This is the last in a series of four articles, all of which present radical ideas for potential changes to legal aid in England and Wales, rooted in current practice in Nordic jurisdictions. The proposals are controversial and may not be suitable for wholesale adoption but aim to shake up thinking about legal aid and stimulate further debate. Here, Anna Barlow argues that the UK’s means-tested criminal legal aid scheme should be replaced.
The intention of this series of articles has been to open up the debate about legal aid in England and Wales by making proposals arising out of the practice of the Nordic jurisdictions. I do not anticipate that the suggestions will be adopted in their entirety, but hope to shake up thinking around the topics addressed. For this final article, I am turning my attention to criminal legal aid and making a suggestion that is likely to be the most controversial of all: that we consider instituting a public defender scheme. Crucially, though, what I propose is not a salaried public defender scheme, but a Nordic-style scheme delivered by private practitioners.
Public defender scheme or salaried service?
Public defender schemes are in place in all the Nordic jurisdictions, but their characteristics are different from those often considered and rejected by UK policymakers. Elsewhere in the world – for example, in Philadelphia and New South Wales – such schemes are operated by salaried lawyers and this characteristic is sometimes taken as part of the definition of a public defender system. However, criminal defence services in the Nordic jurisdictions are delivered by private practitioners (a caveat for Finland is given below), yet are also called public defender schemes, are administered separately from legal aid and share characteristics that are absent from criminal legal aid. It is clear, therefore, that a public defender scheme need not entail state employment of the lawyers delivering the service. As a result, the dismissal of such schemes for England and Wales may have been too hasty, based as it has been on the evaluation of a pilot modelling a salaried service.1Lee Bridges et al, Evaluation of the Public Defender Service in England and Wales, 2007.
Characteristics of the Nordic public defender schemes
Several aspects of the Nordic public defender schemes distinguish them from the English and Welsh criminal legal aid scheme, even though both are delivered by private practitioners. Two distinctions are key: a rejection of means testing; and the administration of the scheme by the courts.
Nordic public defender schemes do not apply a means test at point of assistance, but defendants who are subsequently convicted are required to repay a proportion of their defence costs, to a varying degree. In Denmark, the obligation to reimburse defence costs upon conviction is absolute and applied regardless of the defendant’s means,2Retsplejeloven (Administration of Justice Act), 2017, § 1008(1).
although, overall, only about a third of the costs ordered to be paid are actually recovered.3The Danish Institute for Human Rights, Retfærdig Rettergang Status 2015–16, chapter 5.4. In 2014, DKr450m were ordered to be paid and DKr150m were recovered.
The requirement in Norway is conditional; a convicted defendant should ‘normally’ be ordered to pay the costs incurred, but only ‘if it is deemed possible to obtain payment thereof, and [such costs] shall be proportionate to the financial capacity of the person charged’4Straffeprosessloven (Criminal Procedure Act), 1981, §436 and 437.
with the result that, in practice, recovery is often symbolic in cases other than white-collar crime. In Sweden and Finland, the calculation of the repayment is linked to the rules on financial eligibility for civil legal aid, resulting in a percentage contribution upon conviction.5Sweden: Rättegångsbalk (Swedish Code of Judicial Procedure), 1942, chapter 31, 1 §; Lag om målsägandebiträde (Act Concerning Counsel for the Injured Party), 1988, 8 §. Finland: Lag om rättegång i brottmål (Criminal Procedure Act), 1997, chapter 2, 11 §.
An acquitted defendant will not contribute to their defence costs at all, in any of the Nordic countries.
A further important feature of the Nordic schemes is that they are administered by the court, which assigns a public defender at the first hearing, unless one has already been appointed to assist at the police station. Public defenders can be members of an approved panel (Norway) or any properly qualified advocate (Finland, Sweden, Iceland and Denmark), with weight given to the defendant’s preference. In Finland, a public legal aid attorney (a state-employed lawyer in a legal aid office) may also be appointed as the public defender, if the defendant so chooses. As no means test is applied, the courts only consider merits, expressed as lists of circumstances in which public defenders must be appointed. The effect is very similar to the interests of justice test applied in the UK, with seriousness of the offence the main indicator of whether a public defender will be assigned. It is worth noting here that criminal legal aid, with means and merits tests, is successfully administered by the courts in Northern Ireland, so clearly a court-administered approach is not entirely incompatible with UK tradition.
Comparison with UK legal aid
In contrast with the Nordic jurisdictions, means testing does, of course, apply to criminal legal aid across the UK, and some defendants have to pay towards their defence up front because they are ineligible for legal aid or are eligible with a contribution. If a defendant who has paid all or some of their defence costs is acquitted, provisions allow for reimbursement to a varying degree. In England and Wales, private defence costs can only be refunded at legal aid rates, and not for all cases.6No reimbursement is possible after Crown Court acquittals unless the defendant applied for legal aid and was refused on the basis of means: Prosecution of Offences Act 1985 s16A(5A).
As these rates are unlikely to match private fees, the defendant is likely to be out of pocket. Contributions paid towards criminal legal aid are fully refunded with interest upon acquittal.7Criminal Legal Aid (Contribution Orders) Regulations 2013 SI No 483 reg 37.
The rules are more generous to acquitted defendants in Northern Ireland. There, private defence costs can be reimbursed at an amount ‘reasonably sufficient to compensate the accused for the expenses properly incurred by him in carrying on the defence’,8Costs in Criminal Cases Act (Northern Ireland) 1968 s3(3).
so an acquitted defendant will only bear any excessive costs. Scotland, however, has no scheme for the recovery of defence costs by acquitted defendants, with the justification that ‘prosecution is undertaken in the public interest, on the basis of the test outlined in the prosecution code … An acquittal does not equate to a finding that it was not in the public interest to take proceedings’.9Scottish Civil Justice Council and Criminal Legal Assistance Bill: response from the Scottish government to the Justice Committee – stage 1 report, Justice Committee (Scotland), 18 October 2012, page 10.
As seen above, Nordic defendants who are convicted must repay some or all of their defence costs; an equivalent issue arises if a legally-aided criminal defendant is convicted. In England and Wales, recovery only occurs if the convicted defendant has significant capital.10Criminal Legal Aid (Contribution Orders) Regulations 2013 Part 2.
Otherwise, the final result is similar to that in Sweden and Finland: the only financial loss to a convicted legally-aided defendant will be the legal aid contributions (equivalent amounts in Sweden and Finland will be paid at the end of the case).
In Northern Ireland, there has, since 2012, been the option to recover Crown Court criminal legal aid costs upon conviction,11Criminal Legal Aid (Recovery of Defence Costs Orders) Rules (Northern Ireland) 2012 SI No 268.
though there is currently no mechanism in place to identify suitable cases for such an order.12In the first four years of the existence of these powers, only one recovery order was issued and no recoveries were actually executed: Managing legal aid, Northern Ireland Audit Office, 21 June 2016, para 3.10, page 23.
A reasonableness test applies and the judge must consider whether recovery would cause undue financial hardship to the assisted person, their dependants or immediate family,13Criminal Legal Aid (Recovery of Defence Costs Orders) Rules (Northern Ireland) 2012 r5(3).
leading to a position close to that in Norway, described above.
Despite the reimbursement and recovery rules, which bring the two types of system closer together, there is a significant difference between the two models in the financial burden on defendants, particularly those who are subsequently acquitted. For them, a public defence system requires no financial outlay during or after the investigation and trial, whereas in criminal legal aid schemes, this protection is only afforded to those financially eligible without a contribution, and post-acquittal recovery of private fees or legal aid contributions is significantly limited.
Finland – a dual system
Finland is in the unusual position of having both criminal legal aid and a comprehensive public defender scheme, introduced in 199814Lag om rättegång i brottmål (Criminal Procedure Act), 1997, chapter 2, as amended by statutory instrument 6.2.1998/107.
on the principle that ‘a person suspected of a crime shall always, irrespective of his economic situation, have the right to a defence counsel at the state’s expense during investigation and trial when he cannot sufficiently protect his rights without expert representation’.15Government Bill 132/1997, page 32.
Defendants and their lawyers can choose which scheme to use, although defendants who are financially ineligible for legal aid can, of course, only use the public defender scheme and those who are eligible for legal aid with a contribution may prefer a public defender, who will be free at the point of assistance. The two routes apply the same rates of lawyers’ pay,16Lag om rättegång i brottmål, 1997, chapter 2, 10 §.
and practitioners have not found significant differences between the schemes, which, for clients who are eligible for legal aid, are largely interchangeable.
Ideological advantages of a public defender scheme
If the Finnish experience is that, for practitioners, there is little to choose between these systems, why should England consider a change? One answer lies in the reason for introducing the public defender scheme in Finland: any person accused of a sufficiently serious crime should, as a matter of principle, be entitled to a defence, paid for by the state. Collecting defence costs only after conviction is a practical embodiment of the principle of ‘innocent until proven guilty’.
Criminal legal aid can be seen as a social welfare benefit, with consequent unhelpful preconceptions, but a non-means-tested public defender scheme keeps the focus on the fundamental human right to a fair trial.
It is also possible that a public defence scheme in England would engender a more positive public attitude to criminal defence and, to some extent, protect against funding cuts. Criminal legal aid can be seen as a social welfare benefit, with consequent unhelpful preconceptions, but a non-means-tested public defender scheme keeps the focus on the fundamental human right to a fair trial. Public defence attorneys, appointed by the courts, are structurally woven into the fabric of the criminal justice system and therefore, also, potentially less exposed to politicised funding decisions.
Of course, Nordic-style public defender schemes involve the state paying for the successful defence of any defendant, even a wealthy one, which does mean that, in a small number of cases, there is additional cost. However, there are savings to be made by the removal of means testing and in the administration of the scheme by the courts rather than a legal aid organ. The precise financial balance between the two systems will depend on the detailed conditions in a country, but it may well be that a public defender scheme would be no more expensive than the current criminal legal aid scheme, and there are strong reasons of principle to prefer such an approach.
Wales leading the way
The Commission on Justice in Wales has accepted that a Nordic-style public defence scheme is ‘more consistent with the view that the right to a defence (innocent until proven guilty) is a fundamental right rather than a means dependent benefit and must be treated as a key tenet of access to justice’.17Justice in Wales for the people of Wales, Commission on Justice in Wales, October 2019, para 3.83, page 131.
The commission considers that, for Wales, ‘a public defence scheme … akin to the typical approaches adopted in Nordic nations … would provide a model for better and fairer access to justice for those facing criminal prosecution compared with the current model of criminal legal aid’.18Justice in Wales for the people of Wales, para 3.84.2, page 131.
While England does not have the devolution of justice policy as a catalyst for new thinking, we should nonetheless be bold and reconsider our approach to criminal defence, joining Wales in adopting a Nordic-style public defence scheme.
Criminal legal aid in England, as well as Wales, should be replaced by a non-means-tested public defender scheme, free at the point of assistance, administered by the courts and delivered by private practitioners. This would send an important message of principle and remove the need for the current costly administration of criminal legal aid by the Legal Aid Agency.