Crumbs from the table
The government reckons £50m could be on offer for criminal legal aid lawyers after unveiling the first tranche of proposals since commencing a review of fee schemes over a year ago, as reported by the Law Society’s Gazette.
Lord Chancellor Robert Buckland QC said the proposals were an ‘important first step towards reviewing sustainability in the long term, ensuring fair fees, and delivering value for the taxpayer’. Under the reforms, litigators and advocates would be paid the equivalent of 1.5 hours for up to three hours spent reviewing unused material disclosed to the defence.
For those cases where more than three hours is spent, payment would be at hourly rates equivalent to the existing special preparation hourly rates for litigators and advocates. Advocates would be paid extra in cases involving an unusually high amount of evidence, based on pages of prosecution evidence.
‘From my own lengthy time at the criminal bar, where my defence practice overwhelmingly consisted of criminal legal aid cases, I know about the hard work, energy and commitment required to prepare and present cases in court, and to ensure that the client fully understands the process,’ wrote Buckland; adding that his proposals represented ‘an additional £32m-£50m for criminal legal aid’ with the additional funding ‘broadly split evenly’ between solicitor firms and barristers.
He went on to say that they would also consider hourly rates ‘as part of the fuller review, particularly in the context of the sustainability of the wider market’. ‘I recognise that there is much more for us to do,’ he continued. ‘These discrete areas represent a first step towards the fuller review, which will focus on the sustainability of the whole criminal legal aid system.’
‘This is the first time in about 25 years that the MoJ has agreed to pay additional money to solicitors,’ responded Richard Atkinson, co-chair of the Law Society’s criminal law committee. ‘Indeed, it is only 18 months since we fought off yet another £30 million cut via our judicial review. For that, the MoJ must be given some credit. But it is hardly surprising if a starving man reacts angrily when someone very precisely and deliberately doles but a single crumb to him.’
The situation was not been helped by ‘the fact that one of the three priority areas being looked at in the litigators’ scheme has not been able to proceed’, Atkinson said. ‘It had been expected that additional payments arising out of the attorney general’s review of disclosure would form part of this package. But publication of the findings of that review have been so far delayed. Nothing for solicitors there.’
According to Atkinson, these proposals are worth ‘around £20 million for solicitors and £20 million for barristers’’. The MoJ argues that this is fair. But the £20 million for barristers equates to an increase of around 10%, whereas the £20 million for solicitors amounts to 2-3%… . But to return to my opening analogy, it is hardly a surprise if a starving man who is allocated a single crumb feels doubly aggrieved when another starving man is given a whole slice of bread.’
Amanda Pinto QC, chair of the Bar Council,called the proposals ‘a modest, stop-gap improvement in specific areas of criminal defence fees’. ‘This is a welcome, first step, as the Lord Chancellor acknowledges, in recognising the crucial role of defence legal practitioners to the delivery of justice in an increasingly complex and onerous system,’ she said.
Welsh legal aid
The Legal Aid Agency received only one application for criminal legal aid in Welsh in a year, reported the Gazette. ‘Every year the agency submits a Welsh Language Scheme report to the Welsh Language Commissioner after adopting the principle that, in the conduct of business, the English and Welsh languages would be treated equally… . The criminal legal aid application process includes an online Welsh language application form. However, in the year up to 31 March 2019, only one application was submitted in Welsh.’
A quiet revolution
‘We are in the midst of a quiet revolution in our courts,’ wrote John Bache, chairman of the Magistrates Association for the Times. ‘Half of all magistrates‘ courts, which deal with more than 90 per cent of all criminal cases, have closed in the past decade. At the same time, an ambitious court reform programme has been launched.’
The plan, which will cost £1.2 billion and take seven years to complete, is intended to make justice more accessible and more efficient, he continued. ‘Few would dispute that modernisation of the justice system is much needed and long overdue… . But will the drive for greater efficiency have unintended consequences, compromising fairness in the rush to reduce costs?’
‘Justice should also be universally available. Unfortunately, when sacrifices are made in the name of efficiency it is often the most vulnerable in society who are most likely to suffer, including the digitally excluded and those who are more reliant on public transport to travel long distances to court. Particularly in rural areas with less reliable or frequent public transport, it is often impossible to arrive at court on time and there is a real risk that defendants and victims will need to travel on the same bus or train to get there. Access to legal aid has also been cut, making it more difficult for those who cannot afford to pay for it themselves to get proper representation.’
John Bache, Magistrates Association
Forensics on ‘a knife edge’
Less than a third of crime scene investigators meet the required standard to carry out even straightforward crime scene work, wrote Elizabeth Norton for the Justice Gap. In its annual report published, the forensic science regulator identified ‘a significant gap’ between the standards expected and compliance and called urgently for legislation to improve standards.
‘The reality is that forensic science has been operating on a knife-edge for years, with particular skills shortages in digital forensics and toxicology,’ commented the regulator Dr Gillian Tully. Last year, she warned that the risks faced by forensics were ‘close to existential’. ‘It is important that our ability to use science effectively in the criminal justice system does not lag behind technologically-enabled criminals. Quality is not optional,’ she said yesterday.
Tully said that ‘all forensic science must be conducted by competent forensic scientists, according to scientifically valid methods’ but also, ‘quality does not exist in a vacuum’.This year she recognised that the cost of such a system was ‘not insubstantial’ and that there was a serious problem with implementing a standard for case review work that was primarily funded by the LAAas providers who adopt a quality standard would be placed at a competitive disadvantage.
According to regulator: ‘Solicitors are generally required to award work to the provider offering the lowest quote for the work; this takes no account of any formal quality assurance mechanism.’
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