Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Posts Tagged ‘criminal legal aid

Paying for criminal defence advocacy

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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

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Written by lwtmp

January 23, 2017 at 12:03 pm

Criminal legal aid changes – recent decisions

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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/

 

Written by lwtmp

February 10, 2016 at 6:45 pm

What is happening to legal aid: podcast with Ruth Wayte

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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

Written by lwtmp

March 3, 2015 at 4:58 pm

Public defender service – expansion

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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/

Written by lwtmp

September 26, 2014 at 11:44 am

What has happened to Legal Aid?

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The big changes to the legal aid scheme, designed to cut public expenditure on legal aid, were introduced in April 2013, following enactment of LASPO 2012.
The first Annual Report of the Legal Aid Agency has now been published. This provides more information on the direct impact this has had on the amount of legally aided work that has been undertaken in the first 12 months since the Act came into effect.

In summary:

• Total acts of assistance and spend – The LAA continued to fund advice, assistance and representation for eligible individuals across England and Wales by funding 1.8 million acts of assistance overall (Civil Legal Aid and Criminal Legal Aid). [2012-13: 2.3 million]. Total net expenditure was £1,709.5 million. [2012-13: £1,916.7 million].
• Number of providers – As at 31 March 2014 the LAA held 1,435 civil and 1,519 crime contracts [March 2013:1,899 civil and 1,599 crime contracts].
• Civil Legal Aid – The LAA funded 0.50 million Civil Legal Aid acts of assistance overall [2012-13: 0.93 million, a 46% decrease in the year]. Civil Legal Aid net expenditure was £800.9 million [2012-13: £941.6 million].
• Criminal Legal Aid – The LAA funded 1.32 million Criminal Legal Aid acts of assistance [2012-13: 1.36 million, a 3% decrease in the year]. Criminal Legal Aid spend was £908.6 million [2012-13: £975.1 million].

What these figures show is the dramatic impact the cuts in Legal Aid have had on civil legally aided matters. There have been huge falls, both in the numbers of acts of assistance, and in the numbers of those with civil legal aid contracts with the Legal Aid Agency. By comparison, criminal legal aid has suffered less, though well publicised actions in particular by the Bar indicate that the fees payable for legally aided work in crime have been subject to considerable constraint.

Lawyers will of course deplore these trends. But it has to be said that there is no indication of any political will to restore funding to the legal aid scheme. This appears to be the start of a new reality, a context in which rather different forms of service delivery to the public will have to be devised.

The LAA Annual report is available at https://www.gov.uk/government/publications/legal-aid-agency-annual-report-and-accounts-2013-to-2014

Written by lwtmp

July 31, 2014 at 10:09 am

Further reforms to legal aid

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At the end of February, the Government announced its latest plans for reforming the legal aid scheme. The focus is centrally on criminal legal aid. The main driver remains cutting public expenditure on legal aid.

The latest proposals focus on three key elements:

1 Reducing the fees paid for services provided under the criminal legal aid scheme. Under the latest proposals, the cuts will impact more severely on more established practitioners (on average a 6% reduction) with a reduced impact on junior members of the criminal bar. The Government has undertaken to review the effect of these changes in 12 months time. There will also be a further reduction in solicitors’ fees of 8.25% which takes effect in March 2014. Again the Government has undertaken to review the impact of this change in summer 2016.

2 Recognizing the business impact that these cuts will have on practitioners, the latest paper suggest that the Government is prepared to provide some assistance to firms to restructure themselves and to develop business models more viable in the new tougher economic climate. This will include providing specialist help and guidance on where further financial help could be available to lawyers who need access to finance to help restructure their businesses. It will be very interesting to see whether this initiative simply gets up the noses of practitioners and makes them even more dissatisfied; or whether there will be practitioners who can see that new ways of doing things could be more cost effective and enable them to make money as well as deliver a service to the public.

3 Potentially the most interesting aspect of the latest announcement is that there will be a review of procedure in the criminal justice system to see ho far pre-trial steps can be taken without requiring the attendance of practitioners in court. This could help to drive out some waste.

Debate about how legal aid will continue to be a battle between government and practitioners. My own view is that there is no likelihood of return to the funding levels that existed before the current cuts were introduced. Lawyers committed to delivering legal services to the public will continue to be challenged to offer those services in different and more cost-effective ways.

For the text of the Government response to consultation see:
https://consult.justice.gov.uk/digital-communications/transforming-legal-aid-next-steps and click on Government Response to Consultation.

Written by lwtmp

March 3, 2014 at 10:44 am