Criminal Justice and Immigration Bill

Since 2 October 2006, defendants appearing before magistrates’ courts and youth courts have been required to pass the financial eligibility test to qualify for publicly funded representation. However, since 1 November 2007, all defendants under the age of 18 are passported through the means test. In the debate in another place held on the sixth day in Committee, the Minister, Mr Hanson, said: "““I take the view that whatever our arguments around the question of publicly funded support under the 1999 Act and the amendments to it, from 1 November there will be sufficient safeguards to ensure that those individuals who require publicly funded support will get it””.—[Official Report, Commons Criminal Justice and Immigration Bill Committee, 23/10/07; col. 186.]" By the expression, ““those individuals””, I take him to mean everyone under the age of 18 who appears in court. The determining statute for legal aid is the Access to Justice Act 1999. That ensures that all defendants must satisfy what is described as the ““interests of justice”” test to qualify for funded representation. That test plainly applies to circumstances in which someone is likely to be imprisoned, but more broadly it is better expressed as posing the question, ““Is this individual’s liberty at risk?””. It is that issue which is of crucial significance, particularly in relation to youth rehabilitation orders. There are certain combinations of a youth rehabilitation order which would amount to quite a serious deprivation of liberty and would fall squarely within the interests of justice test. The ideas that animate these amendments are compelling, but we all recognise that there is great pressure on the legal aid budget. The noble and learned Baroness, Lady Butler-Sloss, has rightly pointed out that actually there is a lot of misplaced weight on that budget because money spent publicly to fund representation saves an enormous amount of court time and leads more often than not to higher quality judicial decisions. But that is a general argument about legal aid upon which the Minister may or may not wish to express an opinion. The issue to which the Minister must address himself is how the 1999 Act bears on youth sentencing.