The Law Society is celebrating victory in defeating the previous Government’s plans to make acquitted defendants pay most of the costs of their own defence. A High Court judgment handed down on 15 June by Lord Justice Elias and Mr Justice Keith has ruled unlawful an attempt by the previous Lord Chancellor, Jack Straw, to cap the costs paid to people acquitted in criminal cases.

The Law Society’s case for judicial review concerned the Prosecution of Offences Act 1985, section 16 which gives the courts the power to award costs to successful defendants of such an amount “as the court considers to be reasonably sufficient to compensate the defendant for any expenses which he has properly incurred in the proceedings.” Until last October, regulations made under the Act stated that the test to be applied in determining awards of costs was to be the test set out in section 16. This scheme came under scrutiny by the MoJ as a result of budget overruns and the impact of a small number of very high cost cases. It decided therefore to take advantage of a power contained in the Act to set rates or scales for payments of costs out of central funds and to introduce a scheme which limited recoverable costs to legal aid rates.

The Government estimated that its new scheme would save £20 million each year. The cost of this was to be borne by individuals, an average of £16,200 per case in the Crown Court, representing the difference between the average costs of a privately paid case (£19,000) and the average cost of a legally aided case (£2800). The point at issue in the litigation was whether the Lord Chancellor, in setting rates or scales, can decide what is “reasonable” to allow the defendant, even if as a consequence the amount that will be recovered falls well short of the amount the defendant actually incurred.  The grounds on which the Law Society alleged that the new scheme is unlawful are: the scheme is for improper purposes; there is an irrational distinction depending on who fixes the costs and also between defence and prosecution; defendants are deprived of a fair trial; and there is a flawed understanding of the effects of the policy.

In his judgment Lord Justice Elias made it clear that the statute does not allow the Lord Chancellor to decide what is reasonable. In setting out a scheme of rates and scales, he has to respect the statutory purpose set out in the Prosecution of Offences Act. The Act was intended to provide reasonable compensation for successful defendants. He said: “The question is whether the objectives which the Lord Chancellor is avowedly seeking to achieve by adopting the New Scheme are lawful. In my judgment, they are not lawful.” He went on to say: “The new regulations involve a decisive departure from past principles. They jettison the notion that a defendant ought not to have to pay towards the cost of defending himself against what might in some cases be wholly false accusations, provided he incurs no greater expenditure than is reasonable and proper to secure his defence. Any change in that principle is one of some constitutional moment. It means that a defendant falsely accused by the state will have to pay from his own pocket to establish his innocence.” He concluded: “Accordingly, I would uphold the judicial review on the single ground that the Lord Chancellor has sought to achieve objectives which are inconsistent with the purpose for which he can pass these regulations.”

The full text of the judgement in [2010] EWHC 1406 (Admin) Case No CO/214/2010 can be found at:
http://www.bailii.org/ew/cases/EWHC/Admin/2010/1406.html

Now is the time for manifestos. Not to be outdone, the Law Society has issued its own. Strictly non-party political of course, but nevertheless aimed fairly and squarely at the current hustings. The Society recognises that: “The party in government following the general election will face a hostile and difficult environment. In facing that challenge, it must not forget the basic needs for justice and the rule of law. The Law Society calls on all political parties to publicly support…four principles in their campaigning, policy development and – if elected – their actions over the next Parliament”.

The four principles are that Government will: uphold the rule of law by ensuring meaningful access to justice for all; will properly defend the rights of the people; will work for good governance and better law-making; and will support and encourage a strong and independent legal services sector for the benefit of all. There is no shortage of specifics. The Law Society calls on all parties to commit to maintaining legal aid eligibility at current levels; supporting the principles enshrined in the Human Rights Act; and the maintenance of the right to trial by jury. Among other matters it calls for support of the pivotal role of the defence solicitor in protecting the rights of the defendant and ensuring that the criminal justice process actually works on the ground; a review of the current focus on ‘out of court disposals’; and support for an open coroners system in which all inquests are held in public. In related matters the Law Society calls for the tax year to operate on a calendar basis (1 January – 31 December), with a self-assessment deadline of 30 September; applying fixed dates for the Pre-Budget Report and the Budget; and a debate about the future of Home Information Packs.

The manifesto states that: “In recent years, the UK criminal justice system has been subject to a constant barrage of new legislation and offences. A more cautious and structured approach to extending and reforming criminal law is required to prevent the criminal justice system being overwhelmed and police forces becoming overstretched by a constantly changing criminal code”. Such laws and initiatives have included limiting the costs recovered by acquitted defendants to the equivalent legal aid rates; means testing for legal aid funding in the crown court; the growth in the use of control orders in terrorism cases; and virtual courts, where defendants may not have face to face access to a defence lawyer.

In their joint introduction to the manifesto, Robert Heslett, President, and Desmond Hudson, Chief Executive, state that: “It is important that, in the rough and tumble of an election campaign, such principles are not forgotten. The Law Society, as the voice of the largest part of the legal sector, has a unique perspective on the issues affecting justice and the fabric of society. The Society presents this manifesto as its contribution to the public policy debate in the lead up to the general election of 2010”. The full text of the manifesto can be found at:

 http://www.lawsociety.org.uk/new/documents/2010/manifesto2010.pdf

Students from low-income backgrounds can no longer afford to become legal aid lawyers, according to a recent report. Social mobility in the legal aid profession is increasingly being curtailed by the financial difficulties of training, and has reached critical levels. Legal aid is becoming a no-go area for ordinary people who want to become lawyers.

So states a report published this week by Young Legal Aid Lawyers (YLAL), an umbrella organisation formed in 2005 to represent the views of law students, solicitors, barristers and paralegals in response to growing concerns over the future of legal aid. Their report is in response to the Government consultation paper ‘New opportunities: Fair Chances for the Future’ and The Panel on Fair Access to the Professions’ report ‘Unleashing Aspirations’.

YLAL claim: “The reasons why social mobility is particularly lacking in the legal aid sector include the lack of subsidised training opportunities, low salaries, and the almost ubiquitous requirement for entry-level candidates to have copious work experience in legal aid, which inevitably can normally only be obtained on an unpaid basis. The result is that those from low-income families cannot afford to become legal aid lawyers and the legal aid profession is therefore becoming less and less representative of the people it serves: those without means”. The recent reforms to the legal aid system have led to a total dearth of training opportunities in the legal aid sector. A few firms continue to take on trainees every year, but these placements have become increasingly competitive. YLAL research showed that a total of 300 or 400 applications per placement is not uncommon, that practitioners are leaving the legal aid sector in droves and that many firms are closing, with no new firms opening. They are also very concerned about the exorbitant costs of undertaking professional qualifications.

According to YLAL the situation is exacerbated by the low rates of remuneration within legal aid. The Law Society recommended minimum wage for trainee solicitors is £16,650, rising to £18,590 in London. Upon qualification, solicitors can expect to earn less than many key workers and in fact most other workers in general. As mentioned in last November’s blog ‘Legal Aid Funding Reforms – Law Society says NO to more fee cuts’, a survey published by the ‘Guardian’ showed that legal aid solicitors earn on average £25,000 per annum – far less than GPs (who earn more than double) and teachers – and less than social workers, nurses, prison officers and sewage plant operatives. The national median salary is £25,816 whereas the median salary for public sector workers is £27,686.

YLAL make 13 recommendations, which include: an immediate review of the prohibitive costs of professional courses required to access the legal profession; an increase in the number of LSC sponsored training contracts; ongoing support and incentives to all firms that demonstrate a commitment to taking on trainees; and improved assistance to parents and others who support a family, who wish to enter the legal aid profession. They conclude: “If our recommendations are not taken on board, increasing restrictions on legal aid means that we risk creating a system where those who cannot afford to pay for legal help are reliant on an unrepresentative cohort of legal aid lawyers…The absolute right to free legal advice from a lawyer of your choice is an essential part of meaningful access to justice”.

 The full text of  “Legal aid lawyers: the lost generation in the ‘national crusade’ on social mobility” can be found at:

 http://www.younglegalaidlawyers.org/files/YLAL_SOCIAL_MOBILITY_REPORT_FEB_2010.pdf

The right of defendants to consent or refuse a ‘virtual court’ hearing has been removed, leaving the initial decision about whether the case is suitable to proceed in this way to the police.

In a virtual first hearing the defendant appears in the Magistrates’ court by a video link from the police station. The magistrates or District Judge, court staff and prosecutor are at the court in the usual way, with the defence solicitor either at the police station, or at the court. If the solicitor is at the court the defendant may need to provide instructions to their solicitor by phone or video link. Virtual first hearings may take place in respect of any offence. The initial decision to proceed in this way will now be made by the custody sergeant at the police station after the defendant has been charged. The Office of Criminal Justice Reform is conducting a widespread pilot of the virtual first hearing system in London and Kent. From 14 December 2009, the previous requirement that a defendant must consent to participate in a live link hearing, contained in sub-section 57C (7) of the Crime and Disorder Act 1998, has been removed by the Coroners and Justice Act 2009. Therefore the defendant’s consent to appear in court by way of the video link from the police station is no longer required.

The Law Society is concerned this move has come despite the system only being piloted and not independently evaluated. President Robert Heslett said: “The removal of the defendant’s consent means this process will change before we know how effective this type of hearing is. There is an evaluation currently under way, and it would be preferable to await the outcome of that evaluation before major changes are made. The Society has set out our concern that virtual courts may place defendants at a disadvantage in communicating with the court and with their solicitor if the solicitor has to take instructions by telephone or video link to the client.” He also expressed concerns about the physical safety of solicitors in the virtual court hearing room. They will be in close proximity to the defendant who may become aggressive, for example as a result of the court’s decision to remand them into custody.

In an ‘Observer’ article headed “The horror of virtual courts is upon us” Henry Porter wrote that virtual courts seem to save time and money, as well as put an end to the no-show of defendants. But close examination of the procedure shows that it means the defendant’s lawyer cannot be with him or her and in the court at the same time. If the lawyer remains at court, the opportunity to take confidential instructions from their client is almost impossible, but if he goes to the police station he cannot consult with the prosecution and his ability to argue with the magistrates is dramatically reduced. He concluded “It is so easy to be lulled by the Ministry of Justice’s language about ‘secure video links’ and ‘freeing up police time’ and ‘making it easier for victims to see justice being done’, but, as so often under the Labour government, the hard truth is that justice will be the victim”.

And finally, on a different note altogether, may I wish you a happy, healthy and prosperous New Year.

The National Audit Office’s latest report to Parliament on the procurement of Criminal Legal Aid in England and Wales will make uncomfortable reading for the Legal Services Commission.

In 2008-09 the Commission spent more than £1.1 billion on criminal legal aid, £112 million of which was spent on 432 Very High Cost Criminal Cases.  871,000 acts of assistance at police stations and 125,000 acts of assistance at the Crown Court were funded. The LSC spent £22 per capita on criminal legal aid, more than any other comparable developed nation except Northern Ireland. At the other end of the scale France spent £0.9 per capita, though differences are partly attributable to the greater defence costs inherent in an adversarial legal system, in contrast to jurisdictions where judges play a greater investigative role.

The NAO found that the data used by the LSC to make payments for criminal legal aid services is inaccurate and incomplete. The existing controls over the quality of data and the accuracy of payments made to firms are not effective, and the impact of reforms has not been evaluated consistently. At present, gaps in the LSC’s knowledge about its supplier base mean that it has not developed a good understanding of the market, such as the cost structures of different types of firms and their profit margins. The NAO concluded  that “there are significant weaknesses in the way criminal legal aid has been administered…New schemes have not always been piloted…(and) the Commission’s ability to make payments to criminal legal aid suppliers is undermined by poor administration”.

An NAO survey of 369 firms delivering criminal legal aid found that it accounted for almost 60 per cent of turnover. Firms reported an average profit margin of 18.4 per cent in the last financial year, a fall from 21.6 per cent three years ago. They reported a wide range of profits, with 16 per cent of firms reporting no profit in the last financial year. Almost 80 per cent of firms which also conducted private legal work reported that criminal legal aid was less profitable, and firms which had withdrawn from contracts reported the main reason was that remuneration compared unfavourably with other types of legal work.  In their survey, 28 per cent of firms reported it unlikely they would be conducting criminal legal aid work in five years’ time, due mainly to lack of profitability and the prospect of tendering. The survey also revealed tensions in the relationship between the profession and the LSC. Of those who responded to the survey, 36 per cent of solicitors perceived the LSC as ‘unhelpful’, 29 per cent believed the LSC did not fully understand the legal system and 18 per cent cited the Commission’s “constant change of the system, processes and rules.”

The Law Society has welcomed the report. Legal aid manager Richard Miller said:

“This report goes a long way in dispelling the belief that legal aid lawyers are profiteering from the system. Many of them are not even earning any income from the work they do at all. This is a picture of a supplier base on the point of crumbling into insolvency. It is those requiring access to justice who will lose out in the long run if there are not enough solicitors providing legal aid criminal defence services.” He called for a major overhaul of the system to simplify criminal defence contracts so that they are easier and less expensive for the legal aid solicitors and LSC to administer.

For the full text of the NAO report ‘The Procurement of Criminal Legal Aid in England and Wales by the Legal Services Commission’ go to: http://www.nao.org.uk/publications/0910/procurement_of_legal_aid.aspx 

and follow the links.

Last week the Legal Services Commission announced the launch of a consultation on the replacement scheme for Very High Cost (Crime) Cases (VHCCs).

Chief Executive Carolyn Regan said: “The LSC is setting out a number of options for the most complex and expensive criminal cases that are designed to ensure clients continue to receive high quality legal advice. At the same time, it will also ensure litigators and advocates are fairly paid and are encouraged to work efficiently so that taxpayers receive value-for-money”. The new scheme is designed to replace the VHCC Panel scheme, established in January 2008, and the LSC makes no bones about the need to deliver savings.

For advocates, three options are proposed for consideration: to maintain the current panel system; an adaptation of the current hourly rate scheme but managed under individual case contracts; and extending the current Advocates’ Graduated Fee scheme, which is used in cases that last up to 40 days, to include cases that are expected to last up to 60 days. All cases that last 60 days or more would be paid at 2008 Panel rates. For litigators there are two options for consideration: to maintain the current panel scheme; and extending the current Litigators’ Graduated Fee scheme, on the same basis as the Advocates’ Graduated Fee scheme detailed above.

The Law Society has hit back at the plans to extend the Litigators Graduated Fee Scheme to VHCCs. Robert Heslett, Law Society President, said it was a barely-tested scheme and not a viable option. “The LGFS has not been in place long enough to have been properly evaluated. There have been numerous problems with it. It underpays for certain types of serious and sexual assault case, and for cases which are prepared for trial but then result in a guilty plea”. He pointed to the operational difficulties in validating the pages of prosecution evidence on which the payment calculation depends, adding that the scheme needs to be made to work for the cases for which it was designed before it can be extended to additional cases. “The scheme does not have any mechanism to take account of the work on unused material or the management required on very high cost cases. It depends on a ‘swings and roundabouts’ principle, but as most firms will only handle one or two VHCC cases per year, the sample is not large enough for the swings and roundabouts effect to function and firms will be subject to a greater risk of incurring substantial losses on these cases.”

The Law Society also said that an extended advocates graduated fee scheme raises many challenges. It may not be attractive to advocates without addressing some of the structural issues currently under discussion. This could mean that advocates are less likely to take on cases under the proposed system which could have serious implications for clients being able to obtain representation in long running trials.

The consultation closes on 26 January 2010 and all interested parties are encouraged to respond. The full text of the consultation document is at:

https://consult.legalservices.gov.uk/inovem/gf2.ti/f/184610/3234053.1/pdf/-/VHCC%202010%20%20A%20Consultation%20Paper%20%20Dec%202009.pdf

Solicitors who provide legal aid services are among the worst paid in the public sector according to a recent survey. The average salary of a legal aid solicitor is £25,000, less than a prison officer or sewage plant worker. It is also well below police officer, nurse and secondary school teacher according to figures compiled by the Guardian newspaper and published by the Law Society.

In light of the recent Ministry of Justice consultation – that plans to slash fees for legal aid – the Law Society says ‘enough is enough’. Chief Executive Desmond Hudson said: “There is no scope left for cutting fees. These figures show that solicitors undertaking legal aid earn well below the average for professional salaries, and considering solicitors can amass significant student debts and work very long hours, the pay is very far from fat cat territory.” The Law Society believes any cuts to “this thread-bare system” will see firms no longer able to undertake this work, civil provision in mixed practices being hit, and the most vulnerable clients unable to obtain the assistance they need.

The Law Society has just published its response to the Ministry of Justice ‘Legal Aid Funding Reforms’ consultation. It states that the proposal to pay for committal hearings under a fixed fee in the Crown Court “is a fundamental misconception in the paper, that work conducted in the magistrates’ court is being ‘duplicated’ in the Crown Court”. In a scathing critique of the Advocates Graduated Fee Scheme, the Law Society say that, after the stagnation of criminal legal aid rates from April1994 to 2001, the LSC encouraged practitioners to sign up to a new contracting regime that promised a partnership between Government and the profession that could provide the necessary defence services that underpin a fair adversarial system of justice. “Since then, in contradiction to the promises, more and more cuts have been instigated. Whilst claiming to be done in the name of efficiency, these cuts have become nothing more than cynical brinkmanship: the only measure of policy that the Government recognises is whether there are enough survivors to provide the service”.

The Law Society say it is clear that, whilst practitioners continue to try to do their best for their clients, the recent seemingly relentless swathe of cuts to fees at all levels of work has left many of them with no choice but to undertake the minimum work possible within acceptable levels. “Clearly if cuts to police station fees leave practitioners with no choice but to spend less time in the police station, this is likely to lead to more people being charged, and more people being remanded in custody, thus causing further burden to the already overstretched prison population”. Their conclusion is that Criminal defence lawyers have become beleaguered and demoralised. “This fact will ultimately lead to profound damage to the future of defence services. Unlike any other part of the legal aid community criminal practitioners provide a 24 hour service to the community every day of the year… The current proposals for Crime risk cutting legal aid provision to a bare minimum that will see firms no longer able to undertake this work”.

The full text of the Law Society’s response can be found at the extremely long web address:

http://www.lawsociety.org.uk/secure/file/182408/e:/teamsite-deployed/documents/templatedata/Internet%20Documents/Non-government%20proposals/Documents/lsresp_fundingreforms_091105.pdf