Criminal Legal Aid Review (CLAR): The Accelerated Items
CLAR Background
The Criminal Legal Aid Review (CLAR)[1] was first announced on 10 December 2018 by the Ministry of Justice (MOJ) when it provided its response to Amending the Advocates’ Graduated Fee Scheme (AGFS).[2] Later in February 2019, the MOJ published its post-implementation review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO)[3] a Review of Legal Aid for Inquests[4] and Legal Support: The Way Ahead - An Action Plan to Deliver Better Support to People Experiencing Legal Problems.[5]
The purpose of CLAR is a review of the entire ‘criminal legal aid cycle’, from fixed fees in the police station and Magistrates’ Court, to graduated fees in the Crown Court (AGFS and the Litigators Graduated Fee Scheme (LGFS). The review also includes a review of Very High Cost Cases (VHCC).
CLAR has two main outcomes:
(1) To reform the criminal legal aid fee schemes so that they: fairly reflect, and pay for, work done; support the sustainability of the market, including recruitment, retention, and career progression within the professions and a diverse workforce; support just, efficient, and effective case progression, limit perverse incentives, and ensure value for money for the taxpayer; are consistent with and, where appropriate enable, wider reforms; are simple and place proportionate administrative burdens on providers, the Legal Aid Agency (LAA), and other government departments and agencies; and ensure cases are dealt with by practitioners with the right skills and experience.
(2) To reform the wider criminal legal aid market to ensure that the provider market: responds flexibly to changes in the wider system, pursues working practices and structures that drive efficient and effective case progression, and delivers value for money for the taxpayer; operates to ensure that legal aid services are delivered by practitioners with the right skills and experience; and operates to ensure the right level of legal aid provision and to encourage a diverse workforce
CLAR was first published on 14 March 2019, inclusive of the formation of the Defence Practitioner Advisory Panel with the CLAR Programme Overview being published on 30 April 2019.[6]
In the early summer of 2019, the Criminal Bar Association (CBA) of England and Wales balloted its membership once again with regards to AGFS Scheme 11 and prosecution fees. Its members voted overwhelmingly in favour of industrial action; 2586 (94.90%) voted for action in respect of prosecution fees, and 2567 (93.86%) voted for action in respect of AGFS Scheme 11.[7]
The threat of action resulted in a proposal by Her Majesty’s Government. On 12 June 2019, the CBA advised its members of the joint package offer which included an increase in prosecution fees, and a promise to accelerate certain aspects of CLAR.[8]
The CBA recommended its membership accepted the Government’s offer before going back to its membership for the final say. Meanwhile, the proposal between the Crown Prosecution Service, MOJ, Attorney General, CBA and the Bar Council was factored into CLAR.
On 28 June 2019, a total of 2607 voted, and 1583 (60.72%) voted to suspend action,[9] with the Plan for Accelerated Work being published on 23 July 2019. The accelerated work includes:
(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); and
(5) payment for sending cases to the Crown Court.
CLAR seemingly continued throughout the summer of 2019, with a methodology section being added on 23 August 2019, and the CLAR plan being updated on 19 September 2019.
From the outset, the Defence Advisory Panel have been informed that CLAR would report by the summer of 2020. Further still, the panel were informed that announcement of the Plan for Accelerated Work would report by November 2019, with the main review continuing in the background as planned.
In October 2019, the Government announced a General Election, with the dissolution of Parliament taking place on 06 November 2019. The Election subsequently took place on 12 December 2019, with the State Opening of Parliament taking place on 19 December 2019.
The rules surrounding purdah meant that no Government policy proposal would take place, meaning the Plan for Accelerated Work would inevitably be delayed.
In February 2020, one half of the joint package offer, i.e. an increase in prosecution fees, came to fruition; Scheme E came into force, whilst the five accelerated CLAR items remained outstanding.
On 26 February 2020, the Attorney General’s Office published the AG’s Guidelines on disclosure and the consultation on a revision to the Guidelines. The announcement from the AG is important for two reasons: firstly, criminal legal aid and disclosure are intertwined concepts and secondly, CLAR is reliant on the AGO having regards to pre-charge engagement.
· Attorney General’s Office, Attorney General’s Guidelines on Disclosure (26 February 2020) https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/868617/AG_Guidelines_on_Disclosure_-_FINAL.pdf
· Attorney General’s Office, Consultation on revisions to the Attorney General’s Guidelines on Disclosure and the CPIA Code of Practice (26 February 2020)
CLAR: Accelerated Items
On 28 February 2020, the MOJ published an accelerated package of measures that would amend the criminal legal aid fee schemes, four months later than the MOJ originally promised.[10] The MOJ has published four out of the five accelerated items. The 4 week consultation closes on 27 March 2020.[11]
The key publications include the consultation and impact assessments:
· Ministry of Justice, Criminal Legal Aid Review: An Accelerated Package of Measures Amending The Criminal Legal Aid Fee Schemes (Consultation) (28 February 2020)
· Ministry of Justice, Criminal Legal Aid Review: An Accelerated Package of Measures Amending The Criminal Legal Aid Fee Schemes (Annex B: Equality Statement) (28 February 2020)
· Ministry of Justice, Criminal Legal Aid Review: An Accelerated Package of Measures Amending The Criminal Legal Aid Fee Schemes (Impact Assessment) (28 February 2020)
· Ministry of Justice, Criminal Legal Aid Review: An Accelerated Package of Measures Amending The Criminal Legal Aid Fee Schemes (Impact Assessment ? Annex B: Unused Material Findings from the CPS Case File Review, Solicitor Survey and Barrister Survey) (28 February 2020)
· Ministry of Justice, Criminal Legal Aid Review: An Accelerated Package of Measures Amending The Criminal Legal Aid Fee Schemes (Impact Assessment ? Annex C: Supporting Evidence from Practitioner Focus Group Discussions) (28 February 2020)
The Consultation
Question One: Do you agree with our proposed approach to paying for work associated with unused material? Please state yes/no and give reasons.
Unused evidence is evidence that the prosecution to not seek to ‘use’ in the prosecution’s case. ‘Unused’ is evidence gathered during the investigation that may undermine the prosecution’s case, or assist the defence.
The proposal states that unused material will pay a fixed fee based on work done between 1 and 3 hours. The fee for solicitors will be ￡64.68, based on 1.5 hours work, at ￡43.12 per hour. In other words, if a solicitor does 30 minutes of work, they will be paid 1 hour extra, or if they do 3 hours work, they will be paid 1.5 hours less.
The MOJ claim:
“Evidence from the CPS casefile review and the solicitor unused material survey suggests only a small proportion of cases include electronic unused material (between 9% and 12% respectively). The barrister survey reported a much larger proportion of barristers usually having to consider electronic unused evidence (ranging from 75% to 100%).”[12]
I am afraid this is simply untrue and I do not accept the MOJ’s finding. It does not logically follow that barristers have unused in 75%-100% of their cases, compared to solicitors who apparently only have 9% - 12% of unused.
A likely explanation can be found in Annex C:
“The focus groups were divided based on profession, to enable a focused discussion. In total eleven focus groups were held: four with barristers, and seven with solicitors and solicitor advocates. There were 33 attendees altogether in the four barrister focus groups, and 46 in the seven focus groups for solicitors and solicitor advocates. The majority of the attendees were experienced practitioners, although early-career practitioners were also represented.”[13]
Put it simply, the MOJ’s methodology is completely flawed. I do not accept the data sample is an accurate reflection of the unused material that solicitors deal with in almost every single case.
Having regards to the administrative aspect of the proposal, there is on the face of it, a perceived benefit of not having to justify the work. However, I find the MOJ’s proposal illogical in this respect as well. The proposal suggests an anticipated additional 12,300 special preparation claims per annum.[14] The MOJ will be aware of the LAA’s statistics on SP claims; 434 claims were received, including 135 that were rejected. I do not understand how the MOJ arrived at this figure? Hypothetically, if the MOJ were correct in their analysis that solicitors only deal with unused in 9-12% of cases, it is illogical that there would be 12,300 additional claims when considering the number of cases in the criminal justice system. Not only that, but not all of the 12% are going to be special preparation claims; a proportion of those would be “a fixed payment for 0-3 hours’ work [which] would also avoid the need for individual assessments for small claims, reducing the administrative burden on providers, and the LAA.”[15]
I bear in mind the Government’s own Solicitors' guidelines on hourly rates, published on 19 April 2010.[16] Firstly, I note there has been no increase in those rates in terms of inflation, especially considering the fact 10 years has elapsed. Secondly, every single band attracts an hourly rate far beyond the policy proposal relating to unused.
The reality is that the hourly rate is simply inadequate and it does not reflect the work that is done; the proposal is de facto contrary to the main objective of CLAR. The difficulty with unused is that nobody, whether that be the MOJ, LAA, CPS, police or the defence community, actually knows how much unused material is going to be generated throughout the investigative process. The very nature of unused means you will never be able to predict its cost, but that does not mean the fee should be unsustainable for the defence.
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.
Payment for unused should be given an hourly rate. An hourly rate. Not one hour and thirty minutes, but an actual hourly rate. I invite the MOJ to revisit the solicitors’ guidelines on the hourly rates and consider what they should be now that a decade has elapsed? Then perhaps we can consider what the hourly rate for unused should be? A Band D fee earner in a National Grade 3 zone is currently commanding a great deal more than the rate proposed by the MOJ in the context of reading unused material.
I not accept this proposal. It is illogical, flawed, and derisory and it goes against the main objectives of CLAR.
Question Three: Do you agree with our proposed approach to paying for paper heavy cases? Please state yes/no and give reasons.
I do not propose to deal with this proposal at this stage.
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.
I do not propose to deal with this proposal at this stage.
Question Five: Do you agree with our proposed approach to paying for cracked trials under the AGFS? Please state yes/no and give reasons.
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.
I propose to respond to question 5 and 6 together as my response is mixed.
In terms of 100% of the brief fee to all cases which crack after the Plea and Trial Preparation Hearing (PTPH), this is very welcome.
Having said that, it is not fair if litigators are not remunerated in the same sense. The MOJ believe it is fair to remunerate advocates for “’work done’ in preparing a case.” Yet it will not remunerate litigators in the same way. Interestingly, the MOJ use the word “prepare.” Unless I am mistaken as to the role of a criminal defence litigator, that is precisely what my colleagues and I do. We prepare a case for trial.
Whilst I applaud 100% of the brief fee for advocates – and rightly so – I do not see how the MOJ can justify such a concept for advocates and not apply the same concept to litigators?
As such, I partly accept this proposal.
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.
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.
Similarly, I propose to deal with questions 7 and 8 together.
The MOJ propose an additional fee on top of the LGFS fee equivalent to 2 hours’ worth of work in the Magistrates’ Court, to cover the additional work done ahead of sending cases to the Crown Court. The MOJ proposes a fee of ￡45.35 per hour.
What is perhaps more important is to consider the history of the sending fee itself. When the committal fee was abolished in 2011, it stood at around ￡318.00, compared to the ￡90.00 on offer in this proposal. 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. Applying added complexities, as well as inflation, the fee should stand at around ￡500.00.
I do not accept this proposal.
Interestingly, in the online version of the consultation, the MOJ state:
“We propose increasing LGFS fees for cases sent to the Crown Court for trial by the equivalent of 2 hours’ work done in the magistrates’ court (￡435 per hour) to cover the additional BCM work now done ahead of sending cases to the Crown Court.”[17]
If it is indeed the case that the MOJ are proposing ￡435.00 per hour, I accept this proposal.
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.
No, I do not agree. I invite the MOJ CLAR team to review the attached bibliography:
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.
Yes, every single human being in England and Wales will be negatively affected. The criminal law does not discriminate. Anyone and everyone can be accused of a crime.
The profession’s initial response
The Law Society believe that the money proposed in the accelerated items is “insufficient to match the scale of the problem” and the MOJ should amend the proposals “otherwise further collapses of firms will be inevitable.”
The Law Society has called for immediate action from the MOJ, calling for (1) an across the board increase in rates; (2) a higher fee for sent cases and; (3) alignment of the principle of paying 100% for cracked trials.
Richard Atkinson, co-chair of The Law Society’s Criminal Law Committee added:
“…our members could be forgiven for concluding that constructive engagement does not work, and that if they bet their economic survival on the MoJ seriously addressing the crisis, then bankruptcy is the more likely outcome for them.”[18]
The Criminal Law Solicitors’ Association (CLSA) are of the view this is a “national priority.” They conclude that “at this stage we are clear the sums discussed in this latest consultation simply do not address this crisis.” Similarly, “the sums proposed in the consultation are as insulting as they are derisory, particularly given that the government has managed to find ￡85m for the CPS (including the promise of annual reviews).”[19]
The London Criminal Court Solicitors’ Association (LSSCA) have warned that “this could be an extinction event for good quality defence solicitors and access to justice for the public.”
“We have warned of the impending crisis, we are seeing the collapse of well-established firms with our own eyes, we are hearing the cries from the junior end of the profession sinking under the weight of student debt and ever increasing costs of London living having no choice but to abandon publicly funded work. Our representations have sadly fallen on deaf ears.”
“…the Government has chosen not to take this opportunity to show good faith and has yet again demonstrated that access to justice is not a priority.”
“The offer on the table is not only woefully inadequate, but is frankly insulting to the profession’s ongoing hard work, commitment to publicly funded work and skill level.”
Conclusion
In R (Daly) v SSHD[20] Lord Bingham held criminal justice in England and Wales is three interconnected free standing rights requiring protection from abuse of power. He categorised them as (1) the right of access to a court, (2) the right of access to legal advice and (3) the right to communicating confidentially.
The reality is, access to courts has been significantly reduced by the closure of 50% of the Magistrates’ Courts since 2010. As for the Crown Courts, many court rooms sit idle on a daily basis. It is no surprise to me that the Chair of the Justice Committee, Sir Bob Neil MP, concluded that “this points to a grave failure of proper management on the part of HMCTS.” The MOJ should be making full use of the court estate, however this will require investment and a further increase in sitting days allocated to judges.
As for access to legal advice, the future remains bleak for criminal defence. Indeed criminal defence solicitors will be well within their right to be dismayed at the current state of criminal legal aid. In addition to the 36% reduction in criminal legal aid firms since 2010, the latest Duty Solicitor rota reveals that from October 2016 to April 2020, there has been a 29% reduction in Duty Solicitors. As for junior lawyers, in 2016 the SRA reported only 2.9% of trainees opted to do a criminal seat as part of their training.
Every week, I am hearing of more colleagues that are leaving defence firms and heading to the CPS, a prosecuting authority recruiting nearly 400 prosecutors and 100 paralegals by June 2020. It is not unreasonable to suggest that many firms will not be around by the conclusion of the main review. It is no surprise to me that the CPS appeals to defence lawyers given the fairer remuneration, work-life balance, and the more attractive pension on offer. The recruitment drive will further reduce the pool of lawyers entering and remaining in criminal legal aid.
I appreciate the MOJ accelerated a small number of items ahead of the main review for the above mentioned reasons. However, the criminal legal aid system has such a negative trajectory that unless the MOJ revisit their interim plans, they risk being unable to revive a system from complete collapse. The system needs investment today, rather than in a years’ time.
The Law Society and the Junior Lawyer Division of The Law Society have repeatedly warned the MOJ of the existing crisis, and the continual threat of further decline. The MOJ has been warned that certain parts of England and Wales will be without criminal defence solicitors. Justice for victims and defendants is at real risk as the fairness of a criminal trial is cast into doubt.
The notion that is ‘swings and roundabouts’ for defence solicitors is now out of date for both the fixed fees and graduated fees given they are based on historical data, and a basket of cases that no longer exists in the modern day criminal digital justice system. The decreasing shortage of criminal defence solicitors is economically unsound; decades of cuts to legal aid have been a false economy. The truth is, criminal defence lawyers are in a unique position within the criminal justice system; they know how it works and they now advise on pleas at a much earlier stage in proceedings, resulting in greater saving to tax payer money and enables the delivering of swift justice for victims of crime.
In my view, the rate of remuneration having regards to criminal legal aid is a crisis that is further compounded by delay pre-charge (Released Under Investigation) and delay post-charge (Crown Courts sitting empty). The inefficiencies of the criminal justice system continue to be a tax on criminal defence firms.
As our criminal justice and criminal legal aid system continues to be underfunded, there is a real risk the fairness of a criminal trial is cast into further doubt. Justice will be denied. I urge the MOJ to rethink its interim proposals, and inject much needed financial relief into a system on the brink of extinction.
“…it would seem that direct action is the only language the MOJ can hear.”[21]
Stephen Davies
CLAR Representative, Junior Lawyer Division
02 March 2020
[1] Criminal Legal Aid Review (CLAR) https://www.gov.uk/guidance/criminal-legal-aid-review
[2] Ministry of Justice, Amending the Advocates’ Graduated Fee Scheme: Government Response (10 December 2018)
[3] Ministry of Justice, Post-Implementation Review of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) (CP 37, 07 February 2019) https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/777038/post-implementation-review-of-part-1-of-laspo.pdf
Ministry of Justice, Post-Implementation Review of Part 2 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) - Civil litigation Funding and Costs (CP 38, 07 February 2019) https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/777039/post-implementation-review-of-part-2-of-laspo.pdf
[4] Ministry of Justice, Final report: Review of Legal Aid for Inquests (CP 39, 07 February 2019) https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/777034/review-of-legal-aid-forinquests.pdf
[5] Ministry of Justice, Legal Support: The Way Ahead - An Action Plan to Deliver Better Support to People Experiencing Legal Problems (CP 40, 07 February 2019) https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/777036/legal-support-the-way-ahead.pdf
[6] Ministry of Justice, Criminal Legal Aid Review: Programme Overview (30 April 2019) https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/799661/criminal-legal-aid-programme-overview.pdf
[7] Criminal Bar Association, Monday Message (07 June 2019) https://www.criminalbar.com/resources/news/special-announcement-ballot-results-07-06-19/
[8] Criminal Bar Association, Monday Message (12 June 2019) https://www.criminalbar.com/resources/news/special-message-on-the-governments-offer-12-06-19/
[9] Criminal Bar Association, Monday Message (28 June 2019) https://www.criminalbar.com/resources/news/the-ballot-result-28-06-19/
[10] https://consult.justice.gov.uk/criminal-legal-aid/criminal-legal-aid-review/
[11] https://consult.justice.gov.uk/criminal-legal-aid/criminal-legal-aid review/supporting_documents/criminallegalaidconsultationdocument.pdf
[12] Ministry of Justice, Criminal Legal Aid Review: An Accelerated Package of Measures Amending The Criminal Legal Aid Fee Schemes (Impact Assessment ? Annex B: Unused Material Findings from the CPS Case File Review, Solicitor Survey and Barrister Survey) (28 February 2020) at 2
[13] Ministry of Justice, Criminal Legal Aid Review: An Accelerated Package of Measures Amending The Criminal Legal Aid Fee Schemes (Impact Assessment ? Annex C: Supporting Evidence from Practitioner Focus Group Discussions) (28 February 2020) at 6
[14] Ministry of Justice, Criminal Legal Aid Review: An Accelerated Package of Measures Amending The Criminal Legal Aid Fee Schemes (Consultation) (28 February 2020) at 19
[15] Ministry of Justice, Criminal Legal Aid Review: An Accelerated Package of Measures Amending The Criminal Legal Aid Fee Schemes (Consultation) (28 February 2020) at 18
[16] https://www.gov.uk/guidance/solicitors-guideline-hourly-rates.
[17] https://consult.justice.gov.uk/criminal-legal-aid/criminal-legal-aid-review/consultation/subpage.2020-02-06.3086409348/?fbclid=IwAR3vHVhJ_O0aZsqNZXIaRE3OxWJeSEsGw6YO16Kpm6ZW_KpmKstn2gQkTA8
[18] lawgazette.co.uk/commentary-and-opinion/crumbs-from-the-table-mojs-proposals-fail-to-address-criminal-justice-crisis/5103270.article
[19] Criminal Legal Aid Review – another missed opportunity? https://www.clsa.co.uk/index.php?q=784
[20] R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 at 537-538
[21] https://www.lccsa.org.uk/85691-2/
Maser of arts with merit in advertising and marketing.
4 年Hi Stephen , my name is Sophie Fox and I’ve sent you a private message on Facebook messenger with some law questions that I have an essay if you have time to take a look and give me any feedback or advice on how I can tackle these questions it would be greatly appreciated.