Martin Partington: Spotlight on the Justice System

There is increasing recognition that the criminal legal aid scheme is not delivering an adequate service for the Criminal Justice system. Practitioners have long argued that cuts have gone too far; there have been strikes, threats of strikes and last minute deals cobbled together to try to stop the wheels falling off the bus completely.

In December 2018 the Government announced that there would be a more fundamental review of the criminal legal aid scheme.

More detail about the scope of the review was announced in March 2019. Thus the review will consider criminal legal aid throughout the life cycle of a criminal case, including:

• pre-charge advice at the police station, advice and advocacy services in the Magistrates’ Court and Youth Court, and advice and advocacy for prisoners
• advice and litigation services in the Crown Court through the Litigators’ Graduated Fee Scheme (LGFS)
• advocacy services in the Crown Court through the Advocates’ Graduated Fee Scheme (AGFS)
• litigation and advocacy services for very high cost Crown Court cases though the Very High Cost Case (VHCC) Scheme

The review will also consider wider changes to the justice, social, economic, business and technological landscape that are impacting on the criminal legal aid system – including, but not limited to:

• Her Majesty’s Court and Tribunals Service (HMCTS) reform, including the digitisation of the criminal trial process;
• the Attorney General’s review of disclosure of evidence, and the need to prevent trials collapsing because of failure to disclose evidence; and
• wider modernisation work being pursued by the Home Office and the police.

The Government has stated that the overall objectives of the review are:

(1) To reform the criminal legal aid fee schemes so that they:

• fairly reflect, and pay for, work done
• support the sustainability of the market, including recruitment, retention, and career progression within the professions and a diverse workforce
• support just, efficient, and effective case progression, limit perverse incentives, and ensure value for money for the taxpayer
• are consistent with and, where appropriate enable, wider reforms
• are simple and place proportionate administrative burdens on providers, the Legal Aid Agency (LAA), and other government departments and agencies
• ensure cases are dealt with by practitioners with the right skills and experience

(2) To reform the wider criminal legal aid market to ensure that the provider market:

• responds flexibly to changes in the wider system, pursues working practices and structures that drive efficient and effective case progression, and delivers value for money for the taxpayer
• operates to ensure that legal aid services are delivered by practitioners with the right skills and experience
• operates to ensure the right level of legal aid provision and to encourage a diverse workforce.

The plan is to produce a report by the end of Summer 2020.

As part of this peogramme the Crown Prosecution Service has  been undertaking work to develop proposals for the remuneration of prosecution lawyers. It plans to finish this work by the end of September 2019.

As interim measures, the CPS has proposed changes to fees payable to prosecutors to be implmented from 1 Sept 2019. In addition, the Ministry of Justiice has agreed with the Criminal Bar Association and the Bar Council that the elements of the review will be accelerated:

• consideration of the issue of unused material;
• fees paid for cracked trials; and
• uplifts in paper-heavy cases.

The intention is for interim proposals to be made by the end of September. The impact of the prorogation of Parliament and the possibility of a General Election may alter these timings.

Details about these developments may be found at:

For the overall review https://www.gov.uk/guidance/criminal-legal-aid-review#history

For the CPS work see https://www.cps.gov.uk/cps/news/proposal-between-crown-prosecution-service-ministry-justice-attorney-general-criminal-bar