Reform of Legal Aid in England and Wales: the Government Response Part 43
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This is Part 43 of the government response to Reform of Legal Aid in England and Wales. Please read the other parts for a full picture. Used under the terms of the Open Government Licence http://www.justice.gov.uk/downloads/consultations/legal-aid-reform-government-response.pdf.
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Renting Homes: the Final Report, Cm 6781,May 2006.
http://www.justice.gov.uk/lawcommission/renting-homes.htm
255 Reform of Legal Aid in England and Wales Government Response
applying the law more quickly and easily. The Government’s response to
the Law Commission’s report was included in its response to the Rugg
review.
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(ii) Reducing cases generated by government bodies
7. These proposals relate to procedural reforms which aim to reduce
volumes of case. One proposal was that the volume of interim court
hearings could be reduced if prisoners on remand were no longer
produced to the court every 28 days. Savings would arise if the period
was extended.
8. A second proposal from the Judges Council and other senior judiciary
related to reducing the number and cost of judicial reviews, in immigration
in particular. Another suggestion was that the Crown Prosecution Service
(CPS) should be more selective about pursuing individuals and about
laying charges as current practices lead to too many dropped
prosecutions or judge-directed acquittals, which constitute a waste of
resources.
9. In addition Citizens Advice suggested that merging the four different
workforce employment agencies would reduce the need for employment
advice, and that improved decision making and administration in the
Department for Work and Pensions (DWP) and Her Majesty’s Revenue
and Customs (HMRC) could reduce the need for advice on benefit issues.
The Government response
10. The Government is already considering the prisoner production proposal
as part of the MoJ’s efficiency programme for the Criminal Justice
System.
11. The Government agrees with the proposals on judicial reviews and our
plans are set out at Annex A.
12. On criminal prosecutions, there is no strong body of evidence to indicate
that there are disproportionate numbers of prosecutions which are
dropped or result in a judge directed acquittal, particularly where the
circumstances which lead to that outcome are foreseeable. For example,
prosecutions are often withdrawn against defendants in multi-defendant
cases when other defendants plead guilty and take responsibility for the
offending. All prosecutions commenced by the Crown Prosecution
Services (CPS) are undertaken in accordance with the Code for Crown
Prosecutors, meeting the evidential and public interest tests. The latest
CPS data shows a conviction rate of 86% across both the magistrates’
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The private rented sector: professionalism and quality – the Government response to the
Rugg review consultation, May 2009.
http://www.communities.gov.uk/documents/housing/pdf/1229922.pdf
256 Reform of Legal Aid in England and Wales Government Response
courts and Crown Court. There may be unintended consequences for
victims, witnesses and local communities if prosecutors take a more riskaverse approach towards prosecution.
13. The Government announced on 3 December
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a review of the
Government’s workplace rights, compliance and enforcement
arrangements to establish what scope there is to streamline them and
make them more effective. Findings will be published later this year.
(iii) Restricting eligibility further via the merits test
14. There were suggestions that the LSC should enforce more strictly its
merits test for granting legal aid in civil and family proceedings. In family
law, respondents put forward the idea of enforcing more strictly the merits
test in private law children cases as an alternative to removing such
cases from scope. The Law Society suggested that such a measure could
reduce the volume of contact cases by 20-30%. Resolution suggested a
list of questions that might be used by the LSC to enforce a stricter merits
test.
The Government response
15. Many of these questions are already taken into account in the current
merits test. Others are similar to the issues that would be raised in
considering child protection issues for the purposes of the domestic
violence exception (see Annex A, paragraph 44). Following the
consultation, we have decided to make one change to the merits test (see
Annex C). The Funding Code has been amended a number of times over
recent years to tighten up the criteria for awarding legal aid. There are
administrative costs in enforcing merits tests, and inherent difficulties in
relying on them for savings. For example, it is very difficult to challenge
the solicitor’s assessment of the prospects of success for a case.
(iv) Application of ‘polluter pays’ for public bodies losing cases
16. One suggestion was that where public bodies (which are party to a case)
cause unnecessary costs then they should bear the cost. In criminal
cases, it was argued that greater use should be made of wasted costs
orders, and that the threshold for making wasted costs orders should be
lowered to enable this. Another suggestion was that where the
administrative decisions of public bodies are overturned these bodies
should pay the legal aid costs involved and also pay a surcharge. In both
instances there would be a financial incentive on the public bodies to
engage in actions which improved their decision making and reduced the
costs to legal aid.
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