In a recent strongly worded judgment the High Court condemned the current system of means testing in the magistrates’ court.

Two appeals from the City of Westminster Magistrates’ Court were heard together because they raised broadly similar issues relating to the delays arising from the way in which legal assistance is provided in European Arrest Warrant (EAW) cases. On the facts of the appeals, the High Court found that it was right to order the extradition of Mr Stopyra to Poland and also right to order the extradition of Mr Debreceni to Hungary, but had strong words to say about the means testing system.

The court agreed with the earlier comments of District Judge Evans that it was “deeply depressing that any requested person, particularly one remanded in custody, is not able to have the immediate benefit of legal aid. These delays are extremely expensive and until legal aid is granted no work is done on behalf of the requested person and during that time the UK taxpayer has to pay for his accommodation at HMP Wandsworth.”

The court did not accept the MoJ submission that there is no systemic failing in the design or structure of the system for means testing on the following grounds:

i) It is difficult to see how the target of 6 working days for the consideration of the legal aid application is compatible with the 60-day period in Article 17 or fair in the case of a person remanded in custody.

ii) The policy of presuming that a person remanded under an EAW will continue to receive his pay is irrational in extradition cases where the requested person is in custody.

iii) As time is of the essence, it is inexplicable that the necessary forms cannot be filled in and submitted on line.
iv) The system appears to take no account of the overriding requirement that the UK’s system is compatible with its international obligations undertaken under Articles 11.2 and 17.

The court held that: “In the light of our conclusion that the current system is (a) incompatible with the United Kingdom’s obligations and (b) contrary to principles of justice in that it does not result in the decision on legal aid within a proper time frame, it is clear that urgent action must now be taken by the Ministry of Justice.”

The court went on to say that delays occasioned by means testing which are not occasioned by the fault of the requested person or his legal advisers cannot be held against the requested person, and that the effect of the Ministry of Justice’s current system is in practice to ‘stop the clock’ as regards the position of the requested person. The court added that until means testing is complete it is unreasonable to expect the legal adviser to advise. “It is wrong, in principle, to visit that fault on the requested person. We appreciate that until the Ministry of Justice reforms its system for legal aid, this may cause significant delays and increase the work of the Westminster Magistrates’ Court. However, the proper and fair administration of justice leaves the judiciary with no alternative until the present legal aid system is reformed.”

The full text of the judgement can be found at:

http://www.bailii.org/ew/cases/EWHC/Admin/2012/1787.html