My eighteenth story of injustice relates to the Legal Aid Agency’s much criticised handling of applications for legal aid in criminal cases. As usual, I have used a fictitious name.
Legal aid refused for mentally ill man in possession of a knife
Jason is in his early fifties. He has no previous convictions and is mentally ill.
His solicitor was asked to represent him at the magistrates’ court by a local homelessness unit. Jason came to his office and completed and sent off an application for legal aid two days before the court hearing.
He was charged with being in possession of a knife. This is now regarded both by the Sentencing Guidelines Council and by the Court of Appeal in R v Povey (2008) as an offence for which a custodial sentence for a first offender is very much on the cards.[1]
On the morning of the court hearing the solicitor was informed that Jason’s legal aid application had been refused because it was “not in the interests of justice” to grant him legal aid. He immediately appealed. An appeal is decided within the Legal Aid Agency itself. Even though legal aid had been refused, Jason’s solicitor represented him in court.
On his solicitor’s advice Jason pleaded guilty on his first appearance in order to obtain the maximum discount for an early plea. The magistrates then adjourned the case for two days for a pre-sentence report. Although he was released on bail, Jason was told that all sentencing options were open.
Although his appeal to the Legal Aid Agency was still undecided, his solicitor attended court again two days later , when he persuaded the court to find reasons why it should not apply the sentencing guidelines and to grant Jason a conditional discharge.
Two days later the solicitor heard that the Legal Aid Agency had allowed Jason’s appeal, and in the event he was recompensed at legal aid rates. In any event there was no way he would have allowed Jason, a mentally ill man of previous good character, to be unrepresented on such a potentially serious charge.
Commentary
This is just one example of the stories which solicitors have told me of incomprehensible decisions being taken by inexperienced staff within the Legal Aid Agency that lead to delay, to avoidable expense, and often to injustice.
I use the word “incomprehensible” because I do not understand how anyone could have thought it was not in the interests of justice that this mentally ill adult should be unrepresented in court when he faced such a potentially serious criminal charge.
As it was, Jason obtained the services of a solicitor who, as so often, took the risk that he might not be paid anything at all for his services in representing a man who was in real need of legal representation.
Today the operation of our criminal justice system depends too much on the goodwill of lawyers, to an extent that is seriously unfair.
[1] According to the Guidelines, if a first-time offender pleads not guilty, and if the weapon was not used to threaten or cause fear, the starting point for sentencing is a high level community order, and the range of sentences is between a Band C fine and 12 weeks’ custody. The guideline is accompanied by this explanatory note:
Sentencing for possession of a weapon – knife crime
A guideline is provided in the Magistrates’ Court Sentencing Guidelines for sentencing offenders found in possession of a bladed article or offensive weapon. Significant attention has been paid to this guideline ahead of it coming into effect as a result of the current focus of the press/media on violent crimes involving knives.
The purpose of this note is to set out the effect of the guideline (which is not limited to the possession of knives) and of the Court of Appeal decision in Povey.
- The guideline has been strengthened from the previous Court of Appeal guideline Celaire and Poulton and is likely to result in many more offences (committed by adult offenders) crossing the custody threshold.
- In Povey, attention was drawn to the recent escalation in offences of this kind and the importance, for the time being, of courts focussing on the purposes of sentencing of reduction of crime (including its reduction by deterrence) and the protection of the public.
- In Povey, the Court of Appeal recommended that the Magistrates’ Court Sentencing Guidelines guideline should normally be applied at the most severe end of the appropriate range to reflect current prevalence concerns. This will be likely to lead to more cases being sentenced in the Crown Court.
- When the current concerns have been overcome, courts will be notified that the approach should return to the guideline as published.
- The guideline provides three categories of seriousness:
- level 1 is for the situation where a person has a weapon or bladed article, is not in a “dangerous circumstance” and the weapon or bladed article is not used to threaten or to cause fear; in those circumstances: – applying Povey, where the offensive weapon is a knife the starting point would be close to 12 weeks custody for a first time adult offender who has pleaded not guilty;
– in relation to an offensive weapon other than a knife, the starting point for a first time adult offender who has pleaded not guilty is a high level community order.
- level 2 is for the situation where a weapon is in the possession of the offender in “dangerous circumstances” but is not used to threaten or to cause fear; in those circumstances: – applying Povey, where the offensive weapon is a knife the starting point for a first time adult offender who has pleaded not guilty is committal to the Crown Court and, therefore, a custodial sentence in excess of six months; – in relation to an offensive weapon other than a knife, the starting point for a first time adult offender who has pleaded not guilty is a custodial sentence of six weeks.
- level 3 is for …
“Dangerous circumstances” has not been judicially defined but was used in the previous Court of Appeal guideline judgment in Celaire and Poulton. In relation to a knife, a circumstance is likely to be dangerous if there is a real possibility that it could be used.
Henry Brooke 