could be abused. I would like the Minister to justify that to the Committee.

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Jennifer Willott (Cardiff Central, Liberal Democrat)

I share the hon. Gentleman’s concerns, in particular on two issues—the withdrawal of the right to representation and the removal of a car. He has already made eloquent comments on the need for a car, particularly for purposes of work. The measure relates to repayment of a debt, but if the car is taken away it will become almost impossible for that person to get a job, particularly since, by dint of being under these provisions, they will already have a criminal conviction. They will be doubly disadvantaged in the job market.

The provision states that the value of the car must be at least half the value of the debt. If a vehicle is someone’s main asset and their only way of getting work, how can they be expected to repay the other half of the debt if the vehicle has been sold and they do not have it? It seems a short-sighted measure. I understand why it looks like an attractive prospect, but I share the concerns outlined by the hon. Gentleman.

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Bridget Prentice (Parliamentary Under-Secretary, Ministry of Justice; Lewisham East, Labour)

Obviously, we are committed to the principle—shared, I hope, by the rest of the Committee—that those who can genuinely afford to pay towards their defence costs in criminal proceedings should do so. That was underpinned by the introduction of means-testing in magistrates courts in 2006. Our recent consultation extended that to the Crown court. It is essential that the proposed scheme for means-testing in the Crown court, under which certain defendants would be required to contribute from their disposable income throughout the life of the case, is backed up by an effective and efficient system for collecting and enforcing contributions. We often get criticised for not ensuring that we collect those contributions as speedily as we ought to, and we have a clear responsibility to ensure that contributions are paid in a fast, effective and firm way. The sanctions will include the existing measures of attachment of earnings, distress warrants, freezing injunctions, third party debt orders and charging orders, as well as the new powers set out in the clause and schedule 16.

The hon. Member for North-West Norfolk asks why we need this measure, but it is nothing new. It simply repeats the provision in the Access to Justice Act. I recognise that it might appear to be drawn widely. If it is, I will look at it again to ensure that it is not too wide. However, we do not intend to withdraw the right to representation except where the applicant asks for it. It will not be a decision for the court or anyone else; it will be a decision for the applicant if they feel that they do not need representation and can proceed with the situation as it stands.

Amendments 501 and 503 remove the provision that contribution orders and recovery of defence costs orders be enforceable summarily as civil debts in the magistrates court. The effect would be that the Legal Services Commission had to go to the county court or the High Court to have the orders enforced, which would remove the flexibility provided by the system put forward here. Magistrates courts are well suited to collecting unpaid sums from a defendant’s income, whereas the county court and the High Court enforce debts by the seizure of bank accounts, stocks, shares and other property. Enabling enforcement to take place in any of the courts will speed up the process and maximise savings from the scheme. The amendments would undermine the swiftness and the focus on debt recovery at the earliest possible stage.

Amendments 504 to 506 concern removing the power to seek vehicle clamping orders following non-payment in limited circumstances. The proposed Crown court scheme includes a generous and fair assessment process, which can accurately calculate the defendant’s liability to pay towards the representation, and a hardship unit will act as an additional safeguard for those who are judged able to contribute but who feel that they cannot meet the terms of their payment plan. Where a defendant can genuinely pay a contribution but wilfully neglects to do so, it is essential that the Government can take effective action to recover the debt. It is equally important that, before the enforcement action is taken, every effort has been made by the Legal Services Commission to encourage voluntary compliance and to offer support if necessary to those who need assistance in paying the debt.

I stress that the application to the court for a clamping order and/or an order for sale would only be made in appropriate cases, when all other avenues had been explored but the defendant had still wilfully failed to comply with the contribution order.

I will not go down the road of arguing that a car is needed to get employment, because I personally do not think that a car is a necessity to find employment. We have a public transport system that people can use. So that argument should not be used as the be-all and end-all in considering the clause.

8:15 pm
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Jennifer Willott (Cardiff Central, Liberal Democrat)

Will the Minister confirm whether the provision of public transport will be taken into account when deciding on an order under part 6? There are certainly parts of the country where using public transport is simply not a viable way for someone to hold down a job. Would that be taken into account?

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Bridget Prentice (Parliamentary Under-Secretary, Ministry of Justice; Lewisham East, Labour)

I have just said that the court, in making a decision, would only make it appropriately and when all other avenues have been explored. I assume that the court would take into account all of the defendant’s concerns and needs before deciding to make the clamping order. Schedule 16 makes it clear that any regulations made for the detailed operation of motor vehicle orders would offer protection to defendants: first, the court must be satisfied that failure to pay is a result of wilful refusal or culpable neglect and that the amount raised by the sale would exceed half the amount due; secondly, by specifying that a disabled person’s vehicle may never be the subject of an order; and thirdly, by specifying that, once a vehicle has been clamped, it may not be sold until after a specified period.

The powers set out in clause 131 and schedule 16 add to existing measures, ensuring that the defendant who can afford to but nevertheless fails to comply will face a speedy, effective but proportionate sanction. On that basis, I hope that the hon. Gentleman feels able to withdraw the amendment.

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Henry Bellingham (Shadow Minister, Justice; North West Norfolk, Conservative)

I am grateful to the Minister for her explanation, which was given with her usual courtesy and understanding of our position. I would take her to task for what she said about cars, but I shall not go down that byway tonight, Mr. Cook, because you might well call me to order. On the basis of what the Minister  has said, some of the assurances that she has given to us and her commitment to look again at one or two aspects, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 131 ordered to stand part of the Bill.

Schedule 16 agreed to.

Clause 132 ordered to stand part of the Bill.