Criminal Legal Aid Review package – summary of Law Society response
On 28 February 2020, the Ministry of Justice launched a consultation on an accelerated package of measures amending the criminal legal aid fee schemes, as part of the Criminal Legal Aid Review.
We believe that the proposals are insufficient to match the scale of the problem facing the criminal legal aid profession.
The MoJ closed this consultation on 17 June 2020.
Read our response (PDF 460KB)
Our key concerns about the inadequacy of the proposals are also summarised below.
In addition we submitted a supplementary response (PDF 173KB) in which we raise concerns about:
- the reduction in the value of the package due to the drop in activity in the system following the coronavirus outbreak
- the even more urgent need for additional support for legal aid solicitors
a) Unused material
- Excluding guilty pleas, every Crown Court case that solicitors and advocates are involved in would be paid the equivalent of 1.5 hours’ work at special preparation rates for 0–3 hours reviewing unused material
- Trials and cracked trial cases with more than three hours’ work spent reviewing unused material would be remunerated at the relevant special preparation rate. The reasonableness of the work undertaken would be subject to an assessment by the Legal Aid Agency (LAA)
In response to question 1:
- Having a band of 1–3 hours seems reasonable as a starting position, but we do not agree with using the existing rates for special preparation which are derisorily low. This proposal cannot work without an increase in rates for special preparation
- Special preparation is also administratively very complicated and often involves lengthy disputes with the LAA in order to obtain payment for work properly undertaken
- For this reason many solicitors do not use it as the process entails large amounts of unpaid work in discussions with the LAA
In response to question 2:
- For the above reasons we would prefer to see an hourly rate structure for payment rather than special preparation
- We think that this proposal would be more effective and would remunerate this work more fairly if there was another band above the three hours before it goes to special preparation
b) Paper heavy cases – Advocates’ Graduated Fee Scheme (AGFS)
- Allow additional remuneration to be claimed for cases the MoJ considers to be ‘statistical major outliers’ in terms of the volume of pages of prosecution evidence (PPE). The MoJ proposes allowing cases access to special preparation if a set threshold for the volume of evidence is exceeded
- Around 15% of this extra funding would go to higher court advocates (HCAs) rather than barristers
In response to question 3:
- This is not a question that has a clear ‘yes/no’ answer. We think that this will impact our HCA members differently depending on where they are geographically, and we would like to hear from members how they think this will impact them
- We also have some concerns about murder cases which do not often fall within the paper heavy category, but which should still be funded adequately
- The same concerns apply regarding special preparation. The rates are too low, and payment is always subject to LAA discretion, which often seems to err on the side of refusal
c) Cracked trials – AGFS
- An increase in cracked trial basic fees to 100% of the brief fee (currently 85%); and expanding cracked trial fees to all cases that crack after the Plea and Trial Preparation Hearing (PTPH) (currently, only cases that crack in the final third of the time between the date on which the case is listed for trial and the first day of trial are eligible for a cracked trial fee).
- This means that all cases that are listed for trial and subsequently crack (for whatever reason) will be paid the same basic brief fee as the advocate would have been paid had the trial gone ahead.
In response to question 5:
- We do not disagree with the proposal to pay the advocate 100% of the trial fee, however there is no logic to the proposal that this uplift should be applied only to the AGFS and not to the Litigators' Graduated Fee Scheme (LGFS)
In response to question 6:
- The litigator will always have prepared 100% of the case, as it arrives with counsel fully prepared for trial, so there is no reason why the litigator should not also be paid 100%
- If it is proposed that the advocate in the case is able to claim 100% of the trial fee, the same logic should therefore apply to the litigator
d) Sending cases
- The MoJ proposes to pay for the “additional new work” that was not historically included within the remuneration under the LGFS
- The MoJ proposes an addition in LGFS fees equivalent to two hours’ worth of work in the magistrates’ court (£45.35 (excluding VAT) per hour) to cover the additional work
In response to question 7:
- We do not accept the proposition that solicitors should only be paid for the “additional work” that has arisen since the fee was removed
- When committals were abolished the fee disappeared and was replaced by a fixed fee bolt on to the LGFS of £318 for sending cases. At that point this fee was considered correct for the work being done
- The sending fee was cut in 2011 as part of a series of general cost-saving cuts, and not because the work was no longer required, or because it was already included in the LGFS. This is not true.
In response to question 8:
- The suggestion that just two hours’ work is normal in such cases is highly unrealistic. The fee of £318 should clearly be the starting point for any new fee, with the extra work that solicitors now undertake, and inflation, taken into account on top of this
- We will provide the MoJ with evidence of the work required in these cases. It would be helpful if practitioners could also provide examples of their own cases that show why two hours’ work is unrealistic
Equalities impact assessment
Consider the equalities impact assessment and the accompanying annexes, and provide your views in response to questions 9 to 11.