A boycott of cases by criminal defence solicitors over 75% fee cuts could leave victims of domestic violence at risk of being cross-examined by their alleged abusers or see cases are abandoned or adjourned.
This would be a huge embarrassment for the prime minister, Theresa May, who this month launched a consultation on new laws to improve the protection given to domestic violence victims and who has made the issue a personal priority.
Criminal solicitors around the country are attending meetings this week to consider their response to the latest legal aid cuts announced by the Ministry of Justice.
The Litigators’ Graduated Fees Scheme and Court Appointees Consultation Paper, proposes slashing the fees paid to court appointed lawyers in circumstances where a defendant is barred from cross-examining witnesses and complainants under section 38(4) of the Youth Justice and Criminal Evidence Act 1999 (‘s38’).
Section 4A of the Criminal Procedure (Insanity) Act 1964 makes the same provision where a defendant has been found unfit to stand trial.
The majority of s38 cases concern charges involving domestic violence. Last week, lord chancellor and justice minister, Liz Truss announced a Prison and Courts Bill, that would allow for the same practice to be implemented in family courts.
But the ministry’s consultation undermines that protection in the criminal courts by reducing the fees paid to lawyers to the extent that it is no longer financially viable for them to take on the work.
Court appointed lawyers are paid from central funds at a private rate determined by the criminal cases unit of the Legal Aid Agency, (formerly the National Taxing Team), which reflects the amount the government believes the work costs.
That rate is currently £318 an hour in London (£217 in the provinces), but the ministry is seeking to cap the costs at the legal rate of £48 an hour. It says the work is no different to that undertaken by lawyers acting for a defendant under legal aid and there is ‘no reason to pay a premium’ for it and estimates the change and save £6-8 million a year.
At the same time, the ministry is seeking to save £26-36 million by cutting the payments made in Crown Court cases under the Litigators Graduated Fee Scheme. The cuts come less than a month after the MoJ published proposals that will see QCs’ fees rise by 10% at the expense of other criminal advocates.
Fees under the scheme, which was introduced in 2008, are determined by a formula that uses proxies for complexity, including the number of Pages of Prosecution Evidence served (PPE), the offence and the trial length.
Every page (up to the 10,000 cap) increases the graduated fee. If there are more than 10,000 pages, providers can apply, under the ‘special preparation’ provisions, for an additional discretionary payment, paid at an hourly rate.
The ministry wants to reduce the 10,000 threshold for PPE and move claims for pages in excess of 6,000 into the special preparation provisions.
It states that between 2013-14 and 2015-16 LGFS expenditure rose from £292m to £341m (around 17%), and, while the number of cases hitting the 10,000 PPE threshold tripled, the proportion of claims for special preparation fell.
In 2015-16 special preparation was paid in around 20% of cases with over 10,000 pages, which the ministry claims, indicates that greater PPE does not necessarily increase the amount of work done, and therefore should not increase the fee.
An added impetus for the cut was given by the decision of a costs judge in R v Napper  5 Costs LR 947, which broadened the scope of what was considered as PPE to what the ministry claims ‘went beyond the original policy intention’.
While the consultation says that the current scheme is ‘out of date’ in the increasingly digital world it does nothing to address how digital evidence is dealt with.
Nonetheless, it says the reforms will ensure ‘fair payment for the work done’, provides more certainty for litigators and reduce bureaucracy. It plans to introduce the new ‘future-proof’ scheme by early 2018 and, subject to the outcome of the consultation, says it will not reinstate the second 8.75% fee cut, which was suspended for 12 months last April.
Bean counting – with extreme consequences
In response to the proposals, the Law Society, Legal Aid Practitioners Group, Criminal Law Solicitors’ Association (CLSA) and London Criminal Courts Solicitors Association issued a joint statement opposing any further legal aid cuts. Over twitter, Franklin Sinclair, partner at Tuckers, which is among the so-called Big Firms’ Group, indicated its support of their position.
Sarah Grace, vice chair of the CLSA and partner at Cardiff firm Morgans Criminal Law states: ‘The profession simply can’t sustain any further cuts in whatever guise – this was confirmed by the government’s own expert report at the time of the two-tier debacle’.
She says: ‘There is a groundswell of feeling which, over the next week, will be made manifest in meetings around the country’ and which is likely to end up in an immediate boycott of the s38 work and further strike action over the LGFS cuts.
One practitioner who preferred to remain anonymous, said: ‘If I were a betting man, I’d say we’ll be back to the situation we were in a few years ago over two-tier,’ where solicitors and barristers took to the streets in protest over proposed criminal legal aid reforms, which the government was forced to abandon.
On the s38 cuts, Grace said: ‘There is a strongly-held view that the conclusion that individuals will come to is that participation in the court appointee scheme will be effected as a direct result of the government’s intent to slash remuneration by up to 75%.’
She added: ‘If any steps are taken in relation to the court appointee scheme it will be with a heavy heart, as it will have an impact on the courts, defendants, complainants and witnesses’.
Richard Miller, the Law Society’s head of justice called s38 work ‘difficult, disruptive and emotionally challenging’.
‘The feedback we are getting from our members is that many firms would be unable to carry out such complex and urgent work at the rates being proposed. If a court is unable to appoint an advocate to conduct this cross-examination, it may be faced with the invidious choice of allowing the defendant to cross-examine the complainant in person or stopping the case and releasing the defendant. Either outcome would be devastating for the victims of abuse the government is rightly trying to protect.’
When it comes to cutting legal aid fees, the government, says Sarah Grace, has relied on the disparate nature of the criminal defence services market – as changes that may be adverse for some firms, others see an opportunity to gain.
But here, she says: ‘These changes affect firms of all shapes and sizes – there is no fracture in the profession on this, as seen by the joint statement, which is supported by the Big Firms Group.
‘For the first time we are all exposed. Where in the past there might have been fractions, this is not good for anyone, so the government may find that the reaction against it is pretty strong’.
Practitioners, she says, have been calling for reform of the LGFS for some time. The PPE payment method, she says is inadequate, and means solicitors do not get paid for some essential work, for example looking at unused material.
But the proposed reform, does not improve it, but merely ‘leaches money from it’.
She adds: ‘The Napper case was not manna from heaven, but simply correcting a mistake made by the Legal Aid Agency. ‘Now we are being asked to absorb a £30 million cut to rectify their mistake – it is bean-counting for the sake of it, with extreme consequences’.
On the possible response from solicitors, James Parry, chairman of the Law Society’s criminal law committee, said: ‘The Law Society can’t condone that sort of direct action, because it is not a trade union.’
But, he said: ‘The government has got itself in a pickle – it has decided that it can keep taking money away from solicitors and barristers, but on this occasion the cupboard is empty; there is nothing left to give. Solicitors’ firms have their backs to the wall. They can’t afford the cuts’.
He said: ‘When solicitors find themselves in this position they will fight for their employees and clients. The consequence is that there will be a grass roots withdrawal of cooperation and there is nothing that the Law Society can do about it.
‘The inevitable consequence is that lawyers will take the view that it is not economic to do the work and it is the victims and witnesses that will suffer and they are not even considered in the ministry’s impact assessment’.
Parry observed: ‘It must be an embarrassment to the prime minister, that while she is standing up for victims of domestic violence, one of her government departments is proposing to do away with at least 75% of the funding available in the criminal courts’.
He added: ‘The criminal justice system is the shop window for legal services in this jurisdiction. The portrayal of what should be the best criminal justice system in the world contributes to the enormous amount of foreign earnings that this sector bring to the economy. In the post-Brexit era, can the government really afford to embarrass itself by allowing a public demonstration of the erosion of criminal legal aid and all it stands for in this country’.
While Sinclair supported the united stance, he noted: ‘The problem is that we have been saying this for years and yet we are still here – a lot of firms have been hanging on, waiting for the firm next door to go bankrupt so they could get their work’.
He says: ‘We are angry. Yes, we’d like to fight, but they [the government] do what they wants. What can we do?’
He suggests that the government would be more scared and take more seriously the threat of legal action rather than industrial action, but sys he is not aware of any being considered.
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