LEGAL AID FOR MITIGATION

Publication Date01 Sep 1977
AuthorHoward Levenson
DOIhttp://doi.org/10.1111/j.1468-2230.1977.tb02440.x
LEGAL
AID
FOR MITIGATION
THE
Royal Commission
on
Legal Services will have to consider,
in
the light of research showing discrepancies in the way in which
magistrates refuse legal aid,l whether there should be
a
system for
appealing against the magistrates’ refusal of legal aid.
In
July 1973
the Law Society published
a
memorandum in which it proposed that
Legal Aid Committees be empowered to determine such appeals,
and that
in
some cases they should be able to grant legal aid limited
to a plea in mitigatiom2 This particular proposal has its dangers,
as will be suggested below, but also provides
a
good example of how
thinking and attitudes towards the legal system evolve.
Until the Poor Prisoners Defence Act 1903 there was
no
statutory
provision at all for legal aid. Until 18363 prisoners on trial for
felony were not allowed representation of any kind except for the
purpose of arguing points of law which the judge thought worth
having argued by counsel and which related to the indi~tment.~
Even after 1836 the only ways in which prisoners of limited means
could be represented were by
a
dock brief
or
by having counsel
assigned by the court to undertake the defence gratuitously.6 The
1903 Act empowered courts to grant legal aid to
a
prisoner of
insufficient means where it appeared
desirable in the interests of
justice
and
having regard to . .
.
the defence set up.” This was
interpreted as limiting the grant of legal aid to cases where a defence
was set up before the justices and thus excluding legal aid for pleas
of guilty.
This limitation was removed by the Poor Prisoners’ Defence
Act 1930. Restrictive conditions still remained but in theory the
way was free for courts to grant legal aid for pleas in mitigation
on
a
committal
for
sentence or
a
guilty plea.7 However, many courts
seemed unaware that the requirement that the defence be disclosed
had been repealed.8
In
1938 Humphreys
J.
had gone so far as to
state
:
“I
hope that the time will come when every accused person
unable to afford legal aid will be given
it
at the expense of
e.g.
Criminal Legal Aid in 1975
in (1977) 127 New L.J. 332.
Legal Aid in Criminal Proceedings (Law Society, 1973). para. 6.
When the Trials for Felony Act 1836
(6
&,
7
Will.
4,
c.
114)
gave
all
prisoners
on
trial for felony the right to make
full answere and defence thereto by counsel learned
in the law.”
Sce Baker, Introduction
to
English Legal History (1971),
p.
278.
See
e.g.
The Dock Brief
in the Law Guardian Gazerte for November 1973.
See
e.g.
Legal Aid for Counscl Only
(1974) 124 New L.J. 405.
This Act followed the first Report of the Committee on Legal Aid for the
Annual Report of the Clerk to the Sheffield City Justices 1936-39 (1937)
1
R.
v.
Chorley
at
the Kent Assizes, reported in (1938) 2 Journal
of
Criminal
Poor
(the Finlay Committee), Cmd. 2638 (1926).
Journal
of
Criminal Law 379, 381.
Law 382.
523

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