Behind bars | Means-tested legal aid in extradition cases under fire

Delays, confusion, rejected app-lication forms, lost documents, requests for documents that have already been sent several times, documents returned because one box has not been ticked in the correct manner, legal aid refused on means because the defendant earns 17 pence more than he should '“ such problems with legal aid in extradition cases are all familiar for practitioners in the ordinary run of the criminal courts, and would not normally trouble the higher echelons of the High Court. But they came into sharper focus in the judgment handed down last Thursday (28 June) in Stopyra v District Court of Lublin [2012] EWHC 1787 (Admin) because of the particular requirements of extradition and cases under the European arrest warrant, and the requirement that extradition cases be dealt with expeditiously.

That time factor is not merely one of the hopeful policy statements that bedevil the criminal justice system, but a specific requirement under article 17 of the European Framework Decision to which the UK must pay homage in interpreting the Extradition Act. Article 17 provides that decisions on whether or not to execute an EAW should be made within 60 days. Obviously there can be extensions and adjournments for good reason in the proper conduct of a case, but the primary aim of the EAW system is speedy return to the requesting state.

There is, as one would expect, also a right to legal assistance and to interpreters for those facing extradition '“ but of course that right is now means tested in line with all other applications for representation in crime. It has been suggested that they should not be '“ a Home Office review in September 2011 led by Sir Scott Baker recommended that the Ministry of Justice urgently consider non-means tested legal aid in extradition. The ministry has a free hand in this '“ they are permitted to means test under domestic legislation, and under the framework decision. When permitted to charge fees, people do tend to charge them '“ and the MoJ is no exception. Their main reason for not following the strong advice given to them was that it would cost money, as well as policy reasons generally. One can see the policy reasons. Imagine the howls from a certain class of newspaper if they dropped means testing: 'Nasty foreign criminals get taxpayers money while the decent British crim has to pay his own way.' That might be worth seeing, but it ain't gonna happen.

System failure

Be that as it may, the judgment was extremely critical of the present system, finding that means testing produces unacceptable delays that were unjust; the system was unworkable in practice within the Extradition Act time limits and the framework decision; and was also inconsistent with overarching principles of fairness and justice in timely decision making.

In Mr Stopyra's case there was an 11-week delay before legal aid was granted. He was particularly unfortunate in that he was working before his arrest and detention. He honestly and accurately set out the figures he had been used to earning when at liberty. The LSC then presumed, as they do, that he was continuing to earn that salary that made him ineligible from the off. He then applied under the hardship review scheme but didn't fill in yet another financial means form, got turned down, and had to start again from the beginning. This presumption that earnings continue even when the defendant is in custody shows an extraordinarily touching faith in civic goodness by the LSC: they must believe that employers are positively sloshing inside with the milk of the human kindness and wish to do all they can to support their troubled staff, whether they are at work ?or not!

The Admin Court is considerably less naive and single this presumption out for particular criticism, as irrational. They also had a go at forms CDS14 and CDS15, which have to be downloaded, printed out and personally signed rather than being filled in electronically. Not user friendly they say '“ echoing the sobs of frustration and rage bursting from all practitioners who ever encounter MoJ or LSC documents.
While the motive power of this judgment may be to hurry up the process of extradition and keep the courts moving, their criticisms are of general application: despite assertions by the LSC that all was well, they found there were systemic failings in the means test which lead to unacceptable delay. Not an earth-shattering conclusion perhaps, but it may cause a tremor or two in the powers that be.