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Criminal Defence Service (Contribution Orders) Regulations 2009

My Lords, the love fest of yesterday is, I am afraid, over. We on these Benches support the principle that convicted criminals should pay for their defence when they can. However, in the past that has turned out to be a purely theoretical principle. Attempts have been made before to introduce means-testing of the costs of defence, but they failed because the cost of administering these schemes exceeded such benefits as might accrue from recovering the money. Consequently, some years ago, it was decided that it was cheaper to give everyone legal aid rather than to go through this bureaucratic procedure. If, as Mr Vince Cable points out, bankers can avoid their 50 per cent extra tax overnight, so sophisticated criminals will be able to avoid this scheme if they have to pay. It has holes in it. The problem is outlined in the Government’s supplementary impact assessment. Page 1 of the financial profiling of Crown Court defendants sets out the difficulties: ""The Criminal Justice System does not gather any information about the financial or domestic characteristics of Crown Court defendants. The demographic information about defendants that the Criminal Justice System collects is very limited. The best information that we have about defendants is derived from CREST … the computer system that supports the progression of cases through the Crown Court. The system records case level and defendant level information about the proceedings, but the only demographic data that CREST records about each defendant is their age, sex and post code. Other detailed financial and demographic information is not collected, creating an "information gap" … This paper describes how Ministry of Justice Operational Researchers have attempted to fill this "information gap" by imputing a socio-economic profile of Crown Court defendants"." It then identifies the sources. The paper was put for academic peer review. Professor Martin Chalkley of the University of Dundee, says that it is, ""a carefully written and well-explained paper"," and that the overall methodology has been "appropriately chosen and executed", but he has significant problems with the seeking out of alternative data sources and, ""refinements or extensions of the bootstrapping techniques"." I need not explain to the Minister what bootstrapping techniques are. His comments are followed by those of Professor Ian Walker of Lancaster University, on page 40 of the report, who points that the populations are different when you try to match income data from the family resources survey to CREST. He states that, ""defendants are NOT a random sample of the population even controlling for sex, age and postcode … There is a ‘selection’ problem"." He goes on to describe the difficulties there and sets out a whole series of worries about the accuracy of the report. The third academic who looked at the report, Professor Lanot of Keele University, also said that he was not convinced by the bootstrapping procedure. He gives a series of criticisms about the methodology. Where the Government are guessing income levels of defendants and basing their policy decisions on a guess, one would think that it would have been wise to introduce the scheme gradually. However, no pilots for Crown Court means-testing have been carried out. As the Minister said, this new scheme will be rolled out in five courts in January of next year and then to the rest of the country within three months, in April to June 2010. The Government have claimed that the operation of the scheme, ""will be evaluated based on the initial roll-out"." They believe that they will be able to see within three months whether the means-testing is accurate, whether any further rollout is desirable or necessary and whether their guesses are right. This is a guesstimate: the impact assessment has no doubt been done as professionally as possible, but great reservations are expressed about it. What problems arise? First, as the noble Baroness has pointed out, the thresholds used in means-testing are extremely and unacceptably low—a disposable income of £3,398, not simply of the defendant himself but taking into account the income of his partner and any support that he might have from relatives or friends who live in the same household or support it. That is an unacceptably low threshold, which will apply to a large number of people. Then there is the question of the capital involved; £30,000 is the threshold for capital. What the report fails to take into account from a practical point of view is that, if a convicted defendant does have any money, he is likely to have it seized from him under the Proceeds of Crime Act—a matter that we discussed yesterday. If he is assessed at the beginning of the proceedings, just after he has been arrested, what account can possibly be taken in a Crown Court trial if he does not get bail and loses his job and if that causes severe problems to his partner and if, at the end of the day, when the case is completed, any capital that he or she may have is removed through the Proceeds of Crime Act? What consideration has been given to those practical points? My first major point is that it is quite wrong to make the assessment of a person just as he has been arrested. It is wrong practically and in principle. He is presumed to be innocent until he has been proved guilty; at that point, when he has been proved to be guilty, and in the light of the circumstances of that time, as well as those of his partner and his home and whether applications have been made under the Proceeds of Crime Act to take whatever assets he has, it would be sensible to carry out a means test to determine if and whether he should produce any contribution to his defence. There is a further issue in that regard. While the defendant is in prison or on bail, he is subject to all sorts of other pressures that cannot be foreseen by a means test before the trial procedures begin. Unless there is built into the system the possibility of reassessment, which means more cost and more bureaucratic work, he is under considerable difficulty. I turn to other points of concern. The partner whose income is taken into account may have children and those children may suffer as a result of a conviction and any sentence that is passed or any order that is made. The noble Baroness referred to the question of defendants who are unrepresented. The Minister will know from his own experience just how difficult it is for a judge conducting a trial at which the defendant is unrepresented. If he chooses not to incur the expense that would be involved in having legal representation, the trial would be prolonged, made difficult and would cost more. That is a matter that does not appear anywhere in the impact assessment—the cost of implementing a policy that will include the additional costs of court proceedings. So when one sees that the impact assessment claims that it will deliver gross savings of £52.4 million per annum—it is as exact as that—one has to take that figure with a pinch of salt. My second main question is: when will this be reviewed? When will rational consideration be given to the effects of the scheme and to how much money has actually been saved? The initial set-up costs are estimated at £12.2 million and the ongoing costs are at £13.5 million per annum—presumably those can be calculated a bit better—but the gap between the costs of running the scheme and what is recovered may simply be so narrow as to make the whole thing unworkable and unnecessary, as has happened on a previous occasion. Then there is the calculation of debts. It often happens that a defendant has large debts, possibly overdrafts at the bank but much more likely credit card debts, that have to be serviced. The impact assessment has not seriously looked at that, but it says that 40 per cent to 50 per cent of households in the defendant population are likely to be in debt. On one hand you have the bureaucratic costs of running the scheme; on the other, you have the possible additional costs of court proceedings through underrepresentation; thirdly, you have the social costs that arise from the fact that debts will not be paid and partners and children will all be in a difficult position. I hope that the Minister will give us some assurances that, when the scheme goes through, it will be subject to regular monitoring and reports of the results of that monitoring and whether the guesstimates that appear in the impact assessment have proved to be true.