Ministry of Justice Criminal Legal Aid Review - JLD position on recent proposals

The numbers of criminal defence solicitors are rapidly declining and the numbers of junior solicitors in this area are almost non-existent.

This leaves the general public at risk of not having access to justice, with victims and the accused being left in limbo.

The proposals

As part of a wider Criminal Legal Aid Review (CLAR), on 23 July 2019, the plan for accelerated work was announced. The accelerated items are a number of proposals supposed to bring urgent help for the system now and include:

  1. unused material
  2. cracked trials in the Crown Court
  3. how advocates are paid for paper heavy cases
  4. early engagement by defence practitioners (i.e. pre-charge advice)
  5. payment for sending cases to the Crown Court

It was expected that the accelerated work would report by November 2019, with the main review continuing in the background as planned.

This was delayed by the announcement of the general election in October 2019.

Our view

On 28 February 2020, the Ministry of Justice (MOJ) published four out of its five promised accelerated items. However, not only are these proposals four months overdue, but they offer very little to our sustainability crisis.

In relation to the unused material item specifically, the proposal states that solicitors and advocates would be paid a fixed fee, which is the equivalent of one and a half hours’ work, for zero to three hours spent reviewing unused material.

The fee for solicitors will be £64.68 for one and a half hours' work (or £43.12 per hour). This rate is inadequate and simply offensive to the professionals that deliver criminal legal aid on a daily basis.

We also note that the MOJ propose an additional fee on top of the Litigators’ Graduated Fee Scheme (LGFS) fee, equivalent to two hours’ worth of work in the magistrates’ court, to cover the additional work done ahead of sending cases to the Crown Court.

However, when the committal fee was abolished in 2011 (with no valid case for its abolition), it stood at around £318, compared to the £90 now proposed.

Given solicitors are regularly advising on plea and credit at a much early stage, compounded by the fact there was no justification for its abolishment in the first place, it is concerning that the MOJ propose a rate well below what it previously attracted.

The Junior Lawyers Division cannot accept these proposals.

As our criminal justice and criminal legal aid system continues to be unfunded, there is a real risk the fairness of a criminal trial is cast into further doubt. Justice will be denied.

We urge the MOJ to rethink its interim proposals and inject much needed financial relief into a system on the brink of extinction.

Next steps

The MOJ has now opened a four-week consultation seeking opinion on the accelerated items.

This consultation will close on 27 March 2020.

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