Reports of Committees
| Published date | 01 November 1966 |
| Date | 01 November 1966 |
| DOI | http://doi.org/10.1111/j.1468-2230.1966.tb02267.x |
REPORTS
OF
COMMITTEES
DEPARTMENTAL
COMMITTEE
REPORT
:
LEGAL
Am
SIX
months after the publication in March
1906
of the Report of
the Widgery Committee there was still
no
sign
of
how the
Government proposed to deal with its recommendations.
It
is to
be hoped, however, that, the state of the economy notwithstanding,
these will receive urgent attention. The Committee’s terms of
reference were to examine and report
on
the arrangements and
machinery for providing legal aid in criminal proceedings.
It
had,
iri
other words,
a
brief to review the whole of the existing situation.
It
took
as
its measure of a.just and effective legal aid system two
main objectives: first, that the system must ensure that injustice
does not arise through
an
accused person being prevented by lack
of means from bringing his defence or matters that could be urged
in mitigation effectively before the court; secondly, that legal aid
should only be made available where necessary.
It
rejected the
view that the state owed
a
duty
as
a
kind of social insurance to
provide legal representation for anyone who could not afford
it.l
It
considered the first objective in the light of the present
availability of legal aid. The latest figures (for
1064)
showed that
aid was granted to
1-2
per cent.
of
defendants
in
summary trials,
24-7
per cent. in preliminary hearings and
62.1
per cent.
in
trials
on
indictment.s The figures
also
showed that, for whatever reason,
the majority of those who did
not
receive aid did not apply for
it.
In
19641,
only
P5
per cent. of the
1,857,008
persons dealt with
summarily applied for aid
as
compared with
28.0
per cent. of the
27,886
who appeared before examining magistrates and
81.2
per
cent. of the
86,124
committed for trial or sentence.‘ The Report
unfortunately did not go into the question why such
a
relatively
low proportion of defendants apply for aid. This surely would
have been
an
opportunity for some sociological study
of
who does
and does not apply for aid, and why.
The low proportion of applications would seem to demand some
investigation. One reason may be that the majority of defendants
know nothing about the provisions for aid. More probably they
do not always appreciate that their eases would benefit from legal
help. Others may be too nervous, inexpcrienccd or intimidated by
court proceedings to make application-especially when
it
appears
that such application,
if
successful, will involve
an
adjournment.
IN
CRIMINAL
PROCEEDINQ8
1
Cmnd.
2994.
a
Ibid.
para.
66,
p.
14.
J
Ibid.
pame.
82-39,
Tablee
1,
8,
9.
4
Ibid.
089
640
THE
MODERN
LAW
REVIEW
VOL.
29
An attempt to solve this problem would require the court to be
under an obligation to tell every defendant that, subject to means,
he was entitled to ask for legal aid, and to inquire whether he
made such application, if necessary with an adjournment.
The
courts should not be allowed to assume-as they normally do in
all but scrious cases-that the accused is sufficiently knowlcdgenble
to
ask
for aid himself;
The Report states that the Committee were satisfied that the
proportion of refusals of applications for aid was not unreasonably
high.s Thc figures showed
28.5
per ccnt. refusals for summary
trials,
16.5
per ccnt. for preliminary hearings and
11.8
per
cent.
for trials on indictment.O Since the Report did not, however, give
any indication of the standards by which'it measured whether the
proportion was too high, it is dificult to know whether the Com-
mittee had any specific criteria in mind.
A
survey conducted
specially
for
the Committcc
of
all applications made during the
period August
17
to August
20,
I964,
showed that
18
per cent. were
refused, of which
68
per cent. were refused
on
the grounds that the
defendant had the means to pay for his
own
defence. The most
frcqucnt other grounds for refusal were the likelihood of
a
guilty
plea,
or
the triviality of the offence. In some cascs aid was retuscd
because some magistrates held the vicw that legal aid was
unnecessary in committal proc~edings.~
The Report states that in the view of the Committee the
existing provisions permitting the grant of lcgal aid wherever this
appcarcd in the interests of justice gave the courts
a
sumciently
wide discretion. But it suggested that they should nevertheless be
supplemented by guidance as to the criteria to be applicd in
deciding
whether
legal aid was desirablc in the interests of justice.
This would incrcase uniformity.
On
thc whole the Conimittee was
impresscd by the way
in
which thc courts exercised their discretion,
but it found that some tendcd
to
refuse aid where
it
ought to have
been granted.
It
urged that there ought to be
a
statutory statement
of
the
principles that should govern the cxercise of the discretion.
For
trials
on
indictment and committals for sentence the Committcc
strongly recommend that, subject to means, full legal aid should
be granted in all but exceptional cases. Aid should only be
refused wherc
it
was not desirable in the interests of justice to
grnnt it.
It
did not give examples of such cases, but
it
obviousIy
visualiscd the category as an cxtremcly small one because
it
said
that aid should be granted in
'(
practically all
"
If
this
5
Ibid.
para.
35,
p.
8.
0
Ibid.
para.
35
and Table
8,
pp.
8-9.
7
Ibid.
para.
42,
p.
10.
8
Ibid.
para.
160,
p.
40.
Tho
Committee
also
rightly recommffded the abolition
of
tho dock bricf. wliich it snid wns
fnir
neitlicr
to
counsel
~110
ha6 to work
for
totall inudcqontc rcmiineration," nor
to
tho prisoner
whoso
defence
cannot oLcn be properly carried out rindor
siicli
circumstnnccs
11:
ibid.
para.
152,
p.
41.
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