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Restraint Orders (Legal Aid Exception and Relevant Legal Aid Payments) Regulations 2015

Volume 760: debated on Tuesday 10 March 2015

Motion to Consider

Moved by

That the Grand Committee do consider the Restraint Orders (Legal Aid Exception and Relevant Legal Aid Payments) Regulations 2015.

Relevant document: 22nd Report from the Joint Committee on Statutory Instruments

My Lords, it is a fundamental principle of our justice system that any person prosecuted by the Crown has the right to a properly conducted defence. The criminal legal aid scheme provides that legal aid will be granted to those who cannot afford to pay. This may include apparently wealthy individuals who have been prevented by the provisions of the Proceeds of Crime Act 2002 from making use of their assets to pay for a legal defence.

Prior to the enactment of POCA, many defendants who were likely to have their assets confiscated if convicted would recklessly dissipate assets through lavish spending on their defence in an attempt to secure an acquittal at any cost and reduce the amount available for confiscation if convicted. POCA introduced provisions to prevent this occurring by prohibiting the use of assets “restrained” or frozen to pay for defence costs because they may be needed to satisfy a future confiscation order. As a consequence, some apparently wealthy individuals, including some individuals suspected of involvement in serious and organised crime such as drug smuggling and large scale fraud, rely on legal aid to pay for their defence.

In recent years, a system of means testing for legal aid has been introduced for all Crown Court defendants. Those who can afford to pay some or all of their legal aid costs are required to do so. While anyone charged with a criminal offence and facing imprisonment or loss of livelihood is entitled to legal aid, I think that most noble Lords would agree that, if the defendant can pay some or all of their legal bill, they should.

The effect of the POCA provisions that prevent defendants from using restrained assets to pay their defence costs means that some wealthy individuals are not only granted legal aid but are also unable to pay any contribution towards it. This leads to a public perception of unfairness in respect of the legal aid scheme. Members of the public may wonder why such an individual should get a taxpayer-funded defence without making any contribution when less well-off defendants still have to contribute to the cost of their defence. After all, as we are asking people on modest incomes to pay something towards their defence costs, it seems only fair and reasonable that we ask millionaires to do so as well.

These regulations, and related regulations to be laid in a negative resolution instrument by the Ministry of Justice, introduce a new system that will help ensure that individuals who are required to make a contribution to the cost of their defence are made to do so. This will be accomplished by keeping such a defendant’s assets under restraint until they have either paid off their outstanding legal aid payments in full or the court discharges the restraint order.

To ensure that the new policy does not have a negative impact on either victims or the rest of the criminal justice system, the Legal Aid Agency will seek to recover legal aid payments from capital assets that remain after the confiscation process has been completed. This instrument allows for the extension of a restraint order beyond the payment of a confiscation order when a capital contribution order is issued before the end of the confiscation process. The person subject to the order will then be required to pay legal aid contributions from the remaining restrained capital after the confiscation order has been paid in full.

Not every restrained assets case will fall within the new regime. The defendant may have no assets remaining after any compensation owed to the victims and moneys owing under the confiscation order have been paid in full. The Government’s view is, however, that where a defendant has assets left after their ill-gotten gains have been confiscated and their victims compensated, it is right that such assets be used to repay the costs of their criminal defence. These regulations will help to ensure that that happens.

The regulations allow for the payment of legal aid contributions from restrained assets, but it may not always be considered necessary to continue with restraint in order to get a capital contribution order satisfied, in which case the court will be asked to lift the restraint order after the confiscation process has been completed. The capital contribution order will be issued against the remaining unrestrained assets. This is something that will be considered on a case-by-case basis after discussions between the prosecutor and the Legal Aid Agency.

As a result of these changes and the associated memorandum of understanding, a closer working relationship between the prosecutors and the Legal Aid Agency will be developed, ensuring that the process for recovering legal aid costs is smoother, regardless of whether a restraint order is extended past the confiscation order.

These changes are intended to come into force on 1 June. It is anticipated that these types of cases accrue about £2 million of legal aid costs a year and these changes will help the Legal Aid Agency to recover as much of these costs from offenders as is possible. I beg to move.

I have just a couple of points. Obviously, we support the intentions behind these regulations and what they seek to achieve.

Could I just ask about paragraph 4.3 of the Explanatory Memorandum? Once again, I am not sure exactly what to make of it. It says:

“The enabling powers for the regulations (found in sections 46 and 47 of the CCA)”—

that is, the Crime and Courts Act—

“are not yet in force. It is our intention to commence sections 46 and 47 before the regulations are made, but after they have been laid in draft and debated by both Houses of Parliament”.

Does that mean that we will end up with a situation where the relevant sections have been commenced but there are no regulations in existence, or am I misinterpreting what is indicated in paragraph 4.3? It would be helpful if the noble Baroness could clarify what exactly it means in practical terms.

I have just one other point. I think the noble Baroness said that the changes would probably be expected to recover another £2 million that is not being recovered at the moment. Is that expected to be from a significant number of people, or is the argument—and obviously the reason for these regulations—that it is a fairly limited number of people who are withholding, able to withhold or not paying quite significant sums of money? The Minister has given the figure for the money that should be and is not being clawed back at the moment, but are we talking about a relatively limited number of Mr and Mrs Bigs in this world who are withholding or able not to pay the contribution towards the legal aid, or does it cover a large number of people in that position who will make up the £2 million total that it is hoped will be retrieved under these regulations?

My Lords, I thank the noble Lord, Lord Rosser, for his questions. On his first question on commencement, the answer is quite technical. Would he be happy for me to write to him?

I say this seriously, even though it may sound a facetious comment. Could the noble Baroness persuade whoever writes the letter to write it in language that even I might be able to understand? That would be very helpful.

I totally support the noble Lord on his wish to receive letters in plain English. I shall put in that request.

On the number of people and the amount that I mentioned, the amount is an estimate of money accruable to legal costs after confiscation and living expenses. The numbers are not known, but the noble Lord will be pleased to hear that we do not have massive numbers of people undertaking this type of criminal activity, so I cannot imagine that the numbers are huge. I will correct that comment if I am wrong, but I would not have thought that it would constitute a significant number of people at all.

I shall write to the noble Lord on the first question, in plain English.

Motion agreed.

Sitting suspended.