Revised

Members present

Lord Inglewood (Chairman)

Lord Brown of Eaton‑under‑Heywood

Lord Empey

Baroness Hamwee

Lord Henley

Lord Hussain

Lord Jones

Lord Mackay of Drumadoon

Lord Rowlands CBE

Baroness Wilcox

_______________

Examination of Witnesses

Senior District Judge Howard Riddle, Chief Magistrate, Deputy Senior District Judge Emma Arbuthnot, Deputy to the Chief Magistrate, and District Judge John Zani, Westminster Magistrates’ Court

Q132 The Chairman: I extend a very warm welcome to our first panel of witnesses, who are all dealing with these matters of extradition right at the coalface: Judge Howard Riddle, Judge Emma Arbuthnot and Judge John Zani, who are from the Westminster Magistrates’ Court. I begin by reiterating our thanks for the opportunity you gave us before the recess to come and see first-hand the work you were doing. It was very helpful and I think there are some members who may not have been able to be there then who would quite appreciate an opportunity to come and see you doing what you are doing in Westminster now.

Senior District Judge Riddle: Thank you. As you know, they would be very welcome.

The Chairman: Thank you very much. I will ask each of you to introduce yourselves, and if any or all of you want to make an opening statement, please feel free to do so. We will then move into the questions. As far as the Committee is concerned, nobody needs to feel obliged to answer all of them. We are interested if you disagree with each other and we want to work through the general area that has been brought to our attention. Please also feel free to tell us anything that we have not, as it were, identified as being of interest that you think is important.

Judge Riddle, please open the batting and tell us who you are, and then we will go down the panel.

Senior District Judge Riddle: Yes. I am the Senior District Judge and Chief Magistrate of England and Wales. I have been in post since 2010. That is the title that Parliament gave me; it is not one I chose.

Deputy Senior District Judge Arbuthnot: Emma Arbuthnot, Deputy to the Chief Magistrate. I have been in post as a district judge since 2005 and became the Deputy Senior District Judge two years ago. I was a barrister in practice before that.

District Judge Zani: John Zani, District Judge. I was previously a solicitor in private practice with a fairly extensive extradition practice, and I took up a full‑time judicial appointment in January 2001. I am also a link judge, which is, I suppose, the voice of the Chief Magistrate and his Deputy for London and South East England.

The Chairman: Would you like to make an opening statement?

Senior District Judge Riddle: I do not think any of us intended to, thank you, Lord Chairman.

Q133 The Chairman: Right, fine—thank you very much. If I might just open the batting, do you believe that there is a significant problem of people receiving poor legal advice and, if you do, can you give us specifics about what that might be? In particular, are you sure that the duty solicitors’ rota ensures that people get sufficiently expert representation in the first instance? Also, bearing in mind this is very much a specialist or niche area in legal practice, is self‑certification to join the duty rota the appropriate way of doing it? Do you, in fact, think there is some sort of training accreditation gap in that quarter? Finally, do you think that there is equality of arms between the prosecution and the defendant in this area?

Senior District Judge Riddle: Thank you, Lord Chairman. This is something we have discussed together. We have also discussed it with some of our other colleagues. We are a fairly small group of judges dealing with this work, so we are able to get a broad consensus. Our view is that the extradition lawyers in England and Wales are of a very high calibre indeed, both at the bar and in the solicitors’ profession. They have, for a long period of time, been wonderfully ingenious in the loopholes that they are able to find.

There are, if you like, two different situations. There is the duty solicitor situation, which is at the first hearing. We are enormously reliant on our duty solicitors, and our view is that, with one or two possible exceptions, they perform their task extremely well. I am not able to give you, and I do not think either of my colleagues here is able to give you, any example of where we thought that an individual was let down by the duty solicitor. I have had two complaints made to me in the last four years. I investigated one of them, because it came from the High Court, and it was simply a question of the duty solicitor in question having been away on holiday and not picking up a change in law that had happened recently.

It is very difficult to assess the quality of advice, and the reason for that is that the best advice very often may be: “Accept extradition and go back, because winning your case in England and Wales is not an acquittal. The process could start again if the warrant was defective, for example, and if you are successful in fighting extradition you can never go home to see your parents. You cannot travel in Europe or, indeed, outside England and Wales for fear of being re‑arrested on the warrant”. A lot of those who might look, as it were, a little tame may well be giving the right advice. On the other hand, there are other lawyers whose clients you notice never consent to extradition.

That is it in terms of quality. Having said all that, I cannot see, myself, why there would be any harm in ticketing. There is an excellent book on the subject. We provide training. We have, through the judges at Westminster, provided training. You tend to find that the people who come are probably the best; it is not compulsory, of course. It would not seem to me very difficult or very expensive for duty solicitors new to the rota to have the ticket, and I think we would, overall, welcome that without wanting to be alarmist about the current quality.

As far as inequality of arms is concerned, again the CPS lawyers—and I do not mean this as a criticism of those who do the crime list—in the extradition court are very able, but one does not get the impression that they are out‑muscling, if I can put it that way, the defence lawyers. I would not be troubled, by and large, by an inequality of arms.

Q134 The Chairman: One thing I was interested in was that frequently you think that the right advice to give someone is to say, “I will go home voluntarily”. Is there too much of a macho culture and some defence lawyers encourage them to stand and fight here?

Senior District Judge Riddle: I would not want to characterise it in that way and I certainly would not want to criticise those lawyers, because we are not privy to the advice that they give or to the instructions that they get. Certainly something we emphasise in training and one of the factors I have not mentioned to you is the sheer anxiety of waiting for extradition proceedings to conclude. One of the very distressing things we see as the process goes on and the horrors, if you like, of extradition become perhaps overemphasised in court is that people do get very anxious and we do get, for example, significant incidents of self‑harm. Sometimes you wonder—and it is purely a rhetorical question—whether, if they had gone back and served their four months in Poland, they would have been back here long ago and perhaps not put themselves through such an ordeal.

The Chairman: Before going on to Lord Brown, you mentioned ticketing. Could you, for the sake of the record, please just describe that?

Senior District Judge Riddle: Yes. I believe the process has to be authorised by the Law Society, because these are solicitors who are paid by the Law Society through their role on the duty solicitor scheme. All duty solicitors are interviewed; they have to go through a panel process. It would not seem to me very difficult, I think, for the Law Society to accredit a team, and perhaps give some pre‑reading. I think you saw or may be seeing or have heard from Ed Grange and Rebecca Niblock; they have written a very good introductory book on the subject. You could expect a little test on whether you know what you are doing, and I do not think it would take very much in each individual case.

Lord Rowlands: On the back of this question, I wonder if I might just raise the question of proportionality and whether with the recent bar you are seeing this affecting the decisions. Are the defence lawyers using the guidance that the Lord Chief Justice has given on proportionality?

Senior District Judge Riddle: In my experience, surprisingly, no. This is Section 21A proportionality. We may be touching on that later when we look at how the common law has evolved a response to proportionality through Article 8, but I have had very few pure arguments under Section 21A. In fact, of course, the new proportionality bar is very restrictive. It applies only to accusation cases, so you cannot run it on a conviction, and it gives really three criteria that the court can take into account and it expressly says that, for example, delay is not a factor to take into account. I do not know if my colleagues have had different experiences.

District Judge Zani: No.

Deputy Senior District Judge Arbuthnot: Article 8 is still the main proportionality argument that is argued in virtually every case that goes to a full hearing.

Lord Rowlands: They are not turning up with the guidance and saying, “My case qualifies under this and this”.

Deputy Senior District Judge Arbuthnot: No, not in my experience.

Senior District Judge Riddle: No, they are not. To go back to the other part of your question, I simply do not know the extent to which the National Crime Agency, using the Lord Chief’s guidance, is filtering out cases that do not come before us, and that may well be happening. One thing we really would not welcome is a flurry of very minor cases coming before us if the NCA can filter them out.

Q135 Lord Brown of Eaton‑under‑Heywood: Can I first echo what the Lord Chairman said about the visit we made to your court in July? I found it enormously valuable and also, if I may say so, I greatly enjoyed it.

Legal aid is what I want to ask you about and on this I draw from your very helpful written submissions. Paragraph 13, page 81 of our written bundle, deals with these particular matters and it is pretty clear what your thinking is, but perhaps we had better have it on the record. We are told that over a two‑year period, August 2012 to the end of June 2014, some 95% of legal aid applications eventually came to be approved, and the real question is should it be automatic and what is the cost‑benefit of all this and so forth? As you know, the argument largely against the present means‑testing system is it leads on occasion to aborted hearings and all the delay and expense that that involves and also, consequentially, to people spending more time in custody. As far as aborted hearings are concerned, your paragraph 13 suggests that between February of this year and July of this year more than 11 cases listed for final hearing were ineffective because of delays caused by legal aid. That is the position, is it?

Senior District Judge Riddle: That is the position. We have noticed an improvement, I am pleased to say, since June. It was running for a while at something like five cases a month adjourned simply because of legal aid difficulties. It is now down to two. I want to emphasise that this is, in my experience, never the fault of the staff who are assessing this. They do an excellent job, and if they have all the material on time, they will turn it around in a couple of days. The difficulty arises with providing further information, sometimes information that is very difficult for a person to provide: wage slips when you are a fruit picker, to pick an obvious example, a partner’s wage slips and so on. There has been an improvement, but it remains a real problem.

Our basic concern is fairness. It is uncomfortable for us, as judges, to have an unrepresented person, who probably does not speak English, who may not have been in this country very long, alone in court with us with no one to help them but an interpreter. That is our major concern.

We are probably not in a position to tell you certainly which way the cost equation goes. The 95% you mentioned is, of course, 95% of those who apply. About one‑third overall do not apply. Whether that is because they know they will not pass the means test or whether that is because they believe and therefore would continue to believe that they would be best advised to pay privately for representation for, putting it this way, the top lawyers, I could not really say.

From our point of view, probably the most difficult decision in terms of how we administer these cases that we have had to take recently is that we have built in a delay. We have deliberately built in a delay in hearing these cases, so that when a defendant appears in front of us we can say, “You have had three months to sort out your funding and we are going to go ahead”. That means that there are undoubtedly people in custody longer than might have been the case and people waiting for longer than might have been the case, and even then we are, I think, finding occasionally people saying, “I still do not have legal aid”. Whether that is their fault for not putting in the documents in time, or whether it is the fault of the system for making it very complicated, I could not really tell you.

Lord Brown of Eaton‑under‑Heywood: The third who do not apply for legal aid, what proportion of those do self‑fund and are represented?

Senior District Judge Riddle: I do not have the statistics.

Lord Brown of Eaton‑under‑Heywood: No, but in round terms.

Senior District Judge Riddle: In terms of feeling, I would say—

Deputy Senior District Judge Arbuthnot: I think the majority end up with private representation. It is still unusual for them to be representing themselves.

Lord Brown of Eaton‑under‑Heywood: There is a small body who are unrepresented because they are not legally aided, and a perhaps slightly larger body who are unrepresented because they have not applied in the first place and, for whatever reason, have chosen not to seek it.

District Judge Zani: There are some solicitors who will, I suppose, take a chance and start work from day one in anticipation that sooner or later legal aid will come into effect, because of course it is retrospective to the date when the application was lodged, which probably will have been on day one. That is really their goodwill or them assessing. There are others who say, “Sadly, until that legal aid certificate lands at my door, I do not have the certainty; I do not feel able to start work”.

Lord Brown of Eaton‑under‑Heywood: Of course, the Baker review did recommend automatic legal aid, did it not?

Senior District Judge Riddle: It did and we certainly supported that.

Lord Brown of Eaton‑under‑Heywood: You are not able yourselves to do the cost‑benefit analysis.

Senior District Judge Riddle: No. There are so many variables that come into that: what you count and what you do not count, the cost of prison, the cost of courts, the cost of lawyers who keep coming back and all they are doing on day one is applying for adjournment. I can imagine it would be a very hard calculation to do. I have to say instinctively I feel that there cannot be a lot in it.

Lord Rowlands: What proportion of cases are on remand?

Senior District Judge Riddle: We think about a third; that is the feel. When I went to the Cour d’Appel in Paris to see how they do things, it was very much the other way around. They had two‑thirds in custody. We tend to be more generous, if I can put it that way, with bail. One of the things that is interesting is we tend not to release people on bail without a security, usually in the sum of several thousand pounds, and what is striking is how many people can meet that very quickly.

The Chairman: There is considerable pressure on prison places and remand places, is there not, so that systemically it is not necessarily desirable to pour people into jails?

Senior District Judge Riddle: I am sure you are better placed to obtain the facts than we are, but in my time as a judge the prison population has virtually doubled, going up from 43,000 in 1995 to more like 85,000 now. We are told that there is such pressure on the prisons that people are doubling up. More obviously from our point of view, people are not leaving their cells to come to us, because if they do they will end up not going back to that cell; they will be transferred to a different prison perhaps in a different part of the country. So, we do see some signs of strain. John Zani is also a prison adjudicator, so sees inside the prisons, and we do know and we get reports that tensions are, to some extent, rising, but perhaps that is outside our area of real expertise.

Lord Brown of Eaton‑under‑Heywood: Of those who are bailed, what proportion of them fail to surrender to bail at the second hearing three months after the adjournment?

Deputy Senior District Judge Arbuthnot: Very few. We have a package of conditions: the pay before you leave custody security; we have a curfew; we have reporting; and we tend to use the full package, and that means, I think, that our failures to surrender at the final hearing are minuscule. Probably 1% and that is a guess, I am afraid, if that, because of the package. I think it is the money—the security we get upfront. Often they are families who do not have great means, and therefore it means a lot to them if they have to provide £1,000, which they often do.

Lord Brown of Eaton‑under‑Heywood: Those in custody have even greater difficulty in getting their legal aid because of all the problems of being incarcerated, and no interpreter, few records, casual work and all the rest of it.

Senior District Judge Riddle: Yes.

The Chairman: Lord Mackay is coming in next, but we seem to have covered most of the questions. Possibly the point about the e‑form will be worth pursuing.

Lord Mackay of Drumadoon: Before I come to the e‑form, in answering the previous question you made some reference to the Law Society paying solicitors and I just wanted to clarify how that arises. If a legal aid application is back‑dated to the date it was lodged, which could well be the date of the first appearance, how could the Law Society, as a separate body, become liable for solicitors?

Senior District Judge Riddle: I think I have confused you with the facts that I gave and I am sorry about that. The Legal Aid Agency is the agency that is responsible for payment, but unless things have changed recently the Law Society is still the body that gives accreditation for duty solicitors. You cannot just apply to be a duty solicitor.

Lord Mackay of Drumadoon: They accredit the solicitors.

Senior District Judge Riddle: They do the accreditation, yes.

Lord Mackay of Drumadoon: Yes, but then a separate body deals with individual applications and pays them.

Senior District Judge Riddle: Yes. That is right.

District Judge Zani: The Law Society has no funding responsibilities at all.

Senior District Judge Riddle: It was not always the case.

Q136 Lord Mackay of Drumadoon: Right. Evidence has been placed before us that an e‑form will be introduced for legal aid applications next month. The question arises as to what extent this will ensure that the right people are granted legal aid, qualifying individuals receive legal aid in a timely fashion and decisions on extradition in EAW cases are made within the 21‑day target. I think you have covered some of these points, but is there anything else that any of the three of you would like to add?

Deputy Senior District Judge Arbuthnot: What I might just ask is whether prisoners in custody will be able to fill in the e‑form. How will that work in practice? I suppose the solicitors will have the e‑form on their iPad.

Lord Mackay of Drumadoon: It is not unknown for there to be electronic communications between a prison building and a court room, so where there is a will there is a way, but that is a matter that immediately comes to mind. It is all very well having this good idea, but you have to look at the practicalities.

Deputy Senior District Judge Arbuthnot: Yes, that is it.

District Judge Zani: I think the difficulty still remains in the supporting documentation or evidence. If, for example, you are not in regular employment and you are not claiming benefits, that rings alarm bells, which requires clarity and confirmation.

Senior District Judge Riddle: A word of praise really for the Legal Aid Agency though. When we saw them before, two or three years ago, and raised these problems with the forms being improperly completed, they did work very hard with the solicitors—as you know, there is a core of solicitors who do this work. They went and saw some of those solicitors and pointed out the failings there. An e‑form, it seems to me, if it is the sort of form that we are familiar with that will not let you go to page two until you have properly completed page one, might help. On the other hand, it might have the same problems as other e‑forms; we will have to see.

Q137 Baroness Hamwee: Can we have a word about expert evidence? I know the questions have been framed in the context of legal aid; if you can say something as well about privately funded cases it would be helpful. I think we all rather tend to think either it is legal aid or the sky is the limit as to the costs that can be incurred and paid by a privately funded client and that, obviously, is not the case.

First, is legal aid funding sufficient for expert advice, for instance, on prison conditions abroad, and how does this affect an individual’s ability to pursue the matter of a breach of the ECHR?

Deputy Senior District Judge Arbuthnot: What happens is the application is made to the legal aid fund and it does take a fair amount of time for that particular application to be dealt with. I assume it is because it must be very expensive to send a witness abroad to look at a prison, so that will engender some delay. What then happens is that the witness has to get to the country concerned and get permission to go into the prison, so the whole process of looking into prison conditions with an expert is quite a lengthy one. I would have thought 12 weeks would not be unusual, maybe even 16 weeks by the time the whole thing is sorted out, so that does take time. However, they do grant it, but sometimes the court has to prod the legal aid fund. I have been asked to write a letter before now to say, “This is really necessary and can it please be dealt with in a timely fashion?” because otherwise it does delay things greatly.

Baroness Hamwee: The prodding was what I was interested in. I think we heard they would not pay for a visit to Peru. Are you aware of the ability of expert witnesses to get evidence? It must be quite difficult to get the detail that you might require in the case of some countries.

Deputy Senior District Judge Arbuthnot: I am always rather amazed that some countries are so welcoming to these British experts who are going to look at their prisons, but it seems to be happening. I am not sure the British prisons would react in the same way, but who knows. No, that seems to work quite well.

Baroness Hamwee: Therefore, you are happy with the quality of the evidence that you are able to get.

Deputy Senior District Judge Arbuthnot: Yes.

District Judge Zani: There are also local experts who provide reports, not necessarily people from this country travelling there but experts in their own country who will prepare us a report, critical or not, on how they see the state of the prisons.

Baroness Hamwee: I was interested in your written evidence that you say you would welcome the ability to appoint and pay for a report. You mention CAFCASS and psychiatric reports. That perhaps takes us back to the self‑harm that was mentioned. You say that this would give significant practical advantages at no extra overall costs. Can you flesh that out?

Deputy Senior District Judge Arbuthnot: Particularly from the Article 8 perspective, when you have someone saying they are the sole carer for a child or children and you say to the requested person via counsel, “What is going to happen were the court to make an order that you be extradited?” and they say, “I do not know,” it puts the court in a very difficult position. What we have been doing is writing to the relevant local authority and saying, “Could you please look into this, because there is a danger this person may be extradited and you will then have charge of this child?” and the family is then visited by a social worker. The mechanism is not a very smooth one. It is the court writing letters and I am not sure what would happen if a local authority said, “No, I do not want to do that”. So far, it has all been going rather smoothly. John, have you had experience of this?

District Judge Zani: I have had an experience that was perhaps a little unfortunate. The first report indicated that the local authority was saying that these children were not habitually resident here and so would have to return to their native country. Then, by the time the hearing came up, I had a supplementary report saying that that report was written entirely in error and, “Yes, we do have responsibility”. Now, that can happen, of course, but my experience has been that, generally speaking, local authorities are very aware of their responsibilities and are very keen to try to provide the court with what is very helpful information in what, for us, sometimes is a very well balanced argument.

Baroness Hamwee: The way you are describing this, it is as if you are asking the questions and putting the points that the solicitor might have been expected to raise and you are filling a gap there.

Senior District Judge Riddle: Yes, to some extent we are. This really comes, as Lord Brown probably knows, from Lady Hale in HH, and she said we should be doing it. It was overlooked at the time that we have no power to order those reports and we have no finances to back it up, so we are relying on the goodwill of the local authorities. As my colleagues have said, I think they have got more used to this recently and perhaps are more co‑operative than they were at first. At first, they would write back and say, “Well, where is the order?” and we do not have an order, because we do not make an order.

The ordinary criminal courts very often have a duty psychiatrist attached who comes in periodically; in our court it is twice a week. From my point of view, it would be good to be able to say to that psychiatrist, “You will be paid to examine these people, as they have come in, for psychiatric difficulties,” but psychiatric difficulties sometimes only become clear after months, and it would be good to have that facility. A self‑harm assessment is another thing that we would like.

As far as the CAFCASS officer is concerned, here you might find a difference in approach between us. I would like to be able to deal with a case from beginning to end and then, having made the decision to extradite, if that is the decision, to ask a CAFCASS officer to go in on not a hypothesis but a factual basis: what is going to happen to these children now? I would like that to be ordered by the court rather than by the parties.

Q138 The Chairman: We must not delay too much, but before we move on, Judge Arbuthnot, when talking about expert witnesses, you said that in the majority of cases there did not seem to be a problem in getting the money to do it. Are there any instances you could point us towards—examples of where things have not gone right in that respect?

Deputy Senior District Judge Arbuthnot: In terms of prison conditions?

The Chairman: Yes and otherwise.

Deputy Senior District Judge Arbuthnot: No.

The Chairman: You are being cautious in your response.

Deputy Senior District Judge Arbuthnot: I am just trying to look back. As I said, there is often a lot of delay around expert witnesses, but in my experience I have not had a real problem. Sometimes there are experts instructed who I think should not have been instructed, but that is a different point.

Senior District Judge Riddle: I have one example, which I do not think I need name, but it involved Greece. We waited for a year for the report. The witness arrived having prepared, on the face of it, a very thorough and full report. The first question in cross‑examination was, “When did you last visit any of these prisons?” to which the answer was, “I have never been in a cell. I have clients in these prisons who tell me”. So, it can be a problem, but I agree with Emma that it is rare.

The Chairman: As you were talking about the timeframe, it occurred to me that in fact the framework directive for category 1 matters says that the whole proceedings should take no more than 60 days. Do you think that is an unrealistic approach and that the reality of all these things is that it is going to take longer in order to secure justice?

Senior District Judge Riddle: I think it is unrealistic in the common law adversarial oral tradition. We are not alone. We might sometimes think we are alone, but Scotland, Northern Ireland and Ireland deal with these matters in a very similar way to us, probably with very similar delays, although they do not have anything like the volume. However, it is clearly incomprehensible to our European colleagues, who are able to deal with it in the timeframe available, because they have written submissions and they keep their advocates for 20 minutes and not more. They say to us, “Our other colleagues in Europe trust us rather more than you do”. This is a recurrent theme. As we do all go to conferences internationally, people ask why the United Kingdom does not have confidence in the legal systems of other countries.

Lord Brown of Eaton‑under‑Heywood: However, you automatically have a three‑month delay between the first hearing with the duty solicitor and the second hearing in order that legal aid can be applied for.

Senior District Judge Riddle: We do now. That is quite recent. We faithfully tried to stick to 21 days until earlier this year when it became absolutely obvious that all we were doing was adjourning for 21 days and then adjourning again.

The Chairman: That is an interesting and helpful point. Let us move on.

Lord Henley: Before I put my questions, could I just say I was very sad to miss the visit to your court in July for unavoidable reasons, but I hope I can take up your offer at some future date to come round. Perhaps we can fix that up on a later occasion.

Senior District Judge Riddle: Certainly.

Q139 Lord Henley: I was going to ask about the right of appeal and whether the removal of that automatic right to appeal has either removed an important safeguard against wrongful extradition or provided a filter to filter out the hopeless cases where an appeal is merely going to be used to seek further delay.

District Judge Zani: It is difficult, because the concept behind a filtering system is something that we would applaud. In our experience, there are people who, to put it bluntly, would prefer to spend their time in a British prison than in their local prison, so they will use whatever avenue of appeal there is, however unmeritorious, not only to slow matters down before us but also through the appeal process. I would anticipate that the filtering system would preclude some of these hopeless appeals getting past first base. Time will tell as to really whether that will be the case or not. I have my reservations for those people who are determined to just try whatever they can to stay here, because of course if they are on remand every day spent in a UK prison is one day fewer that they have to spend serving the sentence abroad. If they have their family here it is easier for visits, it is cheaper and they have built their life here, and they might still hope against hope that the appeal might succeed. So a filtering system is important, but how it will work in practice I am not sure.

Lord Henley: It is too early to tell.

District Judge Zani: I think it is, yes.

Deputy Senior District Judge Arbuthnot: It is not in force yet.

Senior District Judge Riddle: It was supposed to come in at the beginning of this month, but we are told that it is not in yet.

Deputy Senior District Judge Arbuthnot: We could be wrong.

Lord Henley: On legal aid, if it were no longer means-tested and if there was confidence that representation at first instance was specialist and good and all that, again would that affect concerns about the leave-to-appeal provisions and do you think that would lessen them?

District Judge Zani: I would be very confident that if our duty solicitors or our solicitors or counsel instructed thought that there was an arguable point they would not abandon the requested person. They would give appropriate advice and they would help settle grounds whether or not the legal aid was in place. I am very confident that they would act very professionally. It really is when they sit back and say, “I really do not think this can be taken any further,” that the person is on his or her own to try to progress matters.

Q140 Lord Empey: Could I echo the words of our Chairman about the visit? I thought it was extremely instructive and it brought the whole work of the Committee to life, I think, for those of us who went. What some of the hapless defendants felt when some of us appeared on the bench like Hanging Judge Jeffreys I do not know, but it was very instructive.

Could I take you back to the written evidence where you say, “A more imaginative and more productive approach than legislative change is needed to increase mutual international co‑operation by more extensive use of modern technology”. Could you elaborate on this and what such an approach would be?

Senior District Judge Riddle: This really comes from the Scott Baker review. One of the concerns that Lord Justice Scott Baker recognised was the long period of time in pre‑trial detention in a foreign country. For example, we extradite; the process in country X then starts and may take 18 months to come to trial. There are one or two celebrated cases where it always seemed obvious to people here that the case would result in an acquittal. In the meantime, you have someone in a foreign country, possibly in custody, waiting while the case is prepared. That can be in Europe; it could be in the United States. Really, I am just drawing it to everybody’s attention that we have the technology to liaise with those courts by way of video link or, indeed, by way of Skype. Witnesses give evidence to us, as they did from South Africa, by way of video link. I did mention that Signor Berlusconi was in my court for some six days while witnesses from this country gave evidence. It can be done with countries right across the globe, so we could; we have the technology if one wanted it. That is not a question for us, but we have the technology to say this case in country X can be case managed right up until the stage where the case is about to begin next week, and it is at that point that we extradite.

The Chairman: Is this a legal problem or, essentially, a technical, administrative problem?

Senior District Judge Riddle: And possibly a means problem. The technology is there. Whether other countries are able to do this, I do not know. You would think that they would and they could.

Lord Empey: To follow up on that, we are talking about trusting other countries’ legal systems. Is there a sense that they might feel they are being second‑guessed or a judgment is being made about their own systems? Would there be almost political issues involving that as well?

Senior District Judge Riddle: There might be hurt feelings, I suppose, especially if this is something we did with country X but not with country Y. There would be real political problems if we differentiated between British citizens and non‑British citizens here, I think.

The Chairman: Some of the evidence we have had suggests that were this country to have decided to opt back in to the full package of justice and home affairs provisions it might have helped the administration of justice in the widest sense. It would be less necessary, for example, to extradite people, and there are other legal mechanisms that may not now be available to this country. Do any of you have any views about that?

Senior District Judge Riddle: No.

The Chairman: What about from the perspective of ensuring justice and the proper workings of the system?

Senior District Judge Riddle: I am afraid your thinking is ahead of ours on that.

Lord Brown of Eaton‑under‑Heywood: Thinking about the European Supervision Order and the European Investigation Order, do they require opting back in to those specific things or how do those work?

Senior District Judge Riddle: Again, I simply do not know, I am sorry.

Q141 Lord Rowlands: A lot of the evidence shows that there is a special problem with the Polish situation. Have you been able to talk to the Polish authorities? Do you discuss these problems with them and see if there are ways around the problem?

Senior District Judge Riddle: We do discuss it with our Polish colleagues. The Polish judges come here and some of our colleagues have been to Poland and discussed it with them, and it has been discussed at a much higher level than the first instance judges at Westminster. I think the reality is—this is what they are quite happy to say to us—that it works rather well from their point of view, and if some of their citizens end up serving their custodial sentences in our facilities, that is not necessarily something they are concerned about.

District Judge Zani: If I can give you a situation, some time ago there was a delegation of Polish judges who came and sat at the back of the court. I had a case called up and the defendant was represented and his lawyer said that there were certain challenges, one of which was to the format of the European Arrest Warrant prepared by the Polish judge. So, I said, “The case can go over and enquiries can be made,” at which point this gentleman stood up at the back and said, “I am the judge who issued the warrant”. So, they made progress on the day. They had a little chat between them.

Lord Rowlands: There is quite a serious issue of numbers, is there not? We heard evidence last week that in Scotland 90% are Polish cases.

Senior District Judge Riddle: It is fewer than that here; it is about 700 of our 2,100. I do not mean this as a criticism of our Polish colleagues, because it is not, but they are very generous in suspending sentences. They will very often suspend sentences that in this country you would expect someone to start serving immediately, and quite often over a period of time. You can and do get a position where when that sentence is breached, either by failing to comply with supervision or by committing another possibly quite minor offence, many years have passed. That is what feels sometimes unfair—that someone is going back for something they did 10 years ago when they were very young and they now have a family, but that is the way their system works.

The Chairman: Is it the case that if you leave Poland a suspended sentence is triggered automatically?

Senior District Judge Riddle: Not quite, but you have to almost invariably keep in touch with your probation officer.

Deputy Senior District Judge Arbuthnot: You have to provide your address as well. If you provide your address to the probation officer and keep in touch, you are not in breach. Often, they do not give a forwarding address.

Lord Rowlands: The case I heard when I was at the court was that of a young Pole who had breached his probation conditions by not apparently speaking to probation on the phone for one month or so. In fact, I would be intrigued to know what happened to him, if you can send me a note to follow up; it was court six.

Senior District Judge Riddle: Court six, Judge Arbuthnot.

Deputy Senior District Judge Arbuthnot: Court six.

Lord Brown of Eaton‑under‑Heywood: Is it right to say that in those particular cases—and, not untypically, it might not have been a very serious offence in first place—the proportionality defence does not apply because it is a conviction and not an accusation case?

Senior District Judge Riddle: That is absolutely right, of course, and the other thing is in extradition cases we do not know the history of the particular person. It might seem comparatively minor to us and might not justify a custodial sentence until you look at the previous conviction. The same would apply here, of course. We may well impose a short‑ish custodial sentence on someone for their 40th offence. We do not get that information.

Lord Jones: Lord Empey mentioned how helpful it was to visit your courts in July and I would like to put on record that I found it extremely helpful. I sat alongside Judge Coleman and I was astounded at how everyone in the court tried very hard to help, in this case, several Polish people who were before the judge. The centrality of the interpreter, it appeared to me, on that day was very strong, but the impression was the court always sought to help the citizen before it.

Senior District Judge Riddle: I am glad you had that impression, thank you. We will pass it on to Judge Coleman.

Q142 Baroness Wilcox: I, like Lord Henley, was unable to make the visit with everyone else and I, too, would be very grateful to have the opportunity to come at some time. Maybe you could take us both. Thank you very much.

I am going to ask question eight. This is about the EAW. What would be the consequences of not opting back in to the EAW? It has been suggested that the UK could revert to its previous extradition arrangements with Part 1 countries. How practical would this be in reality and would there be costs arising from the change?

Senior District Judge Riddle: You will understand that what we say will be fairly limited, but I have mentioned the ingenuity of the English extradition lawyers. Every change to the law is properly tested, and that proper testing goes through not just to the Divisional Court and the High Court but often, on important points, up to the Supreme Court. I think extradition law has travelled to the Supreme Court, and the House of Lords before it, since 2003, probably more than any other branch of the law, and that has been because there have been changes. If we were to opt back or have treaties with countries in identical terms to those that currently operate with the EAW so that the wording was the same, it might be that there would be fewer challenges. However, and I rejoice in this—I think it is a good thing—I predict that any change will be challenged right the way through. Those challenges, it is not often appreciated, bring the work of the first instance courts potentially to a halt, because lawyers will come in and say, “This exact point is being tested,” and put it on hold, so we can get backlogs. I think that is about as far as I ought to take it.

The Chairman: Can I just follow up by asking whether, in approaching your work, as I hope and believe you do, from the perspective of trying to administer justice, you think the changes that we have seen in recent years from the introduction of the EAW through to now have made the operation of the system of extradition more just than it was previously?

Senior District Judge Riddle: It really flows from the previous answer, which is that it takes time for a system to settle down. Common law is remarkably robust and from the concerns that there were some time ago about proportionality—and this is no thanks to the first instance judges, I have to say—eventually a proportionality test was introduced effectively using Article 8. So, where there are injustices and they are seen, solutions can be found. As I say, it is a robust system and one in which I think, if it is unchanged, fewer and fewer miscarriages will occur.

Lord Hussain: Lord Chairman, I do not have a question, but a couple of apologies to make. First of all, for being late due to public transport problems. The second apology is for not being able to attend the visit to the courts in July, along with one or two of my colleagues, but I will be happy if there is another opportunity to visit the courts.

Q143 Lord Rowlands: On question nine, Judge Zani, your experience spans both pre and post the EAW. How do you compare the two?

District Judge Zani: They are so, dare I say, totally different. When I was in practice as a lawyer, I had that sort of mindset. As a practising lawyer under the old system, I have to say I had full confidence in the judges who were administering the law as it then was, and I have taken that with me, I hope, to now sitting in a judicial capacity. There are strengths and weaknesses, obviously, in both cases, but they were so entirely different to prepare and to have. However, if I look at the judges who I used to appear in front of or briefed counsel, both in what was then Bow Street and in the High Court, I was enormously impressed by their interpretation of the law, which I have to say was very fair. As to whether Mr X, who I am extraditing today, would have been extradited 15 years ago in a similar situation, I find it difficult, almost impossible, to give that comparison.

Lord Rowlands: Rather intriguingly, in your written evidence you suggest it is an appropriate time to investigate independently what has happened to those who have been extradited under the Extradition Act. Can you elaborate on what you think the scope and purpose of such an investigation could be?

Senior District Judge Riddle: Yes. This comes from comments and criticisms—I must say not raised in court—one sees raised outside court, particularly with the alleged imbalance between the extradition treaty with the United States and the United Kingdom. You are aware that the verbal test is different, but Lord Justice Scott Baker concluded that in fact the practical test was the same. There are other problems as well. We are often told that people will be sent to other countries with appalling conditions, appalling circumstances and pre‑trial detention as well. Enough people have been extradited, shall we say, to the United States over the last 10 years for it to be perfectly possible, it seems to me, to see whether any of those people were extradited when it turns out there was no evidence or no sufficient evidence against them. I think that, in its own right, is an important matter, because it continues to be raised and continues to be a concern for some people.

It would also be some yardstick for us. If we are extraditing people and it turns out that an injustice has been done, I think we would like to know. Much of what we do is predictive. We are imagining, if you like, what the prison circumstances are going to be in country Y in 10 years’ time. The best evidence for prediction is what has happened in the past. I think, obviously, we would know very quickly if we had extradited someone to the United States and they had been executed, and we would not then extradite there again.

Therefore, it is a twofold thing: is the empirical evidence there to show that the treaty is not balanced and is the empirical evidence there to show that people are being treated unfairly when they are extradited?

Lord Rowlands: Would this investigation cover the issue of assurances? We have taken a lot of evidence on assurances and I wonder if you have any views on assurances.

Deputy Senior District Judge Arbuthnot: I certainly would like to know if the assurances are binding the issuing country.

The Chairman: Do you have any idea as to how you set about doing it? Is this a job for the Ministry of Justice?

Deputy Senior District Judge Arbuthnot: The embassy? I am not sure.

The Chairman: The Foreign Office? This is one of the slippery aspects of this, because you are not the only people who have raised this entirely sensible proposition. The difficulty, it seems, is how you set up a system that can get accurate, impartial responses and then knows how to synthesise it properly for the benefit of us here.

District Judge Zani: I suspect that if we are being told Mr or Mrs X will go to prison Y and it later transpires that he or she did not, and you can find that out through them notifying you, their lawyer notifying you or whatever, then that, I suspect, is something that is fairly easy to look out for.

The Chairman: It is a good starting point, but that is a small piece of a big jigsaw. Do you think this is a job for the Government, to put it crudely?

Senior District Judge Riddle: I wonder whether, strange though it may sound, the Home Office might be prepared to do this. Cost is always a factor, is it not? We are spending a large amount of money investigating on an individual basis whether prison conditions are appropriate. In an adversarial system that means that we decide it is in France for prisoner A and then that is challenged again further along the line. If there were Home Office reports, for example, that had looked at prison conditions in France that we could rely on, then it would, to some extent, both shorten and, I suspect, improve the process. If, at the same time, as Judge Arbuthnot suggests, our local consulate services were able to enquire into the fate of those who had been extradited, you would think it might be part of their responsibilities, but I do not really know.

The Chairman: Presumably, this would be a two‑way street and we would have to afford the same access to other countries.

Senior District Judge Riddle: For far fewer people.

Lord Rowlands: How much do you depend upon assurances in making your decision?

Senior District Judge Riddle: This is a very big legal topic at the moment. It is being litigated currently and we will be getting, I think, clear advice from the Divisional Court; they consider it in November.

Lord Rowlands: Is there any particular case involved?

Senior District Judge Riddle: I think there are three linked cases.

Deputy Senior District Judge Arbuthnot: It is a particular country, is it not?

Senior District Judge Riddle: It is a particular country. This is something on which we do have different views, but I do not think we are going to express them.

Q144 Lord Brown of Eaton‑under‑Heywood: Investigating the implementation of assurances is one thing and we have been discussing that. I confess that I am rather more troubled about the suggestion of having an investigation into whether people were correctly convicted on extradition, as I understood you to say, if they go back to the States. Am I being cynical in suggesting that most of them in fact will have pleaded guilty under plea bargaining and they will all say they did that because of the plea bargaining and they were not guilty and there was not the evidence? How on earth is any investigation going to carry that usefully any further?

Senior District Judge Riddle: It was not, Lord Brown, so much that I was looking at the conviction as what is being said at the moment is that, because of the imbalance in the treaty, we are extraditing people to the United States on the flimsiest of evidence—on reasonable suspicion. That is the test here. Whereas it is said—and Lord Justice Scott Baker does not agree with this—that the test for extradition from the United States to here is different and weightier. I agree with you. We cannot look at the safety of convictions or even of pleas, but we can look at—and I think it is reasonably easy to find out—whether there was evidence, perhaps strong evidence, at the American end. So, you could go to the lawyer, if the lawyer would help you, and say, “What evidence did the United States have against this particular individual?” If it was flimsy, we would know. If it was strong, then the whole argument about imbalance becomes an academic one.

Lord Brown of Eaton‑under Heywood: I do not want to argue with you, but I thought that in order to get the extradition in the first place they give us, in effect, a summary of the evidence.

Senior District Judge Riddle: The Americans do, but that is not what the debate has suggested. The Americans are very good at providing us with evidence, but you will still hear—or perhaps you do not hear—the argument that the treaty is imbalanced and we are extraditing people on no evidence.

Lord Rowlands: Therefore, this investigation would really confine itself to the US‑UK arrangement. You would not broaden it to include the European Arrest Warrant.

Senior District Judge Riddle: If anyone could be persuaded to pay for it, I think the broader it was, the happier we would be.

The Chairman: I think that worldly note is probably a good moment to draw it to a conclusion. We have already overstepped the time you kindly said you would come to talk to us for. It has been very helpful. You have raised a number of points that are going to be useful to us in our thinking, so can I individually and collectively say to you thank you very much indeed for coming?

Senior District Judge Riddle: Thank you very much. We will look forward to welcoming those of you who want to come.

Examination of Witnesses

Hugh Barrett, Director of Legal Aid Commissioning and Strategy, Ministry of Justice and Hilda Massey, Deputy Director Legal Aid Policy, Ministry of Justice

Q145 The Chairman: You have both come from the legal aid section of the Ministry of Justice. Hugh Barrett, you are Director of Legal Aid Commissioning and Strategy and, Hilda Massey, you are Deputy Director of Legal Aid Policy. You have kindly sent us brief CVs, so we know about your background in the Department. First of all, could you just tell us who you are for the sake of the record, and then if you want to make an opening statement, either one or both of you, please feel free. In responding to questions, please feel free, either of you, to take whichever seems the most suited.

Hugh Barrett: I am Hugh Barrett. I am Director of the Legal Aid Agency and I have been working in the Legal Aid Agency and its predecessor organisation, the Legal Services Commission, for six years.

Hilda Massey: I am Hilda Massey. I work in Legal Aid Policy as the Deputy Director. I joined the Ministry of Justice from the Department for Work and Pensions in September this year.

The Chairman: Do you want to make any kind of opening statement?

Hugh Barrett: Yes, very briefly. We had the opportunity of hearing Judge Riddle and his colleagues’ evidence and I was pleased to hear he was commenting on the work that the Legal Aid Agency has done with him and his colleagues to improve the administration of the legal aid scheme. However, there was one particular issue that I thought it would be helpful to clarify, which is around the evidence requirements for those detained in custody, because there was a discussion about potential delays to granting of legal aid causing increased levels of incarceration. For individuals who are remanded in custody, which I think from his evidence was roughly one‑third of cases, even for those who are employed and self‑employed, any requirement to provide supporting evidence is waived [1]. In other words, the individual can self‑certify that the facts of the matter are as he or she presents them. Therefore, collecting evidence, which obviously is difficult for somebody who is remanded in custody, is not an issue in those one‑third of cases.

The Chairman: I am just trying to look at it from your point of view. If they self‑certify and have no money––

Hugh Barrett: If they self‑certify they have no money—

The Chairman: No—if they self‑certify they have money when they have no money.

Hugh Barrett: Ah. Well, then they would not get legal aid and then they would obviously be in the situation where they would be self‑represented.

The Chairman: Right. Do you want to say anything?

Hilda Massey: No, thank you.

Q146 The Chairman: Can I start off with the same question that we put to the previous panel of witnesses. Do you see any evidence of significant problems of people receiving poor legal advice, which is a slightly different thing from legal aid? In particular, do you think that the duty solicitors’ rota is up to standard and gives decent advice in the context that it is being asked for? Secondly, bearing in mind this is a specialist niche area, do you think that the process of self‑accreditation for solicitors joining the duty rota is appropriate? Would you like to see some sort of training scheme introduced? Finally, do you see there is inequality of arms between the prosecution and the defence in this area or are you, in fact, reasonably satisfied it is a fair contest?

Hugh Barrett: If I may, I will lead off on responding to that. I would really very much defer to the view expressed by the members of the judiciary who were in front of you just now, which is that they felt that there was a high calibre of representation both from solicitors and barristers. That is the same evidence that we have, which is obviously, from our perspective, what we would expect to see.

In terms of the accreditation, in some areas of law we do have what was referred to earlier as a ticketing system. In other words, in order to be publicly funded you need to have passed a scheme that typically, but not always, is administered by the Law Society of England and Wales. For example, in family cases, in mental health and in some other asylum cases, in order to get public funding for those cases you do need to be accredited. To be honest, I am not completely convinced that that is something that we would want to do in this area, simply because of an issue of cost. Putting in place a ticketing system, mandatory training, examination and potentially an appeal for people who fail will be a costly process, and given that at the moment, certainly from the evidence that I have heard and seen, there is not a quality problem, is it worth investing in those sorts of schemes?

The Chairman: Can you give us an example of an area or two where you do this?

Hugh Barrett: In immigration cases, for example, we insist that practitioners go through an accreditation scheme. In that instance, it is administered by the Law Society. That was a result of widespread concern a number of years ago about the poor quality of advice being given to immigration clients, and we have that scheme in place to try to rectify that problem. As I say, what appears to be the case in this instance is that there is not a fundamental problem and therefore, in these financially constrained times, the cost of funding that, which would probably fall in one way or the other to the taxpayer, is something that we would have to weigh in the balance.

Q147 Lord Brown of Eaton‑under‑Heywood: A simple question: how many defendants are funded by legal aid at present? We have been told it is 95% of those who stand to be extradited—who are sought for extradition. Do we need to know precise numbers?

Hugh Barrett: I can give you the precise figures for the last financial year. Last year, there were 1,106 representation orders. There were 1,161 people who applied for criminal legal aid in the last financial year, and that represents the 95% figure that was quoted earlier.

Lord Brown of Eaton‑under‑Heywood: I do not think it is within my scope to ask, on a cost‑benefit analysis, whether anybody has updated the September 2011 review, but have they?

Hilda Massey: The cost‑benefit analysis has not been updated since it was undertaken in 2011.

Lord Brown of Eaton‑under‑Heywood: You heard the district judges say that they build in an automatic three‑month delay between the first and substantive hearings in order to accommodate the whole question of gaining legal aid, and that takes them way beyond their supposed 60‑day limit and so forth. Are these not considerations that one should have in mind in deciding whether automatically that people should get representation?

Hilda Massey: Ministers have considered, and considered before the response to the Scott Baker report, whether or not legal aid ought to be paid automatically in these cases. On balance, the evidence in relation specifically to the analysis is quite a difficult piece of analysis to do. The previous witnesses talked about how difficult it is to weigh up what the costs are in these cases. Therefore, the analysis that was done was based on a series of assumptions. One of the key things to think about when looking at that analysis, particularly in our current cash‑constrained environment, is whether the cost to the legal aid scheme of taking away the means test in these cases is a real cash cost to the Government. Some of the potential savings that might arise as a result of doing that through, potentially, cases going through quicker are much more difficult to realise in reality.

Lord Brown of Eaton‑under‑Heywood: Less custody is, no doubt, taken into account.

Hilda Massey: It is taken into account, but if we use that as an example, that is clearly one of the more expensive elements of the potential saving that you might make. However, when you look at the numbers of people who are in prison in this country at the moment, we have 86,000 people in prison, 12,000 of whom are on remand. When you factor in the amount of spaces that you would save if these cases were going through quicker when you are planning your number of prison spaces that you need, those numbers are so small that the cash saving you would generate from their not being in prison is very difficult to quantify. Essentially, it is not big enough to make a difference in terms of your planning for prison places, for example. There are obviously some minor savings, but most of the savings related to that would not be cashable to the Government, whereas the cost of removing the means test would be.

The Chairman: Is it not the case that we have overcrowding in prisons and you would have thought that any mechanism that could permit people who are not going to necessarily be a danger to the rest of society to remain in society at large is something that is in the public interest to pursue?

Hilda Massey: What the Government is trying to do here is balance the need of the taxpayer against making sure that these cases go through as quickly as possible. I think Ministers have made the judgment call that, in this particular instance, if the means test were to be removed, then, potentially, that opens up a question of consistency with the rest of the criminal legal aid system. So, if you make an exception in this instance, then why would you not make an exception in other difficult cases?

The Chairman: That is a slightly different argument from the one that is contained in the cost‑benefit analysis. It is rather like saying if somebody has bad prison conditions, everybody should have bad prison conditions. I am not sure it is a very attractive argument.

Hilda Massey: No. I take your point, but the point that Ministers have made is that the cost‑benefit analysis is inconclusive in terms of whether or not there are savings to be made when you weigh up both sides of the argument. Certainly it is easier to see what the costs are to Government than how you might realise those savings, and when you are considering legal aid in the round and the context of the fiscal environment that we are working in currently, Ministers take the view that the cost‑benefit analysis is not sufficiently proven to strongly support making an exception in this case.

Lord Rowlands: How many of the 12,000 in remand are extradition cases?

Hilda Massey: I am afraid I do not have that figure off the top of my head.

Lord Rowlands: If we had that figure, we could then work out how much it is costing.

Hilda Massey: We can certainly write to you on that point.

The Chairman: Lord Mackay, we are starting to trespass on your territory here.

Lord Mackay of Drumadoon: Well, I think you have addressed all the questions. Nevertheless I have one or two more. You talked about an assessment being done in 2011. That would result in a written report.

Hilda Massey: There was a written report appended to Scott Baker’s report.

Lord Mackay of Drumadoon: Yes. I just want to get the chronology of events. There was a report and that was in the big Scott Baker report—an extra. Has there been any subsequent written report?

Hilda Massey: No.

Lord Mackay of Drumadoon: On a number of occasions both of you have referred to Ministers making a judgment call and Ministers doing that, so the matter has been considered by Ministers, but nothing in public has been made in the form of a further report.

Hilda Massey: No, not in the form of a further report. We provided input into the Home Office response to the Scott Baker report, which confirmed that the Government did not believe that the cost‑benefit analysis was such as to change their view.

The Chairman: Are there any plans to review this work?

Hilda Massey: Not at this point in time, no.

The Chairman: It is a high‑level report, is it not?

Hilda Massey: It is a high‑level report, yes.

Q148 Lord Henley: I think much of what I wanted to ask about was dealt with in your opening remarks, but I want just to make sure I have it right in my head. Those in custody can self‑certify and that is that.

Hugh Barrett: Correct.

Lord Henley: They assert that their income is whatever and the Legal Aid Agency, for which you have responsibility, will accept that.

Hugh Barrett: We will accept that self‑certification. As the Chairman pointed out, that may not mean that they get legal aid, because they may self‑certify that they have an income level above the means threshold.

Lord Henley: However, they themselves have no problem about the documentation that they would need to find. A lot of people who are not in custody are going to have those problems, because if they are fruit pickers or whatever, they might not have it.

Hugh Barrett: Yes. That is absolutely correct.

Lord Henley: Right. Well, I think that is quite clear.

Q149 Lord Rowlands: I think with this question too we have, in some ways, almost heard the answer. Why did you reject the Scott Baker recommendation?

Hilda Massey: I think there are three things, basically, that were taken into account when the decision was made. First, there is the general principle that the Government believes that where people can afford to do so they ought to make a contribution towards the costs. Means testing is the mechanism by which that is introduced, so there is a general principle there. We are in a fiscally constrained environment and we need to bear down on the costs of legal aid as much as possible, so it is difficult to see, in those circumstances, why an exception would be made in this particular instance. The risk, if an exception is made, is there will be a question of both consistency with the rest of the legal aid system and also a question of whether or not that then opens the door to claims being made that exceptions should be made elsewhere. Not only that; some very difficult decisions have had to be made on where legal aid is provided in the broader legal aid scheme, particularly in terms of things like reducing the scope of civil legal aid.

Lord Rowlands: However, you have just said that 95% of the cases are successful. Is that true of the other sectors?

Hilda Massey: Yes, it is. The overall success rate in criminal legal aid is something in the region of 94%. It was briefly referred to when the previous witnesses gave evidence that there is also an element of what we call “suppressed demand”, which is where people have not claimed legal aid because they have realised they will not get it, because of the level of their income. Therefore, if you remove the means test, you are likely not only to open it up to the 5% or 6% of people who fail but also widen the door to those people who have not previously claimed.

Lord Rowlands: In that document of September 2011, I must say the figures are not easy to understand. The potential savings are anything between £250,000 and £750,000. That does not sound like a cost‑benefit analysis to me.

Hilda Massey: It gets back to what the previous witnesses were saying. It is very difficult to estimate the costs in this case, so they have had to give a range of potential costs depending on various factors that might come into play, and that is why there is a wide range in terms of where the analysis came out.

Lord Rowlands: On the figures, first of all, the potential costs you have are £450,000 and the savings are somewhere between £250,000 and £750,000.

Hilda Massey: Yes.

Lord Rowlands: You have not been able to refine those figures.

Hilda Massey: Those figures will have changed because, for example, when the potential savings were calculated it was estimated at the time that it would cost £40,000 a year to keep somebody in prison on remand. We know now those figures have substantially reduced and are somewhere now in the region of £28,000.

Lord Rowlands: £28,000 a year per prisoner.

Hilda Massey: Yes. Similarly, the potential increase in costs from the removal of the means test may also have reduced because the average amount spent has reduced, so there are counterbalancing arguments on both sides of that equation. However, fundamentally, it still brings us back to the point that a lot of the potential savings in the system are not realisable.

Lord Rowlands: Yet we heard from the previous witnesses, people who are at the front line, conducting the cases and managing the system, that they believe on balance there would be a saving if the means test was abolished. What weight do you give to such practical experience on the ground?

Hilda Massey: There are undoubtedly savings that would be made. For example, there are cash savings that might be made by not having to pay for an interpreter at an additional hearing. There are identifiable savings, but where the majority of the costs fall are in relation to expenses such as keeping somebody in prison, where it is much more difficult to realise those savings.

Lord Rowlands: Is it easy to calculate? If you have the number of people on remand on extradition cases and you have worked out a percentage of the time and £28,000 or whatever it is, you must be able to come up with a figure.

Hilda Massey: Of those, not all will be on remand or in receipt of legal aid; some of them will have been granted legal aid. It is not always clear why delays take place, so attributing the amount of time that somebody spends on remand, for example, directly to their legal aid application is quite difficult, because there will be a number of different factors involved there. Therefore, we have had to make some very broad estimates in relation to that.

Lord Rowlands: Given the burden of the evidence we have received, though, do you not think it is at least worth revisiting rather than just saying you have not done anything since September 2011?

Hilda Massey: I think Ministers have taken the view that there is not a sufficiently weighted case to remove the means test in these instances and, in fact, some of the work that the Legal Aid Agency has done to drive out greater efficiency in the process is a better way forward than creating precedent by removing the means test. There is a lot of work that the Legal Aid Agency has been doing to make the process more efficient, some of which the previous witnesses referred to, but also there are future changes coming in relation to things like e‑forms, which should help drive further efficiencies and be a more effective way of dealing with this issue.

Lord Rowlands: Perhaps, Mr Barrett, you could tell us about that.

Hugh Barrett: As you will recall, when the previous witnesses were talking about the introduction of e‑forms they were hoping––indeed, we hope––that that will smooth out the administration of legal aid application processes. That will happen in November, next month. So far, we are about halfway through introducing these e‑forms across England and Wales and what we are seeing is, roughly, a reduction of 50% in the proportion of these forms that, to use a phrase, ping‑pong back and forth between the Legal Aid Agency and the solicitors firms who are applying for legal aid. We would expect that to happen in these cases as well. As I say, that is coming in November, and so by the beginning of December we should see that still further improving the situation.

Q150 Lord Henley: Continuing on this point, I accept it is very difficult indeed to do a cost‑benefit analysis and I accept that the last one you did was in September 2011. It is obviously over‑simplistic to think that just by reducing one prisoner you reduce your costs by one times one prisoner. All I want really, I think, is an assurance that, even if there has not been an update of that cost‑benefit analysis and even though we know certain things have changed since then—you have just asserted that the average cost of each prisoner has come down from £40,000 to about £28,000—Ministers have actively considered this over the last year or so and keep it under review, and that this is at ministerial as well as at official level.

Hilda Massey: Indeed, yes [2].

Lord Empey: We are dancing on the head of a pin to some extent, because is it not the case that, with the vast increase in the number of prisoners, there is so much capacity to reduce before it would hit any reasonable costs, such as prison officer numbers and all that sort of thing? Really, you would have to reduce the number of prisoners substantially before you make much of a difference on costs. Is it not the case more people in prison drives down the cost? If you have, say, twice the number of people in a prison, it does not mean you have twice the number of prison officers. The only extra cost is really the food.

Hilda Massey: Yes, I am sure that is right. I do not have any figures relating to that, I am afraid.

Lord Hussain: As we have heard, the majority of the cases are from Poland. Of the majority of those Polish cases, and the rest of the 5%, how many will need interpretation or translation?

Hilda Massey: I am afraid I do not have those figures.

Hugh Barrett: I do not have the figures for how many of them need interpretation, sorry.

Lord Hussain: Either Polish or non‑Polish.

Hugh Barrett: No, sorry, I do not have those figures. I do not think we collect them. Applications for expert witnesses would be something that we would have and obviously the raw number of individuals who apply for and are granted legal aid.

Lord Brown of Eaton‑under‑Heywood: I absolutely understand the force of your point about general principle, consistency and the effect if you removed the means test and then there is a hidden number who will apply in addition and all the rest of it. However, is extradition not a special case, not least because there is internationally an obligation to meet or to attempt to meet the 60‑day target? We have been told now that you have an automatic three‑month delay built in in order to accommodate legal aid. Does that not make it a special case?

Hilda Massey: I understand what you are saying, but I would go back to the point that I made previously. Rather than creating a precedent, effectively, by making extradition a special case, we think the right solution is to make the process work more efficiently and more effectively, and we believe we are putting measures in place to help that happen.

Lord Brown of Eaton‑under‑Heywood: We have been told that until this year the courts used to have to accommodate all the various adjournments, and that is why they have now changed to this automatic three‑month delay. That is a new scenario and, presumably, it would justify a new cost‑benefit analysis because you now know more certainly how long people are going to remain in custody?

Hugh Barrett: If I might come in, I think there is force in your argument, but we need to be careful that we do not see, if I can use this phrase, solving the legal aid application problem as meaning that automatically the process will proceed at the speed you indicate. We heard, once again, in earlier evidence about the need for expert witnesses and that they, typically, if they have to go and visit the country in question, take many months.

Lord Brown of Eaton‑under‑Heywood: Undoubtedly in individual cases, but that is not the great demand.

Hugh Barrett: I am sure that is right, but I am just trying to make the point that we should not see reducing the period for legal aid as automatically going to mean that you are going to meet the overall timescale. That is the point I was trying to make.

The Chairman: Lady Hamwee, you were anxious to talk about expert witnesses.

Q151 Baroness Hamwee: Thank you, yes. First of all, so we understand how an application is dealt with, how do you assess an application and do you put a limit on the amount that can be funded? If you can just give us a quick overview of how you respond.

Hugh Barrett: Yes. Solicitors firms will make an application to us for permission to engage an expert. We will have some rates that are stipulated in regulations that we can pay for the various categories of expert. We will then look at the case that they put and make a judgment as to whether we believe that the rates they are asking for are justifiable, and we turn 90% of those applications around within a two‑week period. We heard earlier about a particular individual case, which I think was Peru, which took longer.

Baroness Hamwee: That is a one‑off.

Hugh Barrett: Exactly, so there will be cases that do take longer than the two‑week period, but essentially that is the process. If the solicitor feels that we have been unreasonable in our judgment to grant or not to grant the permission to use that particular expert at that rate, there is an appeals process where we go to an independent body of solicitors and barristers to make a judgment on that judgment. That, in essence, is the process that we apply.

Baroness Hamwee: As well as the rates—I remember now that I have seen regulations with the rates in—do you stipulate a number of days, because they are day rates, are they not?

Hugh Barrett: Yes, they are indeed. In fact, I think most of them are hourly rates. Normally we would ask for an indication of how many hours or days the work was going to take, so we can make a judgment as to the total amount of money that is going to be applied in that particular instance. There are no regulations that apply to the number of hours or days that are worked, though, so it is a matter of trust between us and the solicitor that they will endeavour to do that in as expedient a time as possible.

Baroness Hamwee: Obviously, there are experts and experts. We heard from a member of the bar that sometimes people cannot afford the most expert experts, but that is a matter for application as to the speciality or whatever.

Hugh Barrett: Yes, I think that is right.

Baroness Hamwee: Are there limits on what can be funded? You heard Judge Riddle and Judge Arbuthnot talk about their wish to be able to commission more evidence.

Hugh Barrett: At the moment, we would consider things on a case-by-case basis, so if there was an application for funding a particular expert, which would be done by the defence, we would consider it. As we heard earlier, at the moment, local authority reports are commissioned but paid for by the local authority.

Baroness Hamwee: Do you have a response that you feel you can share with us to the suggestion that the court itself should be able to commission reports?

Hilda Massey: I think that would be a matter that we would have to take away and consider.

Baroness Hamwee: Okay. I was giving you that out. Are you aware of cases where legal aid funding has been insufficient? For instance, in terms of prison conditions in foreign countries.

Hugh Barrett: I am not personally aware of them, but this can be a bit of an iterative process. One of our objectives in safeguarding public money is to make sure that we get good value for money. Experts are out to make a reasonable return for the time they invest, and sometimes there is a bit of to‑ing and fro‑ing. Personally, as I say, I am not aware that we have had cases where we have had that problem, but I am sure there is a healthy commercial tension from time to time.

Baroness Hamwee: Yes. Good evidence may mean that the hearing of an application is much shorter, because you get to the point and you get the good evidence. Lord Brown is nodding.

Hugh Barrett: Yes.

Q152 The Chairman: One of the things that has struck me from your evidence is that you have been approaching this very much from the perspective of value for money, saving money, public expenditure. The other side of the coin is of course that the court system is there to ensure justice is done. Do you think there are real conflicts between saving public money and justice in this sector?

Hilda Massey: I understand why you have asked the question. When considering this, you need to consider it in the broad context of legal aid as a whole.

The Chairman: That is the way you are considering it, not me. I am just trying to be clear what you are telling us.

Hilda Massey: I understand what you are saying, but this is an area where some very difficult choices have had to be made in the context of public expenditure. By the nature of why we pay legal aid in the first place, there are some very difficult issues that are being dealt with, where choices have had to be made in terms of reducing public expenditure right across the board, both in criminal and civil legal aid, that have been difficult and that may result in people thinking that exceptions should be made in that particular instance. This is an instance where that argument can be made, but it is not the only instance is what I would say, and I think you do have to consider it in a broader context.

The Chairman: What other areas do you think are analogous to this in your experience of doing your job?

Hilda Massey: Well, first of all, I have to say my personal experience of doing legal aid is fairly limited, only having been in the job for about a month and a half, but I think there are areas. For example, if you look at civil legal aid, we have considerably reduced the scope in recent legislation of where civil legal aid is available.

The Chairman: This is not really civil legal aid, is it?

Hilda Massey: No, I appreciate that. The point I am trying to make is in a very fiscally constrained environment there are difficult choices to be made and, as I said before, in this instance the judgment is that the way to deliver the interests of justice in this case is not to automatically pay legal aid. It is to make sure that the legal aid process is working as effectively as it can do, so we are not creating delays and not conflicting with the interests of justice in that respect.

Q153 The Chairman: If we can go back to what we were hearing earlier from the judges about how they have introduced a three‑month delay, because that appears to be a function of dealing with legal aid, you have responded, as the Department, by introducing the e‑applications and so on. First of all, why, in practice, did it turn out to take so long to get these matters resolved? Is there any light you can throw on that? Secondly, are you looking with confidence to the future when, shortly, the Westminster Magistrates’ Court no longer introduces the three‑month legal aid delay period and just gets on with it because everything works smoothly?

Hugh Barrett: The introduction of electronic forms is not a response to this particular area of law. It is to improve efficiency across the hundreds of thousands of cases that we deal with in the other magistrates’ courts across England and Wales. As I was saying earlier in my evidence, it is roughly halfway through deployment. We are confident that we will be able to turn around 90% of applications for legal aid within two days [3]. Obviously, there will be a number of cases that will take longer. I think once we have this new system in place for Westminster, we will be sitting down, as we have done over the last several years, with Judge Riddle and his colleagues and talking about how it was working and whether that would enable him to make a different decision about how he schedules cases in his court. As I say, I am struggling to see how, given the very small number of cases that are delayed, that is going to drive a three‑month delay for all.

The Chairman: You say the small number of cases that are delayed, but in fact every case appears to be being delayed for three months.

Hugh Barrett: Okay, sorry—every application I should say. Sorry; I used the wrong terminology. Every application is delayed. As you say, the response is to delay all cases by three months. I am struggling to see the link between the two.

The Chairman: Right. There are problems at the heart of what we are looking into that are affected by legal aid but may not be caused in whole or in part by legal aid. What I am trying to do is to disaggregate what is going on to see where the problems might be, because our remit is to look at the law of extradition in the round, not specifically as a judge but to look at the political context. I am just trying to see whether there is anything from your evidence that can help us in coming to conclusions about that. You will have understood, both from reading the newspapers and from hearing some of the questioning, that this is clearly something that is of concern to people. I come back to the fact that I am struggling myself to see what changes to the way legal aid is operated could do for the system as a whole or for certain individuals affected by it, and whether, in fact, you can save public money at the same time.

Hugh Barrett: If we talk about the administration of legal aid, as we heard from Judge Riddle, if we can get to a situation where we can flag to him the exceptional cases that are going to take longer to go through the process—that will take, say, three months to get an application processed—we can treat those as exceptions. For the 98% or whatever it is of cases that are going through within a few days, he can process those on a much faster track than he is at the moment. That is the sort of conversation that we ought to be having with him once we have the new system in place.

The Chairman: That is what I was interested in. Your perspective from here is that that is the direction of travel it is all going in.

Hugh Barrett: It is indeed.

The Chairman: That is what I was interested in finding out.

Lord Rowlands: Basically, you are saying that extradition is not a special case.

Hilda Massey: In the context of legal aid, we do not want to make it an exceptional case.

Hugh Barrett: It is a special case, in some ways, already, because of the duty solicitor scheme that is available in the first instance hearing. Therefore, there has been a recognition that in first instance hearings there is a different provision from what there would be in the normal magistrates’ court; for example, for other matters that are considered in the other magistrates’ courts.

Lord Brown of Eaton‑under‑Heywood: Is it just means-tested? There is not a merits test.

Hugh Barrett: As I understand it, there is a merits test but everybody passes it.

The Chairman: Well, the threat is you are going to be sent abroad.

Hugh Barrett: I am not an expert on this, but my understanding is that that appears to be the thrust of it.

The Chairman: Time is moving on and we have covered, in very general terms, all the topics we told you we were interested in hearing about from you. Is there anything else you would like to say to us about that or more generally where, perhaps, you may think some of the gist of the questioning is not really right, or anything more generally to help us in our inquiry?

Hilda Massey: I do not think so.

Hugh Barrett: I do not think there is anything we would want to add.

The Chairman: Right. Well, I thank you both very much indeed for explaining it to us.

[1] For individuals remanded into custody who fail the means test but subsequently submit a fresh application for change in financial circumstances and/or hardship, supporting evidence is required.

[2] Ministers last considered the cost benefit analysis in October 2012. Whilst officials recognise that some of the cost assumptions have changed, there are currently no plans to actively update or review this work.

[3] The Legal Aid Agency (LAA) will expect to process 95% of completed legal aid applications in straightforward cases within two working days of date of receipt. If the individual's application is more complex (for example, if the individual is self-employed) or if the individual fails the means test and subsequently applies under the hardship provision, the LAA will expect to process 90% of such completed applications within two working days of onward referral to their specialist team.