Tag Archive | "The Law Society"

Late night courts


Last month HM Courts and Tribunals Service (HMCTS) announced that it was planning to test late night courts this month in an effort to understand how to make the system more flexible for all users.

The pilot is planned to take place in six courts over six months. Under the scheme, Crown courts at Newcastle and Blackfriars will be open until 6pm, civil courts in Brentford and Manchester until 7pm and magistrates’ courts in Sheffield and Highbury, London, until 8.30pm.

A spokesperson for HMCTS was reported as saying: “We are exploring flexible operating hours in six pilot courts to test how we can improve access to justice for everyone by making the service more convenient for working people. These pilots will help us understand how flexible hours affect all court users and will be fully evaluated before any decision is taken on rollout.”

Then came the announcement of a general election and the trial was postponed. It is a fair bet that the majority of the legal profession hope that the postponement is permanent.

The Law Society pointed out that the pilot will rely on the assistance of lawyers who have already been subject to public funding cuts and a flood of civil justice reforms in recent weeks, and warned that any proposal would require robust evaluation to assess the impact.

The Criminal Law Solicitors’ Association (CLSA) said that the announcement of the pilot scheme had been met with anger by criminal practitioners, saying that the absence of defence practitioners from the planning group “is staggering when you consider that they are essential to the smooth running of the justice system. To exclude the very people who ensure that defendants are properly represented and that justice is done is most concerning.”

The CLSA go on to say: “The prison service is currently in crisis and will be faced with dealing with prisoners having to be conveyed and booked into the prisons of an evening. The probation service will need to make officers available at extra cost as will HMCTS, the Crown Prosecution Service, mental health services and social services. Access to justice will be restricted as the “project” has seemingly failed to consider how legal representation will be made available.”

A leading chambers, Garden Court North Chambers has warned the government that remaining goodwill from barristers is running at ‘dangerously low levels.’ In a statement released this month the Manchester set condemns the idea and warns that ministers should no longer rely on lawyers to toe the line.

The Chairman of the Criminal Bar Association (CBA) said the scheme is “misconceived, impractical, an inefficient use of time and inimical to anyone with care responsibilities.” Such schemes have been trialled before and none ended well. He went on to say that the scheme will mean barristers having to work in court far later than they presently do with a serious knock on effect on their ability to prepare that evening for the next day’s cases.

The view of the CBA is that the scheme threatens to have a serious impact on the family lives of barristers who already work long hours. Many have direct childcare responsibilities which make working until 7pm or later in court completely impractical. As the bulk of childcare falls on the shoulders of women lawyers this scheme is likely to be discriminatory.

The future of this proposal is now dependent on who becomes lord chancellor. The record of recent incumbents of that post does not bode well.

Posted in Criminal Justice, Law UpdatesComments (0)

Enabling tax avoidance


According to the ‘Gazette’, solicitors, with the exception of those in-house, are among the main losers from last week’s spring budget. A combination of higher national insurance contributions and increased taxes on dividends will hit self-employed practitioners, partners and director shareholders.

In addition, accountants, lawyers, tax planners and advisers who provide advice on how to avoid tax will face tough penalties under new proposals being consulted on by the government. Under the plans set out in an HMRC consultation document enablers of tax avoidance could have to pay a fine of up to 100 per cent of the tax the scheme’s user underpaid. The fines are designed to be levied against accountants and lawyers who create tax avoidance schemes of the kind used by celebrities. Read the full story

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Reforming the Advocates’ Graduated Fee Scheme


The Ministry of Justice (MoJ) has issued a consultation paper which sets out proposals for the reform of the Advocates’ Graduated Fee Scheme (AGFS). This scheme pays advocates to defend clients in the Crown Court. The current AGFS scheme was last subject to major change in 2007.

In his introduction to the consultation, Sir Oliver Heald QC MP, Minister of State for Courts and Justice, said: “Sir Brian Leveson has produced an outstanding blueprint for the modernisation of our criminal proceedings system. His reforms are already beginning to transform the criminal justice system to reflect the new reality that we face. It is vital that we update the way that we pay criminal defence advocates to reflect this reality too. Our current payment system does not focus enough on the skilled advocacy that barristers and solicitor advocates demonstrate in the Crown Court. I want to change that.”

According to the Government, the AGFS relies too heavily on Pages of Prosecution Evidence (PPE), served by the Crown Prosecution Service, as a means of deciding how complex individual cases are, and therefore how much a defence advocate should be paid. The current scheme also relies on the number of witnesses to help determine the fee to be paid.

The justice system is changing, and new forms of evidence are becoming critical features of many criminal cases. The counting of pages, and counting of new forms of electronic evidence, converted to “pages” is held to be no longer the most effective way of assessing how much work an advocate needs to do in an individual case, and therefore how much that advocate should be paid.

The proposed scheme claims to reduce reliance on counting pages, and instead would introduce a more sophisticated system of classifying offences, based on the typical amount of work required in each case. The time spent in court, conducting the advocacy upon which the justice system relies, would also become a more important driver for the fee paid. It is designed to be cost neutral, “with no intention to reduce or increase the overall cost envelope.”

While encouraging as many members as possible to respond to the proposals, the Law Society asserts that MoJ plans to impose cuts of up to £30 million on criminal defence solicitors. The proposed cuts come less than a month after the MoJ published proposals that will see QCs’ fees rise by 10% at the expense of other criminal advocates. The MoJ will reduce payments to advocates appointed by the court to cross-examine alleged victims of abuse from private rates to legal aid rates, and will make changes to the Litigators Graduated Fee Scheme (LGFS) which will slash payments for paper-heavy Crown Court cases. Criminal solicitors simply cannot afford to absorb any further cuts.

James Parry, chair of the Law Society’s Criminal Legal Aid Committee, said that these cuts are unnecessary and ill-timed, given the long term project to reform the litigator fee scheme, which will ultimately remove reliance on the pages of evidence which are creating this problem. As the Society will be working with the MoJ on this longer term project “it is unwise to impose short-term cuts on the scheme before that project has even started.”

“The Ministry has extensive independent evidence from consultants that demonstrates that solicitors’ businesses cannot afford to absorb further cuts, and there is a substantial risk that these cuts will drive a significant number of firms into insolvency,” said Parry.

“We recognise that the MoJ has concerns about the use of paper as a proxy for determining fees in the Crown Court,” he said. “With so much evidence now being video or data evidence, we have long shared those concerns. This is why we lobbied the Legal Aid Agency to start discussions about revisions to the LGFS to reflect the reality of Crown Court cases today. It is deeply disappointing that the MoJ is making ill-considered ad hoc changes to the scheme when those discussions are ongoing and making good progress.”

Parry concluded: “This is not a rational approach. The Government needs to tackle the problem at source. It cannot keep responding to every change in the criminal justice system by slashing the fees paid to lawyers.”

Posted in Criminal Justice, Legal Aid, UncategorizedComments (0)

Driving Consultation


The Ministry of Justice’s consultation on whether to increase the current maximum custodial sentences available for causing death by dangerous driving and causing death by careless driving under the influence of drink or drugs closed this week.

In the foreword to the consultation last December, justice minister Sam Gyimah said: “While the UK has one of the best road safety records in the world, deaths or serious injuries on the roads cause devastation to victims and their families, for whom the sentence of the court can never adequately reflect the loss of a loved one. The Government is committed to ensuring that deaths or serious injuries continue to fall, and that where they are the result of criminal behaviour, the right tools are available to deliver justice.”

The introduction to the consultation stated: “As a general principle, the criminal law needs to take into account not only the harm caused, but also the level of blame of the offender, and sentences must be a matter for the judge to determine in individual cases, based on the full facts of the case and of the offender before them. The Government is however committed to ensuring the legislative framework that the courts operate within reflects the seriousness of offending and the culpability of the offender. The proposals in this consultation are intended to offer a proportionate response to these crimes.”

The consultation sought views on whether the current maximum penalties available to the courts for the existing offences of causing death by dangerous driving and causing death by careless driving under the influence of drink or drugs should be increased from 14 years’ imprisonment to life. It also asked for views on whether there is a gap in the law relating to careless driving that results in serious injury.

Dangerous drivers who kill are set to face life sentences under plans put forward by ministers. Dangerous drivers causing death by speeding, street racing or while on a mobile phone are among those now facing the same sentences as those charged with manslaughter.

Other proposals included creating a new offence of causing serious injury by careless driving, with a maximum sentence of 3 years, and increasing minimum driving bans for those convicted of causing death.

The consultation did not cover offences such as speeding, drink-drive limits, the ‘basic offences’ of careless or dangerous driving, and driving while using a mobile phone. But the consultation paper stated that such behaviours are relevant where they are a factor in the driving that led to a death or serious injury.

The Law Society, in its response, observed that the government’s concern for road traffic accidents victims was “belied somewhat by its proposals to increase the small claims limit which will, in effect, make it much more difficult for victims of traffic injuries to obtain professional legal representation because of the non-recoverability of costs.”

The Society did not think the maximum penalty for causing death by dangerous driving should be increased from the current level of 14 years to life, stating that: “It is important for the law to maintain a distinction between driving offences causing death and injury, and other offences against the person and homicide where there is intent.” The suggestion that the maximum penalty should be imposed in all cases of death by dangerous driving was “contrary to the well-established principle of judicial discretion”, it added.

With more than 9,000 responses to its proposals this was one of the biggest the department has received. The ministry will set out its plans “in the coming months.”.

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ECJ Date Retention Ruling Goes Against UK


The Investigatory Powers Act (IPA) overhauls laws governing how the state gathers and retains private communications or other forms of data to combat crime. Broadband and mobile phone providers are compelled to hold a year’s worth of communications data. Known by critics as the snoopers’ charter, there is serious concern about the number of agencies that will get access to the communications data and other privacy issues. Read the full story

Posted in Civil LibertiesComments (0)

The Brexit Papers


Brexit could undermine London’s status as a highly profitable international legal centre, according to the Bar Council, which represents barristers in England and Wales.

The Government must put the public interest at the heart of its Brexit strategy, the Bar Council has warned as it publishes the Brexit Papers, written by members of the Brexit Working Group set up by the Bar Council to examine the range of complex issues arising from Brexit and to help the Government identify the legal and constitutional priorities.

Led by the Chair of the Brexit Working Group, Hugh Mercer QC, the group has drawn on the combined expertise and experience of the profession across a wide range of practice areas. Mercer said: “EU law currently impacts nearly all areas of life. We need a plan to make sure that people do not suffer from uncertainty and ultimately end up worse off. If we are going to minimise the adverse impacts on UK citizens, a huge number of highly technical areas of law need looking at in fine detail.”

The Bar Council did not take a position on leaving or remaining in the EU. Chairman of the Bar, Chantal-Aimée Doerries QC said: “There has not been a more profound legal and constitutional challenge in living memory with which the UK Government has had to grapple, in terms of legal complexity, or significance for the long-term health and stability of the economy…Our interest is in helping to ensure that Brexit delivers the best deal possible for Britain.”

The report refers to cases in which claimants are being advised not to choose English jurisdiction clauses in their contracts where previously they would have been almost an automatic choice. Some cases that would normally be launched in England are being started in other EU jurisdictions due to uncertainty over the ultimate enforceability of English judgments.

According to the ‘Guardian’, the UK legal services market generates £25.7bn a year in revenue and employs 370,000 people. It produced £3.3bn of net export revenue last year. In the short to medium term Brexit may benefit lawyers whose legal advice is sought in a period of uncertainty, but the long-term prospects are not as good.

Peter Wilding, the man credited with inventing the term Brexit in 2012, said “This is not stopping Brexit, this is shaping it. The country demands a win-win, smart Brexit, not a lose-lose ideological hard Brexit which will damage the UK, damage Europe and for which there is no need and no mandate.”

The Law Society welcomed the bar’s Brexit Papers publication, which it said echoes positions set out by Chancery Lane in the wake of the referendum vote. Law Society president Robert Bourns said that: “Throughout this year the bar and the solicitor profession have been engaging with the government to examine the ramifications of Brexit, and put robust information before ministers, parliamentarians and officials.”

Hugh Mercer said “There is a great deal of work to be done. The resources of the Brexit Working Group, as well as those of the Bar Council and the Bar as a profession, are being made available to the Government, parliamentarians and the media, as well as to the public, so that Brexit delivers the best deal possible for Britain.”

The full text of The Brexit Papers can be found at:
http://www.barcouncil.org.uk/media/508513/the_brexit_papers.pdf

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The Civil Courts Structure Review


Last week Lord Justice Briggs published the Civil Courts Structure Review (CCSR), his final report into the structure of the civil courts.

It was commissioned by the Lord Chief Justice and the Master of the Rolls in July 2015 to coincide with a programme for reform of the courts by Her Majesty’s Courts and Tribunals Service (HMCTS) and looking at civil court structures and judicial processes more generally.

The final report follows an extensive series of meetings with judges, practitioners, stakeholders and users of the civil courts, and a series of detailed written and oral submissions following the publication of the review’s interim report in January 2016.

The report recommends a new online court for dealing with all monetary claims up to £25,000. The court will be designed to be used by people with ‘minimum assistance’ from lawyers with its own set of user-friendly rules, which he said will help to increase access to justice for those with unmet needs.

It is anticipated that it will eventually become the compulsory forum for resolving cases within its jurisdiction.

Briggs said lawyers must now face up to the challenge of unbundling and find a way to provide advice in the new system at a fixed recoverable cost.

A proposed three-stage process will involve automated triage to decide on the merits of a case, arbitration handled by an assigned case officer and a judicial decision if the case cannot be resolved any other way.

He recommends a system of case officers, made up from a senior body of court lawyers and other officials. They would assist with certain functions currently carried out by judges, such as paperwork and uncontentious matters. They would be trained and supervised by judges, and their decisions would be subject to reconsideration by judges on request by a party. They would operate independently of government when exercising their functions.

There should be a single court as the default court for the enforcement of the judgments and orders of all the civil courts (including the new online court). This should be the county court, but “there would need to be a permeable membrane allowing appropriate enforcement issues to be transferred to the high court, and special provision for the enforcement of arbitration awards, in accordance with current practice and procedure. All enforcement procedures to be digitised, centralised and rationalised.”

The principle should be that no case is too big to be resolved in the regions. The current acute shortage of circuit judges specialising in civil work in the county court needs an urgent remedy.

In signing off his final report, Lord Justice Briggs comments: “It is for others to decide which of the above recommendations should be implemented, and by what means. In my view, if they are all substantially implemented, then the essentially high quality of the civil justice service provided by the courts of England and Wales will be greatly extended to a silent community to whom it is currently largely inaccessible, and both restored and protected against the weaknesses and threats which currently affect it.”

The Law Society cautiously welcomed the report, sounding a note of caution on the importance of ensuring online courts do not limit access to justice. “It is vital that ordinary and vulnerable people using the online court are not prejudiced when claiming against large organisations,”

Chief executive Catherine Dixon said: “The final report on the online court indicates that IT may improve court efficiency. Importantly it also recognises the vital role solicitors will play in helping clients navigate the new system and ensuring that they are able to access justice.”

Photo courtesy of Province of British Columbia Photsteam.

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Civil legal aid


Legal aid will no longer be made available for cases with poor or borderline prospects of success that may have received funding, the government has said.

Last week the Legal Aid Agency (LAA) announced that there would be a new approach to making decisions on prospects of success for ‘poor’ and ‘borderline’ cases. The LAA has changed its approach to assessing merits in civil legal aid to take account of the Court of Appeal judgment in The Director of Legal Aid Casework (DLAC) and Lord Chancellor v IS. The Court of Appeal ruled last month that the agency’s exceptional case funding scheme and merits regulations were lawful.

Although the Court of Appeal ruled in the lord chancellor’s favour, several observations were made about the government’s exceptional case funding scheme. The LAA said that the MoJ was considering what steps to take following the court’s findings.

Under the current merits criteria most cases need to pass a ‘prospects of success test’ before legal aid can be made available. The LAA said:

“The merits criteria state that the prospects of success test is met in cases with ‘poor’ prospects or ‘borderline’ cases where:

  • funding is necessary to prevent a breach of a client’s rights under the European Convention on Human Rights, or any rights of a client to the provision of civil legal aid or services that are enforceable under EU law; or
  • DLAC considers it appropriate to find that the test is met having regard to any risk of such a breach.”

The change comes as a result of the Court of Appeal finding that it is lawful for the prospects of success test to have a 50% threshold, and this does not breach a client’s rights. “As a result, we are now no longer funding any applications for civil legal aid that are subject to a prospects of success test where the prospects are assessed as poor or borderline,” the LAA said.

The LAA added: “We have also reinstated delegated functions to allow providers to refuse legal aid in cases that they assess as having poor or borderline prospects. This allows Immigration providers to refuse applications for controlled legal representation in these matters without having to revert to us first.”

The ‘Gazette’ reports the Law Society as saying that the change could mean fewer people being entitled to legal aid. “We are therefore disappointed that the Ministry of Justice decided to announce this significant change so soon after the referendum, and without consultation,” a spokesperson for the Society said.

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JSC report on courts and tribunals fees


The Justice Select Committee (JSC) is appointed by the House of Commons to examine the expenditure, administration and policy of the Ministry of Justice and its associated public bodies. On Monday the committee published its second report, on Courts and tribunals fees.

The JSC said: “First, although it is a legitimate position to object to any court fees being charged to litigants, that is not a position we share. Some degree of financial risk is an important discipline for those contemplating legal action, and a contribution by users of the courts to the costs of operating those courts is not objectionable in principle: the question is what is an acceptable amount to charge taking into account the need to preserve access to justice.”

The JSC’s response to that question is to call for an overhaul of the employment tribunal fees scheme and to scrap the recent increase in the divorce petition fee. A full response to the committee’s critical report is likely in September, but in the meantime the MoJ has defended its record on the imposition of fees.

An MoJ spokesman, quoted in the ‘Gazette’, said: “The cost of our courts and tribunal system to the taxpayer is unsustainably high, and it is only right that those who use the system pay more to relieve this burden. Every pound we collect from fee increases will be spent on providing a leaner and more effective system of courts and tribunals.”

The JSC focused much of its report on the need for changes to the remission system, which reduces fees for those who can show they are in financial need. The report says: “The cornerstone of efforts to mitigate the impact of courts and tribunal fees on access to justice is fee remission.

“Fee remission is only available to individuals, including those who conduct their business as sole traders. It is not available to companies, charities or other organisations. Claimants must submit separate applications for remission of each fee, and to be successful, they must first pass the disposable capital test and then the gross monthly income test in respect of each fee.”

In particular, with employment tribunal fees, the JSC called for the income threshold to qualify for fee remissions to be increased.

Law Society president Jonathan Smithers said: “The Law Society and the solicitors’ profession have raised repeated concerns, in written submissions and oral evidence, now echoed by the Justice Select Committee, that punitive courts and tribunals fee increases are denying citizens and businesses the right to justice. The government must now heed the views of experts from across and beyond the legal profession. We welcome and reiterate the JSC’s unequivocal declaration that access to justice must prevail over generating revenue when the government is setting court and tribunal fees.”

He went on to say: “’The JSC clearly recognises the Law Society’s concerns that punitive employment and immigration tribunal fees prevent people from upholding their rights. We urge the MoJ to act swiftly on the JSC’s recommendation that the fees charged in the Employment Tribunal should be substantially reduced. Court-fee increases that have now been adopted were opposed by 90 per cent of respondents to the government consultation, making a mockery of the consultation process. Today’s report vindicates the concerns of those respondents.”

He concluded: “’All civil cases, from divorce, employment and immigration cases to landlords and small businesses trying to get their property back, are affected by fee increases which are tantamount to treating justice like a commodity. Justice is increasingly out of reach for many ordinary people. This will only serve to widen the access to justice gap in our two-tier justice.”
The full text of the JSC report can be found at:

http://www.publications.parliament.uk/pa/cm201617/cmselect/cmjust/167/16702.htm

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Crime Contingency Contracts


Following justice secretary Michael Gove’s January decision to scrap a controversial ‘two-tier’ contracting regime, for which firms competed to secure one of 527 duty provider contracts, replacement contracts were expected to come into force later this year.

The Legal Aid Agency (LAA) is now offering to extend current contingency contracts, which were due to expire on 10 January 2017, to 31 March 2017. Providers have until 30 June to accept the offer.

The LAA said: “This extension is needed so that we can:

  • allow the tender process and mobilisation period to be completed so providers can prepare for a new crime contract in 2017
  • ensure continuity of crime services from 11 January 2017 to the start date of the replacement crime contract Letters will be issued to all Crime Contingency Contract holders shortly. Providers will have until 23.59 on 30 June to accept the contract extension. “Any providers who do not accept the extension will retain a contract to the current end date of 10 January 2017.”

The LAA also announced that it had entered into a three week consultation with representative bodies on the content of the 2017 Standard Crime Contract on 8 June 2016. A spokesperson for the agency confirmed that the representative bodies are the Law Society, Bar Council, Legal Aid Practitioners Group and Advice Services Alliance.

As reported in the ‘Gazette’, a Law Society spokesperson said: “We are expecting the contract to be largely uncontroversial, mainly reflecting changes proposed in the draft 2015 contracts when the Legal Aid Agency drafted “own” and “duty” contracts for the two-tier arrangements.

“The Society has been working with the practitioner groups and the LAA to try to find a mechanism to mitigate the problem of “ghost” duty solicitors by tightening up the rules to ensure that only those currently active in criminal law can act as duty solicitors.”

Also quoted in the ‘Gazette’, Zoe Gascoyne, chair of the Criminal Law Solicitors’ Association, regretted the fact that the CLSA and the LCCSA were not statutory consultees. LCCSA president Greg Foxsmith said the association has “made the case for duty solicitor slots to remain with individual solicitors, rather than firms,” adding “with over 1,000 members in London desperate to know what the provisions of the proposed new contracts [are], it is bizarre that the LCCSA is not consulted but instead the Bar Council is invited to comment.”

One may ask why this last minute rush to deal with a well flagged matter. Could it be that the all consuming hustings for the referendum has led politicians, of all colours, to take their eyes off the ball of routine government business. Be grateful that we have a diligent, highly professional civil service to see that essential business is maintained.

Posted in Criminal Justice, Legal AidComments (0)

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