Up to 75% of criminal legal aid firms will be removed from the market under far-reaching reforms set to be implemented from summer 2011. The Ministry of Justice has announced new proposals for the tendering of criminal legal aid services with the aim of delivering significant savings to taxpayers and a more sustainable future for the legal aid budget It is claimed that the proposed new tendering process would also lead to greater efficiencies for suppliers enabling them to be profitable and sustainable, whilst ensuring that legal aid is available to those most in need.

The proposals would see the criminal legal aid market restructured so that there are a smaller number of large contracts contracted across a Criminal Justice Area, with multiple contracts let in each CJS area. In future there are likely to be no more than eight to ten contracts per CJS area. Arguments are advanced for moving quickly towards a consolidated market that will enable firms to remain viable through access to greater volumes of work. Individuals would continue to have a choice of legal representatives from among the pool of providers who hold contracts. Under the proposed model, contracts would be let for the full range of criminal defence work from the police station through to the Crown Court, with cases followed through to their conclusion. All contracts would include a share of police station and magistrates’ court duty work. The claim is that contract holders would therefore have greater access to the higher value, more profitable work, including the ability to undertake Very High Cost Cases.

In an interview with the ‘Law Gazette’, legal aid minister Lord Bach said: “These proposals are likely to affect a large number of small and medium-sized firms, but the current arrangements are unsustainable. Solicitors have been telling us for some time that the amount they get from legal aid is not enough to keep them profitable. These plans will generate greater efficiencies for suppliers, help people access good advice, and get a better deal for the taxpayer.” He estimated that no more than 500 firms will get contracts, which would mean that up to 75% of the 1,700 firms doing criminal legal aid work face an exit from the market. At the launch of the proposals Jack Straw said: “We have a duty to ensure that the legal aid budget is used effectively and efficiently on behalf of the taxpayer. Even with the necessary savings and reforms, our system of legal aid – civil and criminal – will still be far and away the best funded in the world.”

Responding to the new proposals, Law Society President Robert Heslett said: “We have long argued that the current situation is not sustainable in the medium to long term. We agree with the Ministry that reform is needed”. But he added: “The model proposed by the Ministry bears little resemblance to the market as it is currently structured, and it is not clear how, nor how quickly any move to such a model could be implemented without causing serious disruption to service provision. We do not have an economic environment in which firms will find it easy to make the necessary investment to expand as much as would be required.”

The full text of the MoJ report “Restructuring the delivery of criminal defence services” can be found at:

http://www.justice.gov.uk/publications/docs/restructuring-delivery-criminal-defence-services.pdf

Announcing last week that reforms of the law on libel will be taken forward in the next Parliament, Justice Secretary Jack Straw said: “Our current libel laws need to achieve a fair balance between allowing people to protect their reputations from defamatory allegations, and ensuring that freedom of expression and the public’s right to know on matters of public interest are not unnecessarily impeded. At the moment, we believe that the balance is tilted too much in favour of the former”.

The reforms will build on the work of the Libel Working Group, which was established by the Ministry of Justice in January to consider reforms to the law of libel, and whose report was also published last week. The report focuses on four principal areas in which the case for reform has been urged with particular emphasis: libel tourism; the role of public interest considerations in establishing a defence to a libel action; the rules about multiple publication, with particular reference to the internet; and procedural and case management issues relating to the conduct of libel litigation.

Under the MoJ’s proposals, the current multiple publication rule will be replaced with a single publication rule. This will ensure that claimants in libel proceedings cannot bring a case against every publication or download of a story repeating the same claims. Instead, claimants will only be able to bring a single action, within one year of the date of the original publication. The interests of people who are defamed will be protected by giving the court the power to extend this period where necessary. Consideration will also be given to a statutory defence to protect publications that are in the public interest. It is claimed that this would help address the ‘chilling effect’ that the threat of libel proceedings can sometimes have on investigative journalism, which occurs when media outlets and NGOs are cautious about publishing important information due to the threat of legal action. The government also plan to move to prevent the growth of ‘libel tourism’, when foreign claimants use English courts to make libel claims against foreign publications outside the EU which can be accessed in the UK. This will include asking the Civil Procedure Rule Committee to consider tightening the rules where the court’s permission is required to serve defamation cases outside England and Wales. The aim is to head off inappropriate claims at the earliest stage and stop them from reaching court.

Many commentators welcome the proposed reforms but feel that they do not go far enough, particularly in regard to a public interest defence, where more commitment is sought. The Libel Reform Campaign claims that our libel laws are stacked in favour of claimants, reporting that none of the 154 libel proceedings in 2008 identified in the Jackson Review of Civil Litigation Costs (see blog posted on 19 January) were won by defendants. On costs, they state that the most expensive libel action cost £3,243,980; that the average cost for the 20 most expensive trials was £753,676; and that the average cost of a libel trial in England & Wales is 140 times the European equivalent. An earlier government attempt to reduce the costs of libel cases – reducing the success fees that lawyers can charge in defamation cases from 100% to 10% – has been held up in the Lords by a “motion of regret” tabled by the former Commons speaker Lord Martin. The Ministry of Justice is planning to make parliamentary time available to prevent the order being killed off before the election.

The full text of the Libel Working Group report can be found at:-

http://www.justice.gov.uk/publications/docs/libel-working-group-report.pdf

The Virtual Court is a new initiative aiming to speed up first hearings and improve the service given to victims and witnesses. It enables a defendant, who is charged in a police custody suite, to appear in a magistrates’ court for a first hearing whilst still physically located in the Police Station. It is claimed that this reduces the time from charge to first hearing from days to just a few hours in most instances. A Virtual Court combines video conferencing technology, an on-line ‘virtual’ collaboration space allowing case files to be shared electronically, and secure links to join up the agencies involved.

Last week, Charing Cross Police Station was linked with Camberwell Green Magistrates’ Court in a virtual court hearing, with a 14 further stations taking part in the scheme over the coming months. Already one defendant has been jailed for drink driving, just hours after his arrest. Currently defendants held at Charing Cross have the right to refuse to take part in the trial, but that right would be removed by legislation before Parliament. Justice Secretary Jack Straw has backed the pilot scheme, claiming virtual courts have the potential to “transform how the justice system deals with crimes. Although at an early stage, this pilot helps the courts, police, prosecutors, defence lawyers and the judiciary work better together to deliver quicker and more effective justice without any loss of quality. The faster we get justice done, the more we improve public confidence in the criminal justice system as whole,” said Straw.

But the Law Society has expressed grave concerns. They claim that Virtual Courts could see thousands of defendants losing their right to appear in court. Richard Miller, Law Society Legal Aid Manager, said that “There are major practical considerations about virtual courts that have not yet been satisfactorily addressed”, instancing worsening delays increasing the number of ineffective hearings and solicitors not being able to gather the information necessary for a bail application in the time available. They question how defendants will get confidential advice and how their lawyers will get access to the relevant paperwork for second hearings. And they also have “grave concerns over the safety of its members – under this scheme defendants will be sat in a small room right next to their solicitor”. Jack Straw addressed this point particularly when he said “I never had any experience of a defendant threatening me. There are a lot of police officers and custody officers in the custody suite”.

The Office of Criminal Justice Reform (OCJR) is set to outline the future for the virtual courts pilot scheme next week following this trial. They will seek to “explain the scheme’s ability to lower costs and improve efficiency as part of the government’s drive to use technology more effectively in justice delivery”.

The Council of Circuit Judges (COCJ) is effectively the trade union representing the 652 Crown Court judges in England and Wales. The Council has become a body with a very public profile, responding to the many consultations put out by government. It accepts that judges should not make political statements, nor comment on individual cases, but can and do contribute to better understanding of how the law operates and should operate. So when the Council condemn government plans for new sentencing guidelines as “unnecessary, costly and unwelcome” and likely to lead to injustice it comes as a fresh blow to the controversial and embattled Coroners and Justice Bill which is now passing through Parliament.

Jack Straw’s catch-all bill has made these columns twice before (see “Civil Liberties” and “Partial defences to murder”). This point of attack is aimed at Chapter 1, clause 100 et seq, which, according to the COCJ, would mean that the discretion of the sentencing judge would be severely limited by “mandatory guidelines which the court must follow or apply in reaching the sentencing decision”. The Sentencing Guidelines Council and the Sentencing Advisory Panel are to be abolished, to be replaced by the Sentencing Council for England and Wales, a body of 14 appointed jointly by the Lord Chancellor and the Lord Chief Justice. This Council must prepare sentencing guidelines which every court must follow in sentencing an offender. The bill has passed through the Commons but has yet to go through the Lords.

In a hard hitting statement issued last week, the COCJ said that “We do not believe that the introduction of mandatory Guidelines will facilitate the just and proper sentencing of offenders. We consider that the imposition of mandatory Guidelines may result in injustice to both offenders and victims in individual cases”. The judges accuse the Government of departing from recommendations made by a working group set up under Lord Justice Gage in 2007 to consider a mandatory sentencing framework. Its report called the idea “unsuitable and unacceptable in England and Wales”. Jack Straw, the Justice Secretary, has sought to defuse the issue, insisting that he was not introducing mandatory sentencing guidelines. He said that he had moved a series of amendments to underpin judicial discretion. The bill was intended to ensure greater consistency in sentencing, which would be in the interests of justice and, primarily, of the public.

The COCJ is unimpressed “even taking account of the government amendments”. It concludes damningly “We do not consider these sentencing proposals to have any benefit. The proposals are not sought by the judiciary or any other criminal justice group”. The full text of the COCJ statement can be found at

http://www.judiciary.gov.uk/about_judiciary/governance_judiciary/cocj/statements.htm