A legal challenge by the Law Society of England and Wales to halt cuts which were heightening the looming crisis in the criminal justice system has been backed by the High Court.
In a strongly-worded judgment handed down today, the court quashed regulations implementing cuts to payments for document-heavy crown court cases. The verdict is important because evidence-dense cases are becoming the norm due to the prevalence of digital devices.
Law Society president Christina Blacklaws said: "This is a significant ruling. Criminal solicitors provide a vital public service. We have consistently warned that this fragile criminal legal aid market cannot stand further cuts.
"The changes to the Litigators Graduated Fee Scheme (LGFS) were introduced in December 2017 and have meant a huge amount of work on the most complex crown court cases has gone unpaid.
"Defence solicitors have faced earning up to 37% less for some large cases, yet the Legal Aid Agency has expected them to undertake precisely the same amount of work."
The High Court strongly criticised some of the arguments put forward by the Lord Chancellor, commenting: "It is difficult to express in language of appropriate moderation why we consider these arguments without merit. The first point, which should not need to be made but evidently does, is that consultees are entitled to expect a government ministry undertaking a consultation exercise will conduct it in a way which is open and transparent."
The court ruled the Ministry of Justice’s (MoJ) failure to disclose the statistical analysis underpinning the decision made the consultation unfair. That analysis was disclosed only during the course of the litigation.
Commenting on the methodology applied by the MoJ to justify the cut, Lord Justice Leggatt and Mrs Justice Carr DBE concluded that the calculation was “a flawed analysis on which no reasonable authority would have relied”. Their findings came in light of expert evidence - which the MoJ did not rebut - put forward by a leading academic commissioned by the Law Society.
Crucially, the judgment comes on the back of a hard-hitting Justice Select Committee report, which said cuts to criminal legal aid are tarnishing the reputation of the justice system and denying people basic legal advice when they most need it.
Christina Blacklaws said: “In the light of this ruling, we would urge the government to restart discussions to try to formulate a revised approach to the LGFS that will remunerate lawyers fairly for the work they have to do. We as the Law Society stand ready to help the government to this.
“We recently published new data showing that in 5 to 10 years’ time there could be insufficient criminal duty solicitors in many regions across England and Wales, leaving individuals in need of legal advice unable to access justice. These concerning statistics underline the need for reasonable payment for this challenging work.
“We are now considering the implications of the ruling for our members, and in the first instance we recommend that practitioners who have made relevant claims under the 2017 Regulations immediately apply for redetermination.”
Read our review of the key points from the judgment
Notes to editors
The court also made clear that the question whether a government measure impairs access to justice is a decision for the court, not the government, “as in any case where a rights violation is alleged”.
The government made the decision to implement the LGFS cuts on 24 October 2017, and they came into force on 1 December 2017.
The regulations meant the maximum number of pages of prosecution evidence served on a defendant that would count in calculating the solicitor’s fee for the case was reduced from 10,000 to 6,000.
Defence solicitors are facing multiple pressures in their efforts to ensure justice is served and have not received any fee increase since 1998. The slash to payments was putting access to justice in this country under even greater threat.
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.
Lord Justice Leggatt and Mrs Justice Carr DBE heard submissions from Blackstone Chambers' Dinah Rose QC, instructed by John Halford at Bindmans LLP representing the Society, and One Brick Court's Martin Chamberlain QC, representing the Lord Chancellor.
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