Expenditure on Criminal Legal Aid: Report of a Comparative Pilot Study of Scotland, England and Wales and the Netherlands

DescriptionPilot comparative study suggests why spending on Criminal Legal Aid is much higher (per head of population) in England and Wales, and Scotland than the Netherlands.
ISBN
Official Print Publication Date
Website Publication DateNovember 26, 1997

LEGAL STUDIES RESEARCH FINDINGS SUMMARY No. 9

EXPENDITURE ON CRIMINAL LEGAL AID: REPORT OF A COMPARATIVE PILOT STUDY OF SCOTLAND, ENGLAND AND WALES AND THE NETHERLANDS

MAIN FINDINGS
BACKGROUND TO THE STUDY
CRIMINAL LEGAL AID SPENDING

CRIMINAL LEGAL AID -
ENGLAND AND WALES
SCOTLAND
THE NETHERLANDS

AIMS OF THE RESEARCH
SPENDING ON LEGAL AID
THE ADMINISTRATION OF CRIMINAL LEGAL AID
CONCLUSION
ABOUT THE STUDY

Spending on criminal legal aid per head of population is much higher in England and Wales and in Scotland than in the Netherlands. A pilot comparative study was undertaken to examine some of the possible explanations underlying different levels of legal aid spending in these 3 jurisdictions. Various forms of information on legal aid and criminal justice systems in the 3 countries were analysed to consider the extent and nature of the apparent differences in expenditure. The research was undertaken by Mr Cyrus Tata and Professor Alan Paterson from the University of Strathclyde and Tamara Goriely of TPR Social and Legal Research.

MAIN FINDINGS

Compared with other European countries, spending on criminal legal aid is considerably higher per capita in Great Britain.

Scotland spends per capita, 9 times as much as the Netherlands and half as much again as England and Wales.

Differences in the number of legal aid cases relate not to the overall number of crimes, but to the way that they are processed in the criminal justice systems.

In Scotland, most legal aid expenditure is on cases dealt with through summary procedure, particularly cases of breach of the peace and assault.

In England and Wales, most spending is on Crown Court cases. In 1994/5 a small number (235) of very high cost cases accounted for one third of legal aid spending.

In Scotland and in England and Wales, most legal aid is spent on representation in non-jury courts. The costs are considerably higher in Scotland than for the other 2 jurisdictions, particularly in the Sheriff Courts.

In the Netherlands, fewer cases are prosecuted through the courts (greater use is made of prosecutor diversions) and many of these are dealt with in courts where the judges are not allowed to pass custodial sentences. Other court and prosecution practices also reduce the costs of cases in the Netherlands.

Evidence is mixed regarding the effectiveness of the structure and operation of the legal aid schemes themselves as means of controlling spending on criminal legal aid. The system in the Netherlands, which involves a rigorous standard fee system and payments to solicitors made quarterly and on the basis of last year's work, appears most effective. However, questions have been raised about the impact of such a scheme on the quality of legal services.

BACKGROUND TO THE STUDY

Compared to other European countries, England and Wales and Scotland spend considerably more on criminal legal aid per capita. In order to begin to identify and isolate the factors which affect spending on criminal legal aid, The Scottish Office, the Scottish Legal Aid Board (SLAB) and The Lord Chancellor's Department for England and Wales jointly commissioned this brief pilot study. The study also examined areas where further research is required.

CRIMINAL LEGAL AID SPENDING

A system for providing criminal legal aid is required by the European Convention on Human Rights. Any accused person facing criminal charges who has insufficient means must receive free legal aid if the interests of justice so require. Although European countries have devised schemes to fulfill their obligations under the Convention, the amount spent varies considerably across different countries.

Scotland and England and Wales are amongst the highest spending countries; by contrast, the Netherlands has one of the lowest levels of spending on legal aid per capita. Of the 3, Scotland spends most on criminal legal aid with per capita expenditure 9 times that of the Netherlands and half as high again as England and Wales. Despite these differences, the different countries have similar records in terms of keeping within the bounds of the Convention.

CRIMINAL LEGAL AID

ENGLAND AND WALES

In England and Wales, free advice is provided to all those being questioned by the police. For others (those not in custody), advice is provided under the 'green form scheme' and is the subject of a strict means test.

Responsibility for the scheme lies with several different bodies - the courts themselves grant legal aid, the Legal Aid Board pays the bills for the Magistrates' Courts while the Lord Chancellor's Department pays Crown Court bills.

SCOTLAND

As in England and Wales, free legal advice is available to accused persons held in custody, mainly through the Advice and Assistance scheme (A&A). Summary criminal legal aid is not available to those accused who have pled guilty; such accused persons may be eligible for help under the more limited Advice By Way of Representation scheme (ABWOR).

Legal aid is granted by the Scottish Legal Aid Board, subject to means and interests of justice tests. These are similar but different to those in operation in England and Wales. The courts can also grant legal aid in solemn criminal cases.

THE NETHERLANDS

Unlike the British systems, the criminal justice system in the Netherlands is an inquisitorial system. Professional judges hear cases without juries; the accused does not have to attend the trial; and the public prosecutor plays a central role in the criminal justice and sentencing processes as a whole. The courts also differ from their British counterparts in that relatively strict limits are placed on custodial sentencing.

Accused persons in custody are entitled to free legal aid whilst others must apply to a Regional Legal Aid Board where their eligibility for legal aid is assessed.

AIMS OF THE RESEARCH

The research was commissioned as an exploratory study in order to address the issues related to two questions:

Why do Scotland and England and Wales appear to spend so much more on criminal legal aid per capita than other countries?

How far is this attributable to the respective criminal justice processes or the legal aid systems?

SPENDING ON LEGAL AID

Previous research has shown that the recorded crime rates in the 3 jurisdictions are very similar, therefore differences in the number of legal aid cases relate not to the overall number of crimes, but to the way that they are processed in the criminal justice systems.

Analysis of legal aid spending suggests that in Scotland, most legal aid expenditure is on cases dealt with through summary procedure. Cases involving breach of the peace and assault are particularly common. Compared with England and Wales, Scotland spends less on cases involving dishonesty and road traffic cases.

In contrast, most criminal legal aid spending in England and Wales is on more serious cases in the Crown Court. In 1994/5, a small number (235) of very high cost cases (over £100,000) accounted for one third of legal aid spending in the Crown Court. No comparable figures are available on the number of high cost cases in Scotland.

The costs for representation in the average Scottish summary case are considerably higher than either of the other two jurisdictions, particularly in the Sheriff Courts.

In the Netherlands, a far greater proportion of cases are diverted from the courts - the public prosecutor diverts two thirds of cases from court proceedings, compared with a third of cases in Scotland, (diversion mechanisms of this type do not operate in England and Wales).

In the Netherlands, public prosecutors have adopted policies to reduce the burden on the courts - where accused are involved in several cases, these cases will be dealt with together (aggregated); accused persons do not have to appear at their own court hearings (because the system is inquisitorial, the judge directs the court process); and there are relatively strict limits on the imposition of custodial sentences in the lower courts - the lowest court cannot normally impose a custodial sentence.

THE ADMINISTRATION OF CRIMINAL LEGAL AID

In Scotland, legal aid is administered by the Scottish Legal Aid Board and in England and Wales by various bodies. Centralizing administration in a Board has not itself led to lower or more controlled spending in Scotland, neither have measures adopted to try and encourage accused persons to plead guilty at an early stage of their cases.

How legal costs are paid does appear to be a relevant factor. Scotland has the highest rate of increase in legal aid expenditure overall and in terms of costs per case of the 3 jurisdictions. It is also the only one of the 3 to operate a payment system whereby solicitors are paid on the basis of work actually and reasonably done.

At the other extreme, the Netherlands has the lowest costs and operates a rigorous standard fee system. This system appears to be a simple and effective means of controlling costs, though questions are raised about the impact on the quality of that system. Another relevant factor is that in the Netherlands, lawyers are paid quarterly on the basis of last year's work, thus there is a certain predictability and reliability in income.

CONCLUSION

Spending on legal aid is influenced by various factors. Analysis of the comparative spending in different countries helps to isolate those factors which appear to be of particular significance.

One key area is spending on representation for accused persons appearing in summary courts. In this area, costs have risen in British jurisdictions, but have remained stable in the Netherlands.

Whilst there have been increases in the overall time taken to complete cases in Britain, and in the amount of preparation time required, neither of these factors can alone explain rising costs. Evidence regarding the extent to which lawyers themselves are responsible for increased costs is inadequate. However, there is evidence that the system of standard fees adopted for the payment of legal aid in the Netherlands is an effective means of controlling the costs of summary criminal legal aid, although questions remain as to the impact this has on quality.

ABOUT THE STUDY

This study was undertaken to investigate differences in legal aid spending in Scotland, England and Wales and the Netherlands. The study was commissioned by The Scottish Office Legal Studies Research Group and was undertaken by Mr Cyrus Tata and Professor Alan Paterson of the University of Strathclyde and Ms Tamara Goriely, TPR Social and Legal Research.

Information on the criminal processes and legal aid schemes of the Netherlands, England and Wales and of Scotland was collected. Most of the data on the Netherlands were collected during a visit to the country in March 1996. In addition, interviews were conducted with officials, academics, prosecutors, defence lawyers and judges. For Great Britain, the study relied on published sources, supplemented by considerable additional information provided by the Scottish Legal Aid Board, The Scottish Office and the Lord Chancellor's Department.

The Research Findings have been prepared by the Legal Studies Research Branch of The Scottish Office Home Department.

For details of how to obtain a copy of the full report, please contact The Scottish Office Central Research Unit at the address below.

The Research Findings may be photocopied. Alternatively, further free copies or information about the Central Research Unit's Research programmes can be obtained by contacting:

The Scottish Office Home Department
Central Research Unit
Room J1-0
Saughton House
Broomhouse Drive
EDINBURGH
EH1 3XA


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