Posts Tagged ‘criminal legal aid’
Independent Review of Criminal Legal Aid – announcement
Just before Christmas, the Government made the long awaited announcement that the independent review of Criminal Legal Aid would start work in January 2021 – with a view to reporting by the end of 2021. The Chair of the Inquiry is to be Sir Christoher Bellamy, a retired judge – formerly President of the Competititon Appeal Trbunal. He will be supported by an Expert Panel, though the composition of the Panel has not yet been announced
The announcement contains a link to the terms of reference for the inquiry which set out in rather more detail than usual the aims of the inquiry and some of the issues it is required to take into account. The document states that the Criminal Legal Aid Review ‘has two main objectives’:
- 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; and
• ensure cases are dealt with by practitioners with the right skills and experience. - 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 document also states that ‘ultimate objective of the Criminal Legal Aid System is to provide legal advice and representation to those who most need it’ and that in order to achieve this overarching objective,
“the Independent Review will seek to make recommendations that will ensure the Criminal Legal Aid System:
a. provides high quality legal advice and representation;
b. is provided through a diverse set of practitioners;
c. is appropriately funded;
d. is responsive to user needs both now and in the future;
e. contributes to the efficiency and effectiveness of the Criminal Justice System;
f. is transparent;
g. is resilient; and
h. is delivered in a way that provides value for money to the taxpayer.”
Furthermore “in order to conduct this analysis, the review will consider the following themes:
- resilience
- transparency
- competition,
- efficiency; and
- diversity.
For criminal legal aid practitioners this is a very important moment. It is clear that the current criminal legal aid is not working as it should. The question remains whether, despite the generally positive tone of the initial press release, a substantially reformed system will ultimately be implemented. This will be an important test for both Government and the legal professions. Much will depend on the political skills of the Lord Chancellor in ensuring that the resources to reform the system are available.
The announcement is at https://www.gov.uk/government/news/independent-review-into-criminal-legal-aid-to-launch-in-january. This includes the link to the terms of reference.
The Criminal Legal Aid Review: interim announcements
The Government announced, way back in December 2018, that it planned to undertake a review of the Criminal Legal Aid scheme. This was a response to a fierce campaign (including instances of strike action) by the legal professions complaining about the very poor rates of pay now offered for criminal legal aid work, and evidence that – at those levels of pay – the future prospects for a criminal legal aid service looked bleak.
Although, under the Legal Aid, Sentencing and Punishment of Offenders Act 2013, the scope of the Criminal Legal Ad scheme had not been reduced in the same way as the civil legal aid scheme had been, Government austerity measures certainly bit on the pay and conditions of those undertaking criminal legal aid work.
The announcement of the review in December 2018 provided some acknowledgement by the Government that all might not be well. But setting up a review can be used as a mechanism for postponing hard decisions. As the result of further lobbying by criminal legal aid practitioners, the Government decided that it would offer an accelerated set of interim measures to try and mollify the legal profession – at least in the short term.
On 21 August 2020 the Government’s decisions on the accelerated measures were announced. In making the announcement, the Lord Chancellor stated that the changes would represent an injection of around £51m into the Criminal Legal Aid Budget. Set against a total spend (in 2019-2020) of around £820m on Criminal Legal Aid it is only a modest increase (just over 6%). The additional resources will be used to deal with a number of detailed issues such as how litigators and advocates are paid for work on unused material and how advocates are paid for work on paper-heavy cases.
In announcing his decision, the Lord Chancellor commented:
“[The] accelerated areas are only the first step towards the wider review, which we always intended would result in reforms that would support a sustainable and diverse market of practitioners. Since then, Covid-19 has thrown into sharp relief concerns about the sustainability of the market. …
“Fundamentally, we want to ensure that the market can: meet demand now and into the future; provide an effective and efficient service that ensures value for money for the taxpayer, and continue to provide defendants with high-quality advice from a diverse range of practitioners. …
“Having reflected on whether our original approach to delivering the review was the right one to achieve these overarching aims, I have decided that the next phase of the Review should involve an independently-led review that will be ambitious and far-reaching in scope, assessing the criminal legal aid system in its entirety, and will aim to improve transparency, efficiency, sustainability and outcomes in the legal aid market. It will consider working practices and market incentives and how these can drive efficient and effective case progression and deliver value for money for the taxpayer. Planning is in progress and I plan to launch it as soon as possible after Parliament returns [in September 2020].
“Alongside the independent review, we will also prioritise work to ensure that the fee schemes … are consistent with and enable wider reforms that seek to modernise the criminal justice system, in line with our original aims for the review. Given the rapid changes in ways of working that have been adopted across the justice system to support recovery in the courts, it is essential that the criminal legal aid system actively enables the defence profession to play its role in these efforts.”
So a lot of further change may be anticipated. In the meantime, long-suffering criminal legal aid practitioners will soldier on, hoping for better times ahead.
Details of the announcement and the details of the Government’s changes – which will be brought into effect by regulations in August 2020 – see https://consult.justice.gov.uk/criminal-legal-aid/criminal-legal-aid-review/
Royal Commission on the Criminal Justice system – details awaited
In the Queen’s Speech, delivered in December 2019, it was announced that the Government would establish a Royal Commission to review and improve the efficiency and effectiveness of the criminal justice process. Little has been heard of this proposal since then. However, in recent meetings with the House of Commons Justice Committee, the Lord Chancellor made it clear that he has been given the resources needed to enable the establishment of the Commission.
At present – and no doubt reflecting other more pressing priorities driven by Covid 19 – no further information is available. It is, however, likely to be a broad-ranging inquiry, not only limited to the operation of the courts, but taking other aspects of the criminal justice system into account as well.
A separate consultation on the Criminal Legal Aid scheme closed in June 2020. The results of that inquiry are likely to be published towards the end of 2020. A number of interim changes to the criminal legal aid scheme were announced in February 2020.
For the Queen’s Speech, December 2019, see https://www.gov.uk/government/speeches/queens-speech-december-2019
The announcement of the consultation on Criminal Legal aid is at https://www.gov.uk/guidance/criminal-legal-aid-review
Reaction of the Law Society is at https://www.lawsociety.org.uk/en/topics/criminal-justice/criminal-legal-aid
Reviewing the Criminal Legal Aid fee schemes
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
Legal support – the way ahead? How much vision?
I have already noted the outcome of the Post-Implementation Review of changes to the Legal Aid scheme contained in Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012. While the Government clearly does not want to make major changes to the scheme, the review did reveal issues to which the Government clearly feels it must respond. In February 2019 it published Legal Support: The Way Ahead – An action plan to deliver better support to people experiencing legal problems.
As a paper, it lacks the ambition or vision of other recent reports, in particular the Report of the Low Commission report on the future of legal services. But buried in the detail is a number of straws in the wind which are worth noting, even if they don’t make the heart race.
The Paper starts by repeating the point that the Government already provides ‘£1.6 billion to the most vulnerable in society to ensure that they can access legal aid’. It seems to accept, however, that there are some who – at least in some circumstances – should receive legal aid who currently do not get it. The Paper states that the Government ‘will conduct a review into the thresholds for legal aid entitlement, and their interaction with … wider criteria’. This review will be completed by summer 2020.
In the interim there will be changes to eligibility for some public family law cases, to be introduced in summer 2019.
And, whilst the review is ongoing, the Government will continue with current arrangements to passport all recipients of universal credit through the legal aid means test.
Addressing the problem that people do not know about their entitlement to legal aid, the Government states that it ‘will ensure that more people are aware of their entitlement to legal support – and will advertise its availability’. The stated aim is to launch the awareness programme by autumn 2019 – dealing not just with legal aid, but legal support more generally.
The Government plans to make some changes to protect the most vulnerable. It will expand the scope of legal aid to include separated migrant children in Spring 2019. It also plans to bring forward proposals to expand the scope of legal aid to cover special guardianship orders in private family law by Autumn 2019.
As regards Exceptional Case Funding, the Government plans to consider, by the end of 2019, whether the process for applying for Exceptional Case Funding can be simplified, and whether decisions can be reached more quickly. It will also consider whether it is necessary to introduce a new emergency procedure for urgent matters to access Exceptional Case Funding.
By Spring 2020, the Government will amend the rules relating to the ‘mandatory telephone gateway’ so that there can be immediate access to face-to-face advice in discrimination, debt and special educational needs cases. (The telephone option is retained.)
The new Paper accepts that ensuring people can access the right legal support at the right time may help people resolve problems more efficiently and effectively. There is research evidence demonstrating how problems, if left undiagnosed and unresolved, can escalate, cluster, and lead to damaging cycles that are hard to break. However, the Government states that there is limited comprehensive research as to what works best, when, and for whom. Further, whilst it is often suggested that early intervention leads to cost savings, the financial and economic benefits of early advice are difficult to quantify with accuracy. The Government’s response to this challenge is that it wants to pilot and evaluate several different forms of early legal support.
Thus,
- it will work collaboratively with providers to develop web-based products which bring a range of legal support tools together in one place;
- it will improve the signposting advice and support available from the existing specialist telephone service and test enhancements to this service;
- it will use funding to encourage the delivery of legal support through technology;
- recognising that a comprehensive service may offer people an opportunity to support themselves, the Government will work collaboratively with the legal and advice sector to evaluate the impact of legal support hubs;
- it will pilot face-to-face early legal advice in a specific area of social welfare law and will evaluate this against technological solutions, bearing in mind costs; and
- it will enhance the support offered to litigants in person.
All these interventions will be researched to assess what is the best way to help and support those who need it, and whom should be assisted in the provision of legal support. The intention is that there should be outcomes from these initiatives by the end of 2019.
The Government states that it will continue to work across departments to help to improve the quality of decision-making on legal rights. It has been noted on numerous occasions that if decisions are ‘right first time’ this should reduce the need to take cases on appeal.
Key to the modernisation of the justice system is the need to ensure that forms and systems are as simple and straightforward to use as possible, and that the courts and tribunals service enables people to resolve their conflicts as quickly and early as possible. The Government wants to generate momentum in this area, but acknowledges that this is a first step.
It will be important for the Government to continue open and collaborative working with experts over the coming years, identifying and evaluating new ideas. One specific commitment is that the Government plans to set up a Legal Support Advisory Network to make use of external expertise, shape research and evaluation proposals, and potentially explore new research opportunities and collaborations.
As a nod to the problem of whether or not there will be sufficient numbers of people entering this sector of the legal services market, the Government states it will ‘support practitioners to join the legal profession and continue to deliver high quality legal support to people across England and Wales long into the future’.
Specifically there will be a comprehensive review of the criminal legal aid fee schemes and structures, to be completed by Summer 2020.
The full paper can be accessed at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/777036/legal-support-the-way-ahead.pdf
See also Press Release at https://www.gov.uk/government/news/government-sets-out-new-vision-for-legal-support
Standards of Criminal Advocacy: reports from the Solicitors Regulation Authority and the Bar Standards Board
In November 2015, I noted in this blog the critical report by Sir Bill Jeffrey on standards of criminal advocacy. I also noted the consultation paper on the subject issued by the Government.
In June 2018, the SRA and the BSB published two reports on the subject.
The first report explores the views of the judiciary on the current quality, provision and regulation of advocacy within the criminal courts. The Judicial Perceptions Report, involved in-depth interviews with 50 High Court and circuit judges.
Key findings were:
- While judges viewed the current quality of advocacy as competent, some felt that standards were declining in some areas, especially in relation to core courtroom skills such as case preparation and dealing with some witnesses.
- Advocates’ skills in dealing with young and vulnerable witnesses are largely improving.
- The most commonly cited barrier to high quality advocacy was advocates taking on cases beyond their level of experience.
- Judges were uncertain over when, and how, they should report poor advocacy to regulators.
The second report arose from a Thematic Review of Criminal Advocacy, undertaken by the SRA. It was informed by data gathering and interviews with 40 solicitors’ firms actively involved in providing advocacy by solicitors within the courts.
Key findings of the SRA’s thematic review included:
- Firms use in-house solicitors to support the vast majority of criminal work in magistrates’ courts and youth courts (90 percent), and 29 percent of work in the Crown Court.
- The solicitors’ advocacy market is dominated by smaller firms and increasingly ageing individuals, while the number of new entrants to the market is falling.
- Levels of complaints regarding advocacy work are relatively low (22 recorded complaints in two years across all 40 sample firms).
- Approaches to training are inconsistent, with its delivery often infrequent, limited or not planned.
To me, the most concerning finding is that those doing this work are aging and are not currently being replaced by younger colleagues. It may be assumed that the cuts to criminal legal aid have had an impact on this.
Building upon the findings of both reports the SRA will be undertaking further work to understand the work of solicitor advocates. The Bar Standards Board also intends to publish its strategy for assuring the quality of advocacy shortly.
The reports can be accessed at https://www.barstandardsboard.org.uk/media-centre/press-releases-and-news/regulators-publish-reports-into-criminal-advocacy-standards/
or https://www.sra.org.uk/sra/how-we-work/reports/criminal-advocacy.page
Paying for criminal defence advocacy
Relations between Government and the Criminal Bar have not, in recent years been characterised by a great deal of warmth and mutual understanding. Indeed, criminal barristers went on strike recently against what they regarded as unfair policy on legal aid remuneration.
I am sure it would be overstating things to say that peace has now broken out between the Government and the Criminal Bar. But a new Consultation Paper on the remuneration of criminal defence advocates (including solicitor advocates) has been published which seems to be the fruit of close working relationship between the two sides.
Certainly the chairman of the Bar Council has welcomed the paper’s publication and has urged advocates to support the recommendations set out in the paper.
One of the key aims of the new proposals is to try to ensure that payments reflect actual work done by advocates on behalf of their clients.
The proposals also seek to reflect the changing nature of criminal trial practice as the criminal courts’ efficiency programme continues to develop.
The proposals also aim to give a sense of career progress to those who undertake criminal defence advocacy. Pay should be higher as experience is gained and more serious cases are undertaken.
The recommendations are not based on any increase in the amount of money available for paying advocates; but they are designed to be a rational response to the changing face of criminal advocacy and to take a fresh look at a payments system that was last looked at 20 years ago.
The details of the consultation – which runs till early March 2017, are at https://www.gov.uk/government/news/proposals-to-reform-criminal-defence-advocates-pay-published
Criminal legal aid changes – recent decisions
It is, to me, one of the curiosities of public life that U-turns are usually portrayed in the mass media as a sign of official/political incompetence. To me the idea that someone might change their mind because they had had second thoughts is a sign of maturity and intelligence.
Whether you regard the Secretary of State for Justice as incompetent or intelligent and mature, there is no doubt that his recent written statement to the House of Commons on the change of direction on Criminal Legal Aid reform is important.
The issues are:
1 Reductions in fees paid to legal aid applicants. They had been reduced in March 2014 by 8.5%. A similar sized reduction was planned for July 2015, but this was put on hold while the MoJ did not work to ensure that such a cut would be unlikely to reduce the quality of criminal advocacy. In his January 2016, Michael Gove has announced that there will be a further postponement of the proposed cut. “I have also decided to suspend, for a period of 12 months from 1 April 2016, the second fee cut which was introduced in July last year.” Whether or not that fee cut will be brought back into effect in April 2017 will depend on how the market for the provision of criminal legal aid services has developed in the meantime.
2 Consolidation of provision of criminal legal aid. There has long been a view in Government that there are too many soicitors’ firms offering criminal legal aid services. Various proposals have been made to reduce their number. The most draconian proposal was that existing criminal legal aid contract should be replaced by new contracts that would be awarded, following a tendering process, in which contracts would be awarded to those firms who submitted the lowest bids for legal aid work.
Unsurprisingly this was fiercely resisted by solicitors on the basis that, if implemented, this would be a ‘race to the bottom’ – standards would fall because services would only be offered by those charging the least.
Mr Gove’s predecessor, Chris Grayling, came up with an alternative plan, known as ‘dual contracting’. Under the dual contracting system, two types of contract were to be awarded to criminal legal aid firms.
- An unlimited number of contracts for ‘own client’ work based on basic financial and fitness to practise checks – in others words continued payment for representing existing and known clients.
- And a total of 527 ‘duty’ contracts awarded by competition, giving firms the right to be on the duty legal aid rota in 85 geographical procurement areas around the country, with between 4 and 17 contracts awarded in each. In other words, these contracts would allow a limited number of firms the chance to represent new entrants to the criminal justice system.
The dual contracting model was designed to meet concerns expressed by the legal profession about price competition.
A tender process under this proposed scheme did go ahead, but ended very badly with a lot of adverse publicity about both process and outcome.
The primary arguments against these alternative proposals were
- Many solicitors firms feared that the award of a limited number of “dual” contracts – with a restriction therefore on who could participate in the duty legal aid rota would lead to a less diverse and competitive market.
- Many barristers feared that the commercial model being designed by some solicitors’ firms would lead to a diminution in choice and potentially quality.
- And, possibly the most compelling argument, many also pointed out that a process of natural consolidation was taking place in the criminal legal aid market, as crime reduced and natural competition took place.
In the face of considerable potential litigation (99 cases in the pipeline, plus a judicial review challenging the whole process), the Government has announced that this exercise will also be set aside. There will be a further review of the process towards consolidation early in 2017.
3 Quality of criminal advocacy. In the midst of all this, the report from Sir William Jeffrey on how to enhance the quality of criminal advocay has not been forgotten. Mr Gove stated:
I will also bring forward proposals to ensure the Legal Aid Agency can better support high quality advocacy. Furthermore, I intend to appoint an advisory council of solicitors and barristers to help me explore how we can reduce unnecessary bureaucratic costs, eliminate waste and end continuing abuses within the current legal aid system. More details will follow in due course.
I don’t think that criminal legal aid practitioners are completely off the hook as regards potential changes to how they work. But for the immediate future, things are clearer.
For Mr Gove’s written statement, go to https://www.gov.uk/government/speeches/changes-to-criminal-legal-aid-contracting.
For further information on the Jeffrey Review, see this blog at https://martinpartington.com/2015/11/05/enhancing-the-quality-of-criminal-advocacy/
What is happening to legal aid: podcast with Ruth Wayte
Ruth Wayte is the principal legal adviser with the Legal Aid Agency. In this podcast she reflects on the changes that have been taking place to the legal aid scheme. She acknowledges that legal aid practitioners have experienced significant cuts in the fees they receive for the work they do. But she also notes that there are still practitioners seeking contracts for work from the legal aid agency. Most applications to tender for work are well subscribed. She also comments on a number of the legal issues that have arisen in the courts, arising out of changes to the legal aid scheme.
You can hear her remarks at:
http://global.oup.com/uk/orc/law/els/partington14_15/student/podcasts/RuthWayte.mp3
Public defender service – expansion
The Public Defender Service (PDS) was established in 2001 to offer an alternative to solicitors in private criminal legal aid practice. The service now operates out of 4 centres: Cheltenham Darlington, Pontypridd and Swansea. These offices operate as solicitors but the staff are employed by the Legal Aid Agency, rather than paid fees by the Agency.
In 2014, the scope of the PDS was expanded by the creation of PDS Advocates, described as “a team of 25 barristers and higher courts advocates including seven Queens Counsel with experience at every level of the criminal justice system [providing]… independent, high quality, professional advice and representation to accused persons throughout England and Wales.
“Amongst [the] team, [are] advocates who specialise in murder, fraud, historic and serious sexual offences, terrorism and Very High Cost Criminal Cases.
[The team] can be instructed to carry out work by any solicitors looking for representation for their clients in the Higher Courts of England and Wales [and] are able to operate nationally.”
This development occurred at a time when barristers were in significant conflict with the Ministry of Justice over rates of pay for criminal legal aid work and appears to have been a response to barristers refusing to take on some serious criminal trials.
For further details of the PDS go to http://publicdefenderservice.org.uk/
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 