Concerns over the sustainability of the fragile criminal legal aid sector in England and Wales have forced the Law Society to prepare to launch a High Court challenge against cuts to criminal defence fees.
A pre-action protocol letter for judicial review to challenge the Ministry of Justice’s (MoJ) decision to shrink payments for cases in the crown court will be issued shortly.
Law Society vice-president Christina Blacklaws said: “The Law Society has consistently warned that this fragile criminal legal aid market cannot stand any further cuts. Any more will put access to justice in this country under even greater threat.
“We now have no choice but to take this significant step.
“The relatively minor savings that might be obtained from these ill-advised cuts do not warrant the substantial damage they could cause.”
Under the MoJ plans, payments will be slashed for paper-heavy crown court cases. The rationale is that more pages of evidence are now being served by the Crown Prosecution Service (CPS), and that 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.
Christina Blacklaws added: “These cuts are a quick-fix, money-saving solution. They are untenable, highly counter-productive and short-sighted. The legal action we are announcing today is a move forced on us – it is not a route we would have chosen.
“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 Litigators’ Graduated Fees Scheme (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.
See the press release
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