Early disclosure plans could fail before they begin

The Ministry of Justice is being urged by the legal profession to think again on early disclosure plans or risk them failing before they even begin.

Groups representing the criminal defence community, including the Law Society of England and Wales, have written to the Lord Chancellor calling for restrictions on payments to solicitors for pre-charge engagement with police or prosecutors to be lifted.*

The purpose of the new scheme – which comes into force today (7 June 2021) – is to make it easier for the defendant or their solicitor to bring information that may assist the defendant’s case to the attention of police and prosecutors, so that cases can be dropped quickly where appropriate.**

“The rationale for this scheme is sound but defence solicitors were assured they would be paid for the additional work it entails,” said Law Society president I. Stephanie Boyce.

“That work necessarily includes getting instructions from the client, examining relevant evidence and advising the client whether or not to take part in pre-charge engagement.

“However, solicitors will not be paid for this preliminary work as, under the scheme the Ministry of Justice has devised, payments will only kick in if and when they begin engaging with police or prosecutors, and only for work done after that point.

“Opportunities to save money by bringing cases to an early close will inevitably be missed because hard-pressed defence practitioners simply cannot take on even more unpaid work. This would have adverse financial consequences for the police, prosecutors and the overburdened courts.

“The Ministry of Justice urgently needs to think again or there is a danger the pre-charge engagement scheme will fail before it even begins.”

The letter to the Lord Chancellor also highlights the low hourly rates available to defence practitioners in the new scheme.***

“Restrictions on payment to defence solicitors for pre-charge engagement should be lifted, so they are paid for advising suspects on this important new area of work,” added I. Stephanie Boyce.

“We also hope that the rates paid are substantially increased following the Criminal Legal Aid Review in order to ensure that such work is financially viable.”

Notes for editors

  • * Pre-charge engagement is a voluntary process of engagement between the parties to an investigation. It can take place any time after the first interview under caution, and before any suspect has been formally charged. It can be initiated by an investigator, a prosecutor, the suspect’s representative or an unrepresented suspect.
  • ** The introduction of the new regulations by the Ministry of Justice follows a 2018 review of disclosure by the attorney general.
  • *** The hourly rates are £51.28 in London, £47.45 outside London.
  • The letter was signed by the Big Firms Group, Black Solicitors Network, Criminal Law Solicitors’ Association, the Law Society of England and Wales, Junior Lawyers Division of the Law Society, London Criminal Court Solicitors’ Association, Legal Aid Practitioners Group, Society of Asian Lawyers, Young Legal Aid Lawyers, and Solicitors Association of Higher Court Advocates.

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