Coroners and Justice Bill

Again, the amendment has been put forward by Liberty, to which I am grateful for assistance. It would remove paragraphs (a) and (b) from new subsection (2A) of Section 17A of the Access to Justice Act 1999, which would allow regulations to be made to allow costs incurred in enforcing a contribution order to be made against the person against whom the order is sought, and would allow regulations to provide for the withdrawal of a person’s right to legal representation. The change to the Access to Justice Act in Clause 136(3) would allow regulations to set out that the Legal Services Commission could not only recover the cost of the legal representation from a person so represented, but also the costs of trying to enforce an order to pay, which would necessarily include legal costs. This could quite conceivably mean that a person who has been given legal aid funding in a criminal matter but later required to pay for his or her legal representation is ordered to pay costs that could exceed the amount of the initial representation. An order for the recovery of defence costs can be made against someone who is convicted of an offence in the Crown Court and higher courts and earns over £22,235, has capital of over £3,000 or has more than £100,000 equity in their home. These are not necessarily high-income earners or those with substantial assets. Allowing a requirement to be imposed to add on the costs of enforcing an order which may well exceed the amount of the order itself does not seem, in our view, to be fair or proportionate. Paragraph (b) of new subsection (2A) of Section 17A of the Access to Justice Act would allow regulations to be made that could provide for the withdrawal of an individual’s right to representation in certain circumstances. Article VI of the Human Rights Act provides for the fundamental right to a fair trial and the right to free legal assistance in the interests of justice. The withdrawal of legal aid in criminal cases could breach the right to a fair trial. Failure to pay a costs order should not result in removal of representation, such as at any subsequent appeal. This matter should be left to secondary legislation, particularly in the light of the obligations under Article VI.