Criminal Legal Aid Review – An Accelerated package of measures amending the criminal legal aid fee schemes | Joe Mensah-Dankwah
The Black Solicitors’ Network (BSN) was formed in 1995 to promote the interests of black solicitors, to support and share information and to participate in consultations, initiated by the Law Society and other Government bodies, in relation to matters which affect black solicitors. Between 2003 & 2013, the BSN was recognised as a Law Society special interest group. We are a national organisation with branches in the City of London, Midlands and the North of England.
A not-for-profit company, we aim to be the primary voice of black solicitors in England and Wales. We are committed to achieving equality of access, and retention and promotion of black solicitors within the sector. BSN has a membership of over 4000 solicitors, trainees and students with a small number of paralegals and Legal Executives. BSN does not represent barristers. The membership is primarily comprised by lawyers of African/Caribbean descent but also many Asian lawyers.
- At the beginning of 2019, the Ministry of Justice began a comprehensive review of criminal legal aid fee schemes. This consultation relates to a decision taken to fast-track certain areas of the review, in the light of some pressing concerns which were identified early in the review, namely:
- how litigators and advocates are paid for work on unused material
- how advocates are paid for work on paper heavy cases
- how advocates are paid for cracked trials in the Crown Court
- how litigators are paid for work on sending cases to the Crown Court
- BSN along with the rest of the profession, welcome the Ministry’s commitment to working towards a solution to the current crisis in the availability of criminal legal aid to suspects and defendants. Sadly, the accelerated package comes as a disappointment.
Overall summary of equality impacts
- Naturally, the primary concern of BSN is the impact of the review result, in this
case, the accelerated package, on those of our membership engaged in criminal legal aid. The overall summary of equality impacts concludes that:
26. We therefore believe that our proposals are unlikely to result in any particular disadvantage for any groups who share protected characteristics.
- BSN disagrees that this is a fair evaluation of the situation on the ground. A high percentage of black, Asian and minority ethnic (“BAME”) solicitors work in criminal defence for historical reasons. Inevitably, any threat to the viability of the criminal defence system will disproportionately affect BAME solicitors and therefore our members.
- These interim proposals go nowhere near far enough to stem the impending catastrophe that seems to be looming in the provision of criminal legal aid. inevitably more firms will follow the high-profile collapses that have been reported recently, unless COVID-19 busting-style measures are applied to criminal legal aid. In the criminal legal aid sector, BSN members tend to run or work in small firms. We have not yet seen a mass decline of practices of our members. This is down to the resilience of the business model our members employ. Low overheads and a hands-on approach means that our members operate on zero profit margins, “just about managing” from year to year. Their practices do not collapse, they just hang on in there eking a hand to mouth existence.
- Of course, what that means is that they are no longer able to provide opportunities for training and employment to others of that demographic. No new blood is entering the market, as the Law Society’s heat map of duty solicitor demographics published in 2018 showed.
- When the criminal defence sector provided opportunities for BAME solicitors to find their voice and set up their own businesses, it also provided the wider community of BAME citizens a means of self-empowerment. BAME solicitors provide a voice for a section of the minority ethnic population who seem to find it easier to deal with people who share certain cultural perspectives. BAME firms provided a route to employment for many ethnic minority students and job applicants who would otherwise not have had a look in in the main stream legal sector.
- Owning their own businesses, and being in positions of management, has enabled many BAME solicitors to go forward in the professions; to apply for and occupy judicial and other roles which have previously been closed to BAME lawyers. Unless more money is injected into the work, many of our members will “die on the vine” and will not be replaced.
- BSN is happy to endorse the detailed response of the Law Society which we set out below:
Unused material – AGFS and LGFS
- Excluding guilty pleas, every Crown Court case that solicitors and advocates are involved in would be paid the equivalent of 1.5 hours’ work at special preparation rates for 0-3 hours reviewing unused material.
- Trials and cracked trial cases with more than 3 hours’ work spent reviewing unused material would be remunerated at the relevant special preparation rate. The reasonableness of the work undertaken would be subject to an assessment by the Legal Aid Agency (LAA).
Question One: Do you agree with our proposed approach to paying for work associated with unused material?
- Having a band of 1-3 hours seems reasonable as a starting position, but we do not agree with only paying for one and a half hours work when more time has been spent on the work, nor with using the existing rates for special preparation which are derisorily low. This proposal cannot work without an increase in rates for special preparation.
- We understand that the proposed rate is an amalgam of the different rates applicable in special preparation claims. If this is correct then it should be the highest rate available that is applied to these claims, given that it will be disproportionately more senior solicitors working on these cases.
- Special preparation is also administratively very complicated and often involves lengthy disputes with the LAA in order to obtain payment for work properly undertaken. For this reason many solicitors do not bother to use it as the process entails large amounts of unpaid work in discussions with the LAA.
- This proposal cannot work while the LAA has apparently unlimited discretion to refuse to pay for work done. There will need to be a significant change in approach on the part of the LAA, if the system is to be effective in paying fairly for the work solicitors have to undertake on cases.
- It is also costly for both firms and the LAA to have to undertake lengthy arguments over almost every claim, and we question whether this ‘culture of refusal’ on the part of the LAA is actually saving any money for the public purse, or could in fact be costing more in administrative costs. Even if it is saving money in the short term, its corrosive impact on the relationship between firms and the LAA, and the effect that has on solicitors’ willingness to continue undertaking this work, outweighs any short term benefits to the LAA.
- We are also concerned that the evidence base behind this proposal may be flawed. Defence practitioners have no incentive to spend much time considering the unused material, nor to record the amount of time spent on it, since they are not paid for it, so whatever data was obtained from defence solicitors may be unreliable.
- In addition, the evidence from the CPS file review may be flawed, given that the CPS fail to serve the unused material properly in many cases. We are aware that a number of serious cases have fallen through due to the failure of the CPS to serve the evidence.
Question Two: If you do not agree with our proposed approach to paying for work associated with unused material, please suggest an alternative and provide supporting evidence.
- For the above reasons we would prefer to see an hourly rate structure for payment rather than using special preparation.
- If there is to be an ‘escape’ after three hours work, then this should operate as a proper escape, with all the work done being included in the fee, not minus one and a half hours which remains unpaid.
- If a move to special preparation is retained, we think that this proposal would work better and would remunerate this work more fairly if there was another band above the three hours before it goes to special preparation.
- For the longer term, we are also unclear why PPE and unused material are treated differently. For the defence solicitor this is all evidence that they have to read. The whole point about unused is that it is only ‘unused’ for the prosecution, but the defence will need to go through all of it as it may contain evidence that is crucial to their client’s defence.
- We understand that at the inception of the LGFS, the time spent considering unused material was supposed to be built into the base fee. This was however based on claims data from 2005/2006, which is now 14 years old. Quite apart from this, the nature of evidence has undergone a massive transformation since then, with far more electronic evidence, and significantly higher volumes.
- It would make more sense and would simplify matters to just pay for ‘evidence’ – whether unused or PPE.
Paper heavy cases – AGFS
- Allow additional remuneration to be claimed for cases we consider to be ‘statistical major outliers’ in terms of the volume of PPE. We propose allowing cases access to special preparation if a set threshold for the volume of evidence is exceeded.
- Around 15% of this extra funding would go to HCAs rather than barristers.
Question Three: Do you agree with our proposed approach to paying for paper heavy cases? Please state yes/no and give reasons.
- This is not a question that has a clear ‘yes/no’ answer, and the proposal is not one on which we have strong views. We do have some concerns about murder cases which do not often fall within the paper heavy category but which should still be funded adequately.
- The same concerns apply regarding special preparation as with the unused material proposals; the rates are very low, and payment is always subject to LAA discretion, which often seems to err on the side of refusal.
Question Four: If you do not agree with our proposed approach to paying for paper heavy cases, please suggest an alternative and provide supporting evidence.
- As with the previous proposal, either an alternative payment structure to special preparation needs to be devised, or the LAA will need to reconsider how they assess claims in serious cases.
Cracked Trials – AGFS
- An increase in cracked trial basic fees to 100% of the brief fee (currently 85%); and expanding cracked trial fees to all cases that crack after the Plea and Trial Preparation Hearing (PTPH) (currently, only cases that crack in the final third of the time between the date on which the case is listed for trial and the first day of trial are eligible for a cracked trial fee).
- This means that all cases that are listed for trial and subsequently crack (for whatever reason) will be paid the same basic brief fee as the advocate would have been paid had the trial gone ahead.
Question Five: Do you agree with our proposed approach to paying for cracked trials under the AGFS? Please state yes/no and give reasons.
- We do not disagree with paying 100% of the trial fee for a cracked trial under the AGFS, but this proposal makes no sense unless the litigator can also claim 100% of the trial fee.
- There is no logic in the proposal that this uplift should be applied only to the AGFS and not to the LGFS. The litigator will always have prepared 100% of the case, as it arrives with the advocate fully prepared for trial, given that at the time of preparing the papers the litigator will be unaware of any likelihood of the case cracking.
- The advocate on the other hand may have only partly prepared the case if it cracks at an early stage. If it cracks before the first hearing, the litigator – who has fully prepared the case – will be left unpaid for a significant amount of the work they have undertaken. In a serious case this could represent a loss of over £20,000 for the litigators’ firm, yet under this proposal the advocate – who may not even have attended one hearing – will be paid the full trial fee.
- Question Six: If you do not agree with our proposed approach to paying for cracked trials under the AGFS, please suggest an alternative and provide supporting evidence.
- If it is proposed that the advocate in the case is able to claim 100% of the trial fee then quite clearly the same logic should apply to the litigator.
- We welcome the commitment to looking at the LGFS payments in relation to cracked trials as part of the wider review, however this will do nothing to help our members now, given the reporting date for the full review appears to be many months away, and it will be at least 12-18 months before our members start to see even the first trickle of additional payments from the recommendations of the final report.
- We do not accept the MoJ’s assertion that it would be too complicated and time consuming to examine data on LGFS claims in order to work out the cost of making the same change to the LGFS as part of the accelerated items work. The MoJ already holds all of the data relating to the LGFS, which is in fact simpler than the AGFS, where the advocate is currently paid different amounts according to what stage the trial cracks.
- We suggest that if this clear inequity really cannot be resolved as part of this consultation, it could be looked at as part of any consultation on the proposals for payment for early disclosure, or as part of an ‘Accelerated Items Mark 02’ paper. We have expanded on this in our conclusion below.
- The MoJ propose to pay for the ‘additional new work’ that was not historically included within the remuneration under the LGFS.
- The MoJ propose an addition in LGFS fees equivalent to 2 hours worth of work in the magistrates’ court (£45.35 (excluding VAT) per hour) to cover the additional work.
Question Seven: Do you agree with our proposed approach to paying for new work related to sending hearings? Please state yes/no and give reasons.
- We do not accept the proposition that solicitors should only be paid for the ‘new work’ that has arisen since the fee was removed. It is palpably untrue that the removal of the fee was justifiable on the grounds of the work involved or that it was already included in the LGFS.
- The work in the magistrates’ court on cases which went to the Crown Court was never included in the LGFS, not least because at the time the LGFS was designed, cases were committed to the Crown Court and there was a category of fee in the magistrates’ court for such cases.
- When committals were abolished the fee disappeared and was replaced by a fixed fee bolt on to the LGFS of £318 for sendings. At that point this fee was considered correct for the work being done.
- The sending fee was removed entirely in 2011 as part of a series of general cost-saving cuts, and not because the work was no longer required. Indeed nothing in the work had changed to justify that cut, and nothing has changed since then with regard to the tasks required, except that additional work is now required on top of this.
- Since 2011 solicitors have thus not been paid for any of the essential work that is required to be undertaken in the magistrates’ court before a case is sent to the Crown Court. Being paid for this work was the rationale for re-instating a fee for the work done in the magistrates’ court.
- Annex A sets out the detail of the work undertaken in sendings. There can be a huge amount of time spent and work involved in sendings, which in some cases can amount to an entire day, for example bail applications. New work such as advice on credit for early guilty plea also increases the time spent on these hearings.
- The suggestion that just two hours work is normal in such cases is highly unrealistic. We were not asked during the pre-consultation period to set out the detailed work involved, however had we been asked we could easily have provided this information.
- There is no explanation in any of the documents as to how the two hour timeframe was arrived at, although in meetings we were told by the MoJ that the PDS was asked their view. We are somewhat surprised that the practitioner groups were not asked whether or not they agreed with this figure.
Question Eight: If you do not agree with our proposed approach to paying for new work related to sending hearings, please suggest an alternative and provide supporting evidence.
- The fee of £318 should clearly be the starting point for any new fee, with the extra work that solicitors now undertake and inflation taken into account on top of this. During our discussions with the MoJ a fee of £500 was proposed by the representative bodies for this work, which we continue to believe to be an appropriate amount.
- The evidence for this is in Annex A.
- We understand the reasons why the MoJ could not include a proposal for payment for pre-charge engagement in this package. It is important to note however that any payment for consideration of early disclosure would not represent an additional payment for solicitors, as this is new work which is not currently being undertaken. Any fee for this work therefore would simply be a payment for the new work required to be undertaken.
- Unless adequate remuneration is offered for this new work, this could even constitute a loss and not a benefit to firms. Being asked to do more work at rates that are already loss-making will simply have the effect of increasing the scale of the losses. Judging by the rates being offered in this consultation this is of real concern to practitioners.
- The Attorney General’s consultation on this work says that it is “not envisaged that pre-charge engagement will take place in many cases” and it is therefore unlikely to represent a significant amount of money from the legal aid fund in any case.
Question Nine: Do you agree with the assumptions and conclusions outlined in the Impact Assessment? Please state yes/no and give reasons. Please provide any empirical evidence relating to the proposals in this document.
- As we have pointed out above, we do not agree with a number of the assumptions made in the paper, including:
- As explained above in response to question 7, we are concerned that the evidence base behind this proposal may be flawed. Practitioners do not generally record the time spent on considering unused material since it is not paid for, so there is a possibility that the assumptions made with regard to the time involved in this work may be an underestimate. This is borne out by the statement that ‘the majority of cases in the sample generally contained low volumes of unused material’, which we find surprising.
- Paragraphs 30 and 31: Providers already spend a significant amount of unpaid time in disputes with the LAA simply in order to get paid for the work they have done. If the current system is to be extended to claims for consideration of unused material this will only add to the additional costs that they will have to incur in order to recover the money owed to them
- We have made clear to the MoJ that a significant amount of work is involved in these hearings, however we were not asked to provide an estimate of how much time is involved for the purposes of this consultation paper. Had we been asked, the time estimate could have been more accurate.
- Instead the two hour estimate for the work on sendings was apparently provided by the PDS, who are paid a fixed salary and so do not have any interest in ensuring that the fees for specific items accurately reflect the work involved.
Question Ten: From your experience are there any groups or individuals with protected characteristics who may be particularly affected, either positively or negatively, by the proposals in this paper? We would welcome examples, case studies, research or other types of evidence that support your views.
- There doesn’t appear to be a very accurate or detailed assessment of the impact of the proposals on BAME lawyers, who often serve specific communities. There can be additional pressures arising from this as a result of language barriers and the need to use interpreters, which takes additional time.
- This also applies to anyone dealing with clients with mental health issues, or child/youth clients.
- In any system where work is paid by fixed or graduated fees, this inevitably means that solicitors dealing with such clients will be paid proportionately less in relation to the work required than when undertaking work for other clients. The fee is the same for clients with protected characteristics, however the time taken to deal with their cases is much longer.
Question Eleven: What do you consider to be the equalities impacts on individuals with protected characteristics of each of the proposals? Are there any mitigations the government should consider? Please provide evidence and reasons.
- The impacts of all of the proposals on those with protected characteristics is likely to be the same as with other legal aid work. As long as practitioners have to continue undertaking work for unsatisfactory fees, and with no uplift for the longer time taken to deal with these clients, the higher the risk is that these clients will find it harder to access justice. Financial pressures on firms are such now that they will have to make difficult choices about the work that they take on.
- To the extent that those with protected characteristics are disproportionately represented within the criminal justice system, this will therefore have a disproportionate effect. For example, given that BAME people are over-represented among defendants, BAME people will be disproportionately disadvantaged by any decline in the quality or availability of criminal defence services.
- In terms of mitigation, we have proposed below that an uplift is introduced for clients with mental health issues and disabilities; youth court work, and clients requiring an interpreter. This would ensure that these very vulnerable clients are able to access justice as easily as anyone else.
Conclusion and alternative proposals
- We have already set out in this response why criminal defence practitioners urgently need a real injection of funds to sustain the availability of criminal legal advice until the end of the main review, and why the current proposals simply do not do this.
- Given the delay already experienced in the timetable for the main review, and the likelihood that it will now report later than summer 2020 as planned, we believe that it would be beneficial for the MoJ to consult on a second phase of ‘accelerated items’ proposals ahead of the final report stage.
- There will presumably need to be a further consultation on any proposals for pre-charge engagement arising from the Attorney General’s review. This could be used as an opportunity to rectify some of the imbalance in this consultation, such as the inequity between the AGFS and LGFS in respect of cracked trials.
- It could also be used to take forward proposals which do not require the extensive data collection planned in order to undertake the longer term work on sustainability.
- The following would be of real benefit to our members, and we invite the MoJ to consider these if not as an alternative to the proposals in the consultation paper, as proposals for inclusion in an ‘Accelerated Items mark 02’ consultation paper:
- Paying litigators as well as advocates 100% of the trial fee in cracked trials;
- An across the board uplift for police station work;
- A fee structure that incentivises senior solicitors to attend the police station in the most serious cases, with realistic escapes;
- An uplift for representing under-18s;
- Consideration of re-introducing payments for travel and waiting. Court closures have increased travel times for many solicitors, and waiting times have also increased due to inefficiencies in the court system. These are costs that firms have to bear themselves and somehow cover out of fees that have not increased in over 20 years.
- Payments on Account for any approved disbursements in Appeals and Review cases. This is an anomaly that could be resolved very easily, as payments on account are allowed in all other work, however the Standard Crime Contract at 11.41 provides no mechanisms for payment until end of the case in Appeals & Reviews and related advice.
- We have previously raised this with the LAA who acknowledged that it was inconsistent and should be addressed. Solicitors undertaking these cases sometimes have to wait for years until the end of the case in order to be able to pay experts they have instructed. As a result some are now finding that certain experts refuse to work for them.
- An uplift for dealing with vulnerable clients; clients with disabilities, and those whose first language is not English and therefore an interpreter is required. It can often take at least twice as long to deal with these clients. Vulnerable people are being adversely affected by the Ministry’s failure to recognise their needs and the additional time needed by the solicitors who represent them. This raises equality issues that may be actionable.
Director, Black Solicitors Network