COMMONS AMENDMENT (Hansard, 14 July 1999)

§ Lord Falconer of Thoroton

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 37. I wish to speak also to Amendments Nos. 38 to 41.

Amendments Nos. 37 to 39 make technical changes to Clause 17 to ensure that it delivers the Government's intended policy. Clause 17 provides that a judge may order a defendant to pay some or all of the cost of any representation funded for him as part of the criminal defence service. This will replace the existing complex and wasteful system of means testing every applicant for criminal legal aid at the start of a case. The new system will eliminate the delay caused by means testing and target wealthy criminals more effectively.

Orders under Clause 17 will be made where the cost of the representation to be recovered is high enough to justify the cost of the scrutiny of a defendant's assets by a special investigation unit; that is why these orders are not available for cases which do not proceed beyond the magistrates' courts.

This Government's intention is that in all courts other than the magistrates' court, the court at the end of a case will have a duty to consider whether a defendant should pay for his defence costs. It may be apparent to the judge that the defendant has substantial assets as a result of the nature of the evidence given during the trial. In these circumstances, after hearing representations from the defence, the court could make an order. In other cases it may be appropriate for an investigation to be conducted into a defendant's means by a special investigation unit.

As drafted, the power to make a recovery of defence costs order is restricted to the Crown Court, and the scope of an order to representation in the Crown Court. Amendments Nos. 37 and 38 ensure that the Court of Appeal can also make orders under Clause 17. Amendment No. 39 allows the order to cover the cost of all representation, including representation in the magistrates' court. Amendments Nos. 40 and 41 concern the information necessary to allow the court to make a recovery of defence costs order.

As I have said, in some cases it will be appropriate for an investigation to be conducted into a defendant's means by a special investigation unit. During this investigation it might, in exceptional circumstances, be appropriate to prevent the defendant from disposing of 427 substantial assets, perhaps with a view to him avoiding an order. Amendment No. 41 would give this power. I commend these amendments to the House.