A legal challenge has been launched by the Law Society of England and Wales in a bid to halt cuts to fees paid to criminal defence lawyers.
“After decades of legal aid cuts by successive governments we have no choice but to act against an arbitrary cut that will do little if anything to drive down the legal aid bill - but could have a very detrimental impact on justice,” said Law Society President Joe Egan.
The government’s decision to implement changes to the Litigators Graduated Fee Scheme (LGFS) came on 24 October - despite clear warnings from a range of firms and organisations including the Law Society.
Under this change, payments will be slashed for paper-heavy crown court cases - the number of pages of prosecution evidence served on a defendant that their lawyers will be able to claim against is to be reduced from 10,000 to 6,000.
“We believe this will have a dramatic effect on criminal legal aid solicitors and barristers who are already barely scraping a living as they try to ensure a fundamental part of our justice system is upheld - that anyone, regardless of means, is entitled to a proper defence when accused of a crime,” said Joe Egan.
“What this means is that the defence in complex trials will be hit by a substantial cut. We believe this is unlawful, and that’s why we’re taking the government to the High Court.”
A pre-action protocol letter for judicial review to challenge the Ministry of Justice’s decision to shrink payments has been sent to the lord chancellor.
“The criminal legal aid market has been placed under siege by successive governments and it cannot stand any further cuts,” Joe Egan added.
“Justice is under threat and it is with great regret we are having to take this step. However, we are resolute.”
The rationale for the changes is that more pages of evidence are now being served by the Crown Prosecution Service (CPS), and average costs per case are increasing.
The reality is that rates for less complex cases in the crown courts are now so low that firms doing this work have been making a loss.
Often solicitors have been cross-subsidising this work with funding from bigger cases so they can represent vulnerable people accused of wrongdoing.
Joe Egan said: “The impact of the fee-cut of 8.75% in March 2014 has not yet been assessed - either on the sustainability of legal aid firms or on the savings it has brought to the government.”
Further savings are set to be made in the future from a wide-ranging courts and tribunals reform programme and other initiatives.
The savings from these initiatives must be taken into account before potentially damaging cuts are made to solicitors’ fees.
Notes to editors
- More pages of evidence are being served by the CPS because cases are now more complicated. Terror cases, fraud cases and serious historic sex cases require a large amount of work, for which solicitors should be paid.
- Defence solicitors have not received any fee increase since 1998. For some cases the level of remuneration under legal aid allows them to do no more than first aid. That is far from a world class justice system.
- The Ministry of Justice received a total of 1,005 responses to its consultation on the LGFS reforms and the views expressed were almost entirely against the proposals.
- In June 2017 the Law Society issued a practice note to legal aid solicitors specialising in criminal law reminding them that they can exercise their discretion when deciding to accept cases if the work threatens the viability of their firm.
- The pre-action protocol letter can be shared if journalists wish to request a copy from the press office.
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