Blogging about Criminal Law, Legal Aid and Justice
I am a Solicitor, specialising in criminal law and procedure, criminal defence, criminal justice policy, access to justice and legal aid in England and Wales.
You can follow me on twitter: @sdavieslaw
All commentary and opinions are mine unless stated otherwise. I always welcome corrections.
Justice delayed, is justice denied. Defendants and victims currently face substantial delay in the criminal justice system. It can now takes 4-5 years from the date of an alleged criminal offence, to the date of a trial by jury in the Crown Court. The increased level of delay exists in both the pre-charge and post-charge arena, creating uncertainty, unfairness, and brings the justice system into disrepute. Protracted and prolonged delay is contrary the overriding objective – acquitting the innocent, and convicting the guilty, and doing so efficiently and expeditiously. Delay jeopardises public protection, and continues to risk miscarriages of justice.
This blog hopes to tackle the thorny issues deriving from pre-charge delay.
The fanciful idea that is victims letting suspects off the hook, or victims withdrawing from the criminal process for whatever reason, without mentioning or scrutinising the delay and of course, the reasons for the delay, continues to be extraordinary.
Released Under Investigation (RUI) is new layer of additional delay that has been embedded into the system; whilst there is always going to be an element of delay in any process, my view is that the analysis ought to be on how and why additional delay has been created, and whether it is proportionate and necessary. If, on the latter point that it is, can delay be avoided? If it cannot, then what remedies can be put in place to act as a check and balance for when individuals or organisations are burdened with delay, and its consequences. Similarly, if additional mechanisms are created, are they be fit for purpose?
RUI was introduced by s.54 of the Policing and Crime Act 2017; the Act gained Royal Assent on 31 January 2017, with RUI coming into force in April 2017. RUI is an additional ‘outcome’ mechanism available to the police following a suspect’s interview under caution. This is in addition to the other main outcomes: No Further Action (NFA), bail (with or without conditions) and charge. In effect, the relatively new outcome puts the investigation into limbo, with no time limits or oversight.
Importantly, RUI was not debated at any stage during the Policing and Crime Bill. It is unclear whether or not RUI was actually intended by Parliament or whether it is a significant unintended consequence of the Act’s drafting. However, Parliament was, at the very least, warned about creating a “new category of person” during the second sitting of the Committee Debate, by the then Chair of the NPCC, Dame Sara Thornton.
Although the 2017 Act provides statutory time limits and judicial oversight of extensions regarding bail, RUI attracts no such time limit, oversight or appeal procedure. This leaves it open to abuse; in other words, investigations have lacked the time-limit focus that is brought about by the bail regime, with cases being prioritised based on the seriousness of the offence, and – I suspect in every case – with an array of additional complex and connected resource issues on-going in the background.
“There is “no requirement to review the case, and no framework, so potentially it is more problematic. If that were me, I do not know whether I would prefer to be on bail or still a suspect in a live criminal investigation.”
Dame Sara Thornton
In January 2019, the National Police Chiefs’ Council (NPCC) issued Operational Guidance for Pre-Charge Bail and Released under Investigation. In my view, whilst the guidance was a helpful starting point, it largely failed in practice. My experience is that the police do not communicate with the defence adequately enough in respect of suspects who were RUI. I think it is rare for a suspect to be informed of an Expected Finish Date (EFD) – whether realistic or not – and rarer still for that to be conveyed to the defence if the EFD changes. This is important as I reflect on the longest RUI period I have personally come across, namely a period of two years, and six months from the date of arrest, to the date of charge.
Since the introduction of RUI, the use of bail has dramatically decreased across England and Wales; from 216,178 cases in 2016-17, to 43,923 in 2017-18. In London, 67,838 people were released on bail in 2016-17. In 2017-18, that number fell to 9,881, yet the number of people released under investigation in the same period was 46,674. In 2017-18, 193,073 were RUI in total, including more than 93,000 suspected of violence and sexual offences. The statistics suggest RUI has replaced bail in practice.
Having been in operation for almost three years, RUI was debated during a Westminster Hall debate on 05 February 2020. It was suggested that RUI poses a threat to victims of crime, as unlike release on bail, the accused is free to contact their alleged victim. Furthermore, “police forces are incentivised to use RUI by administrative burden of investigating within 28-day bail period, when resources have been cut and stretched by austerity.” Whilst some complainants do withdraw from the process, it doesn’t hold much water to suggest they are letting suspects off the hook; if anything, victims of crime are placed in an invidious position without the protections afforded via bail conditions.
“The report groups its findings under four areas of concern; one of those areas is a failure to impose and extend bail conditions – “there has been a dramatic fall in the use of bail in rape, domestic abuse and harassment and stalking cases, and a corresponding increase in the use of ‘released under investigation’”
College of Police, HMICFRS, IOPC, A Duty to Protect: Police Use of Protective Measures in Cases Involving Violence Against Women and Girls (24 August 2021)
Kit Malthouse MP advised that the Government have “listened to the concerns of the sector repeated in this debate, announcing a review on 5th November 2019. The Government launched a consultation on pre-charge bail and RUI, with the Home Secretary publishing a ministerial statement with four proposals: a) remove presumption against pre-charge bail; b) Ensure use of bail when necessary and proportionate; c) extend timescale for initial use of bail to either 60 or 90 days, to reflect case complexity; and d) review periods for RUI individuals.
In the Government response to the consultation, Model C was preferred insofar as pre-charge bail. This means that the police can extend a suspect’s bail period up to 12 months with the authorisation of a Superintendent, whereas the period thereafter requires the Magistrates’ Court to intervene at three month intervals. The preferred model has largely been incorporated within the Police, Crime, Sentencing and Courts Bill (the ‘Police Bill’).
Whilst I suspect operational guidance failures can be explained broadly by resource issues affecting the police, my criticism of the regime failing is not designed to blame any given organisation within the system, but rather to highlight the necessity for financial injection in the pre-charge arena if current and forthcoming policy proposals are implemented in law. For example, the Police Bill places a duty on the police to “seek views of alleged victims on conditions of pre-charge bail” under Section 44 of Part 1, Schedule 4. Additional obligations are also likely via primary legislation specifically for victims. The Government are currently consulting on “Delivering justice for victims: A consultation on improving victims’ experiences of the justice system”. The ‘Victims Code’ will see “new expectations for victims” to ensure that victims are heard and informed at key points, in particular communications from the police. This is important given a third of rape victims currently feel police are unhelpful.
It follows that if the system is unable to cope at present, how will it cope when additional obligations are imposed? Hucklesby suggests the proposals are likely to be a “sticking plaster and create as many problems as they solve.” (Crim. L.R. 2021, 2, 82-97). Similarly, Johnston and Sosabowski suggest “the government had an opportunity to remedy the ills of the RUI system, instead they have just stared further into the abyss of delay, inefficient use of resource and denial of justice.” (The Journal of Criminal Law, 2022).
With long delays under RUI, the defence is put in the invidious position of having to conduct work speculatively (i.e. without knowing if there will be a charge and subsequent fee) in order to maintain rapport and contact, but more importantly, to avoid prejudice to their clients.
From a legal aid (business) perspective, my suspicion is that RUI work has become by and large, a dead pool of work. Even so, it often takes years for the lucrative work to be charged and by building up a large bank of unresolved and unbilled casework, RUI is causing a significant cash flow crisis for defence firms already under severe financial pressure. This is in effect a hidden tax on defence lawyers, further compounding decades of legal aid cuts and increasing risks to the sustainability of legal aid provision in England and Wales. This aspect of the legal aid crisis was recognised by Sir Christopher Bellamy Q.C. in his Independent Review of Criminal Legal Aid (December 2021).
“Often a person subject to RUI hears nothing further for months, if not years, and then receives a postal requisition (i.e. summons) indicating they have been charged, giving a date for their court appearance.”
Sir Christopher Bellamy Q.C
The argument for increased resources is increasingly more important in light of the disclosure regime. The Attorney General’s Guidelines on Disclosure (December 2020) sees a “culture change” towards the front-loading of evidence criminal cases; for example, the new rebuttable presumption to disclose evidence to the defence, the Disclosure Management Document (DMD) the the push for an “early definition of the real issues in the case by both sides.”
It could be argued that the pool of RUI and pre-charge bail work for defence practitioners can be dealt with by remuneration for Pre-Charge Engagement (PCE). However, the fee scheme fails in its current format due to a) the remuneration on offer; b) it is dysfunctional due to disagreement between practitioners and the Ministry of Justice concerning the notion of a ‘written agreement’, and whether ‘preliminary work done’ that results in negative advice to the client, will be captured by the fee scheme; and c) there is a suggestion payment is contingent on the investigator requesting PCE. The ongoing CLAIR consultation is likely to resolve this issue one way or another.
Regardless, I do not think PCE is the saving grace to the legal aid profession; it is interesting from a policy and procedural perspective, but fails in the sense that the sustainable remuneration kicks in post-charge via a Legal Aid Representation Order. If the system continues to promote front-loading, legal aid will require recalibration accordingly.
Whilst an increase in budgets remains an avenue of redress for both investigators and defence practitioners that bear the burden of delay, there appears to be little, if any, political appetite to adequately resource criminal cases. It’s either groundhog day, or shifting the problem onto someone else.
The Police Bill seems likely to result in the pendulum swinging back to the pre-2017 arrangement – albeit with a degree of oversight – nevertheless, timescales at the investigative stage that are determined by investigators, means that delay has de facto been embedded into the pre-charge arena for at least 12 months. It will of course be proportionate and necessary for time to be afforded in some investigations, but are those investigations properly resourced? For example, the House of Lords Science and Technology Select Committee outlined in their 2019 report “Forensic Science and the Criminal Justice System: A Blueprint For Change” (HL Paper 333) that “simultaneous budget cuts and reorganisation, together with exponential growth in the need for new services such as digital evidence, have put forensic science providers under extreme pressure.”. Further, the police currently have a backlog of 20,000 devices awaiting examination.
In future, it will be interesting to see how the courts respond, and what will – if anything – be the consequence? Some suspects may be quite happy for the investigation to be kicked into the long grass for all the dividends that may be paid later, but for many who wait with criminal allegations hanging over their head, and those who have been a victim of crime, they will undoubtedly want answers and solutions to the uncertainty and delay.
The High Court have already confirmed that “there can never be any guarantee of bail once a defendant is charged” (R (Iqbal) v The Crown Court at Canterbury & Ors [2020] EWHC 452 (Admin)). However, if the pre-charge delay issue is to be adjudicated by the lower courts, then perhaps a similar approach will be taken when dealing with disclosure failings. In his 2014 Magistrates’ Court Disclosure Review, Lord Justice Gross stated that if “the failure is clearly at the door of the prosecution, then it is the prosecution who must make the application for an adjournment to comply with its obligations…if the application for an adjournment is refused, the consequence must be that the prosecution should offer no evidence”. In other words, the case is put in the bin. It’s not rare either – every day, the prosecution seek adjournments for failing to disclose unused schedules, and many of those applications are refused. Cuts have real consequences, but they are often covered up by sophisticated policy, and the onus being shifted onto someone else.
Whilst there is force in the suggestion that RUI is a knee-jerk reaction to Paul Gambaccini’s prolonged bail status, my strong view is that RUI is a ‘pressure valve’ for the criminal justice system. It allows a slow, drip-feed introduction of newly charged cases into the post-charge arena that is already overburdened. RUI has essentially become a tool to supress the true extent of austerity measures that have impeded every stage of criminal procedure from arrest to conviction.
Pre-charge delay has exponentially increased, and legislated in a manner that takes the issue away from Government, and shifts the onus predominately onto the police and lawyers, with the issue is about to arrive in the lower courts. Delay in this sense is a tax for those who bear the responsibility of dealing with it. That said, a properly resourced pre-charge arena will only be problematic if those working on the frontline are starved of the necessary resources.
Unnecessary delay ought to be avoided. Current checks and balances are largely failing because they are not properly financed. Whilst some complainants do withdraw from the process, I think it’s unfair to suggest they are letting suspects off the hook without questioning the root cause. If anything, those caught up within the system are gaslighted and diverted away from the causal effect of delay.
The Lord Chancellor, Dominic Raab MP states that he wants to “instil the fear of God into the minds of anyone who would contemplate threatening a woman or girl.“ I am not sure that his position holds much water given there couldn’t be a better time to commit a criminal offence; suspects that are RUI continue to be investigated for years, with no protective mechanism in place to alleviate the concerns of complainants. Is a 4-5 year wait, really instilling the fear of God? Perhaps it is in fact the Government that are letting the guilty off the hook, and does so by blaming anyone but itself.
Irrespective of whether Government have shifted the onus of delay onto others, policy initiatives and political decisions in respect of departmental budgets are only adequate if Government are properly informed; Dr. Natalie Byrom suggests there is a deficiency regarding data in the justice system. On the subject of RUI and bail, my view is that the Government hold responsibility in dealing with the data issue. I see no reason why every single criminal case cannot be tracked via the Custody Record Number, which in turn ought to generate a Unique Reference Number (URN) for cases that are charged. Once the Common Platform is a functioning multi-organisation platform, data should in theory, become far easier to obtain and analyse as each case proceeds throughout the criminal process. Until data is ascertained and monitored at the point of interception, criminal justice scorecards will remain a cheap political gimmick.
The longer the Government continues to ignore its responsibility, the more I think it is deliberate in its attempt to save money by ensuring cases never make it to court. The public deserves better, and it ought to not let this Government off the hook!
Stephen Davies
Criminal Defence Solicitor
@sdavieslaw
23 March 2022
“An atmosphere of mistrust and suspicion has been allowed to build up between suppliers and the government, and implementation of the reforms would be significantly helped if stakeholder relations were strengthened with the legal profession and other agencies operating in the justice system” – Lord Carter, Legal Aid: A Market-Based Approach to Reform (13 July 2006)
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:
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.
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:
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 case file 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 it in 9% – 12% of theirs.
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 recent 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% would 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 does 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 have sent the MOJ CLAR team a bibliography to review.
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 [21] 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 delivery 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.”[20]
Stephen Davies
CLAR Representative, Junior Lawyer Division
DaviesS@tuckerssolicitors.com
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] https://www.lccsa.org.uk/85691-2/
[21] R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 at 537-538
This is a guest post by Neil Baki, a Criminal Barrister at Exchange Chambers and Farrar’s Building, and a Member of the Bar Council of England and Wales. This is a speech that was partially delivered at an event organised by Legal Sector Workers United on Wednesday 26 June 2019 at Hodge Jones & Allen Solicitors. The views below are that of Neil Baki’s.
Neil Baki, The CBA Who Cried Wolf: Why Action Is The Only Option (June 2019)
On Wednesday 26th June, I was honoured to speak and be part of a panel organised by the Legal Sector Workers United (UVW), a union representing a range of legal sector workers be it cleaners, security staff, solicitors or barristers. For want of a better term, this “post” was intended to be part of that presentation, but due to time contraints, only half of what I wanted to say was actually spoken. I will reproduce some of it below.
It became clear to me during the panel discussion, what was illuminating about the Professions struggle against the Ministry of Justice for adequate legal aid investment and investment generally into our Criminal Justice System, despite what we are told by the Bar Council and Criminal Bar Association, the MoJ is not listening. They do not care, and in the words of one UVW worker, the MoJ is one of the worst and most devisive organisations she has had the displeasure in dealing with.
Despite needing the services of an interpreter, Fatima, a cleaner on the panel spoke eloquently and with conviction. All she and her fellow workers wanted was a living wage. Were the MoJ, an organ of Government supposedly dedicated to the rule of law and fairness, willing to give those cleaners a living wage without a fight? The answer is no. Cleaners at the MoJ are expected to clean hundreds of toilets per night each. Their treatment at the hands of the MoJ, pay and conditions are totally unacceptable. Did the MoJ listen to their legitimate concerns? Again, the answer is no. The conclusion of the Union representative Richard O’Keefe was that the MoJ, unlike many other employers they have had to take on, is not particularly worried about their reputation and so, there is no pressing incentive form them to concede too quickly.
I pose this question, will the MoJ invest hundreds of millions of pounds (for that is what’s required to begin repairing 20 years of cuts in pay, legal aid and working conditions) without a fight? If cleaners were forced to fight for their rights, the “fat cats riding the legal aid gravy train” will need to do the same.
The MoJ do not come to any negotiation for better and fairer legal aid fees with clean hands. Their recent strategy to bundle desperately needed prosecution improvements contingent on their defence colleagues to play ball, is disingenuous. Nor should we forget that AGFS11 resulted only but a few months later because the figures used for AGFS10 were deeply flawed. The MoJ knew this and took advantage until laid bare by the Law Society. Even then, it was like getting blood from a stone and had that work done by the Law Society not exposed the MoJ, each of you would still be working under AGFS10 rates. There are many other examples of MoJ bad faith and clandestine behaviour. These are just two.
It was the mighty Greek fabalist, Aesop, who first told the story of the bored sheppard boy who cried wolf amuse himself. After the third cry, the villagers didn’t run to the boys aid and his flock of sheep was scarttered and lost. Perhaps some had even perished. Although Aesop didn’t make it clear, it is not too difficult to imagine that wolves like the taste of sheep. The boy was found weeping alone by a villager and he asked why no one had come to help him. The boy was was met with this reply: “No one believes a liar, even when he is telling the truth!”
Now I don’t suggest the CBA is a liar, far from it. Nor do I suggest their members, of which I am one, are sheep. But I do say the Criminal Bar is like the boy, tantalisingly raising the prosect of long awaited action, the second call to arms in less than 12 months, only to publicly accept the MoJs offer, and of course, the Ministry of Justice playing the Wolf, only too happy to pit those who predominantly prosecute against those who mainly defend. The Ministry of Justice is only too willing to sacrifice the flock, and my fear is that having gained the support of our Solicitor colleagues, they shall not come to our aid should we cry wolf again in November, and the prosecutors who will have gained their small pot of jam today (and however small, it is richly deserved), might feel shy in standing with their defence colleagues tomorrow. The ballot results were telling. This was no Brexit slim majority. 60% agreed to suspend action on on the CBA’s recommendation is decisive enough for me to think there will be no action from the Prosecution ranks. Guaranteed there will be immense pressure for them to continue given the small concession made now. For what it’s worth, if a call to arms is presented again, I will answer it again.
The CBA called for a ballot of its members. It is logical to suppose they would only have so on the basis the CBA felt the need for a fresh mandate to implement action it has considered. The CBA set out in detail what it hoped to achieve and the means by which to do it. Our threat of action was partly successful as it was in April 2018. However, we let ourselves down in accepting far less than what we had originally contended for, and now, importantly, the Government knows it. Offer the Criminal Bar a crumb and so impoverished are we, we’ll go away. I accept the point made that such sums make a real difference for “junior junior” advocates. But those rates, even though an improvement, are still inadequate and further increases are still needed in due course. Simon Csoka Q.C. made the point that what was offered, whilst welcome is but a pittance in terms of Government spending. As part of the Government’s Brexit preparations, our well respected and erstwhile Lord Chancellor Chris Grayling, without apology, has recently wasted £85m on failed ferry contracts. I daresay it won’t be the last, but what what a difference it could have made to litigators and the Bar.
This is the 2nd strike or threatened strike action by the CBA since April 2018. Prior to that, and for the first time in the Bar’s history, Criminal Barristers and Solicitors united as we hit the streets, subjecting the Courts to days of action and implementing a “No returns” policy, and for those that dont know – refusing to undertake returned cases from other barristers who are unable to service the hearing or trial themselves.
The 2014 action was a response to the Government cutting the rates paid to the Bar on Very High Costs Cases, the most time consuming and complex cases prosecuted. One couldn’t move for Queen’s Counsel hogging the picket line and heartily encouraging the junior Bar to join them. What is striking about that action is how effective it was when senior and junior advocates came together, and where both sides of the profession were united. What was dissapointing is how only one side appeared to benefit from that action and how our Solicitor friends felt betrayed.
In April 2018, the CBA called for action again. Solicitor groups were involved but it was peripheral. Nonetheless, the Bar had their support. Our interests may be different in one respect, but we have a common aim which is seeking greater investment in the Criminal Justice System, and more specifically, greater investment in legal aid.
Hstory has taught us what the combined strength of the Bar and our Solicitor colleagues can achieve together. United we are unatoppable, fragmented we are far weaker, whether it is large firms against small, Bar against Solicitors or Silk v Junior. In the last week, two solicitors firms have announced that they are to close or have closed their legal aid departments. This is not unique and comes after numerous firms having either closed their legal aid departments or gone out of business completely. With reference to one of the firms mentioned above, a young mental health solicitor announced on social media she is now out of a job and desperately seeking another, and in the other example a specialist criminal and regulatory firm will now only deal with those who have private means.
The results of cuts to our Criminal justice System are obvious [and in the context of what I am asked to contribute tonight], it means highly dedicated professionals are left looking for alternative employment. Indeed, many have left both professions already, leading to a recruitment, retention and sustainability crisis, starkly seen in the heat map produced by the Law Society and a decline in criminal pupillages at the Bar. Many juniors have gone to work for City firms or sought to change their practice away from a life of crime.
The other obvious consequence is that such cuts are hurtling towards a two-tier system. Those that can afford justice might get it, and those that can’t almost certainly won’t. I say those who pay privately might get justice. Of course money helps, but the infrastructure of our Criminal Justice System is so decrepit, from the Police Station interview and Police who investigate, to a crumbling and diminishing Court Estate, through to a lack of Judges guarantees very little justice. The dedication of highly skilled professionals working for inadequate and insulting fees cannot continue. The guilty are more likely to go free, and more worringly the innocent will be convicted.
There are two essential groups within the criminal justice system, without whom it could not function at all. The Judciary and its advocates. Without adequate funding for those that make our system of criminal justice run smoothly, efficiently, safely and one of excellence hitherto admired throughout the world, the CJS will collapse and with it, the rule of law.
To be fair, the CBA have organised themselves well. And whilst I personally disgaree with their approach and the vote that followed, on balance they have provided their membership with enough information contained within the Monday Messages to be well informed. The consequence of that is the Criminal Bar can mobilise itself quickly whilst promoting a public message to Government. Unifying behind one professional body that claims to solely represent the interests of the Criminal Bar is helpful in terms of strike action. Whilst the Bar Council is generally supportive of what the CBA does, its remit is wider and not confined to a representing a single area of practice.
In my view, joint action with the Solicitors profession is now essential. A single body to represent the interests of the criminal legal aid profession (there is no reason why all those affected by legal aid cuts, from family to housing law should not be included) where the interests of the Bar and Solicitors coincide in seeking to force the government to invest and not arbitrarily cut would be of immense benefit. Unity is strength and division is weakness.
What works? Strike action and no returns. I believe the CBA’s recent action has worked to a limited extent. They organised effectively, mobilising the troops with information and gained the largest mandate at 94%. Frustratingly, I believe they could have gained further concenssions from the Government if they stood firm and I suspect momentum has been lost. The fact is, the Criminal Justice System and more specifically the Courts can’t run without the Bar and Solicitors, and there are no substitutes.
In terms of joint action, what is needed is a defined set of objectives the Bar and Solicitors profession can get behind. Without that, joining forces under the banner of a Union is unlikely to happen. However, I think there is hope in that regard, as cut upon cut hits both sides, our interests will coalesce further as we will have no choice but to fight to survive together. After all, the Bar needs Solicitors to instruct us and further planned cuts to the MoJ budget loom large.
We now have the results of the CBA ballot. In the heat of the aftermath I described the CBA as being cowardly. That was discourteous and I apologise. Nonetheless, the CBA is not immune from legitimate criticism. In my view they have made two fundamental mistakes, one possibly giving rise to the other.
The first is timing. The CBA have said that we are in a politically uncertain climate and so to take the offer now with respect to Prosecution fees can be “banked”. The problem with this is two-fold. It assumes the offer will be withdrawn once action commences. Of course the MoJ will say it is going to withdraw any offer as they would want to call our bluff. But commerical reality is that in order to bring damaging action to a close, the offer would still be open. If the timing of the action is not opportune because of Brexit and a summer recess is impending, why was this not factored into the equation? Brexit or not and holidays notwithstanding, our policitical servants would have to deal with the Bar’s action had it materialised.
The second mistake is then recommending a cessation of action. All of the CBA’s red lines pertaining to AGFS have been breached and then some. With respect to AGFS, the following is repeated verbatim, setting out what is contained in the Monday Message of the 30th May 2019:
“We need two things immediately.
Attached to these two immediate improvements is a detailed 3 page breakdown dated the 4th April 2019. We also need to bear in mind these demands were not said to be the quintessential end of what is required to repair 20 years of damaging cuts to legal aid but another “sticking plaster” pending the legal aid review, which is due for conclusion (not resolution) by the summer of 2020 at its earliest.
For those who challenged members that wanted to continue action as to their plan, I simply refer them to the above. My plan of action is that as set out in detail by the CBA. All that was required, was a political will to implement it.
The third test of the CBA will be this coming November. Our red lines are clear but as I shall comment below, they need need to be jettisoned to a certain extent. The MoJ has made promises apparently. Again, action was suspended to allow time to resolve three unacceptable iniquities of AGFS11:
“The MOJ has agreed to accelerate the review of AGFS scheme 11 in respect of (1) high volumes of evidence (PPE) cases, (2) cracks, and (3) the payment of unused material, and will publish proposals to deal with these three areas by November”.
This is all rather vague and when asked in a recent junior meeting what any S.I. will entail the CBA was equally ambiguous.
First, the offer makes no promise to improve fees. It offers no comfort that real investment will be given.
Second, any proposal will not be implemented until well into 2020 at its earliest. That is on the assumption the proposals are acceptable to the Bar. If they are not, a strike and other action will mean further delay. In terms of timing, this offer will become subsumed by the original timing of the review and we will have achieved little by calling off action now.
Third, the opaqueness of this undertaking appears on one view to breach what was set out in the CBA’s detailed demands. There will be a review into paper heavy cases, but will this be for all categories of case as set out at paragraph 4 of the demands? What of serious and complex cases that traditionally are not be paper heavy but nevertheless take time and care to prepare, such as sex offences or serious violence, again as set out in paragraphs 4, 5 and 6 of the demands?
Given that the MoJ has abandoned any notion to improve fees as suggested by the CBA, I hope the CBA revises its position to this extent. What is demanded in the detailed document of the 4th April is inadequate. At paragraph 4 the CBA ask for a PPE threshold uplift for all categories save 1.1 and 1.2 murder, 2.1 terrorism, 6.1 & 6.2 dishonesty and all drugs categories. Why? These are precisely the cases hit hardest and where many senior junior Counsel are suffering. Uplifts should apply in all categories without exception.
Nor are the percentage uplifts adequate if they are capped at 5,000 PPE = 400% given the brief fees are so low. For example, a human trafficking case with a time estimate of 6 – 8 weeks, where more than 10,000 PPE is served results in a brief fee of £9,200 (still lower than under AGFS9) whether 5,000 is served or 10,000 (or more). Again, as in many fraud and complex prosecutions, PPE well in excess is routinely served. No other area of practice would accept having to read and prepare an extra 5000 pages or more without compensation. Neither should the Criminal Bar.
November is only 4 months away. We should all expect that the CBA and BC will be working hard with the MoJ to come up with concrete and adequate proposals. They should not be the sticking plaster remedies as outlined in the CBA’S proposals given the point of the cessation was to bring forward a full and comprehnsive review designed to tackle inadequate fees.
There must be index linking so that fees do not slip and fall behind inflation as they have done since 1997, acting as a stealth cut. The remedies must be robust and ambitious to help the Criminal Bar thrive, restoring much of the 20 years of unjustified cuts, not merely allowing the CJS to survive by the skin of its teeth and goodwill. If substantial investment equates to many 10’s or even 100’s of millions, so be it. Afterall, it would be but a drop in the ocean of Government spending.
If these demands are not met in full, the CBA must shout for unqualified action for the survival of the Criminal Bar. If it does not, or worse, does so but waves the white flag of surrender a third time, it won’t only be the sheep that the wolf devours, but the boy himself.
Neil Baki
30.6.19
On 03 August 2018, the Court struck down the dispute between criminal legal aid solicitors and the Ministry of Justice in relation to the Litigators’ Graduated Fees Scheme (LGFS) . The Court upheld the judicial review challenge brought by the Law Society to a decision made by the Lord Chancellor to cut the LGFS. The Decision implemented by the 2017 Regulations was unlawful because the key analysis relied on in making the Decision (1) was not disclosed to consultees, rendering the consultation process unfair, and (2) used methods that were statistically flawed, making it irrational to rely on the analysis.
The court held (para 93):
“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 that a government ministry undertaking a consultation exercise will conduct it in a way which is open and transparent. In particular, they are entitled to expect that if, on the crucial question raised in the consultation paper, officials have carried out an analysis which forms the basis of the proposal, then that fact will be mentioned in the consultation documents and not left to be inferred”
Judgment is delivered shortly after two damning Justice Committee reports on the Disclosure of evidence in criminal cases (20 July 2018) and their report on Criminal Legal Aid (26 July 2018).
On 24 October 2017, the Ministry of Justice (MoJ) announced a 30%+ cut the LGFS which came into effect on 01 December 2017. The 2017 cut follows a previous cut to the LGFS in 2014 by 8.75%.
The LGFS relates to the way in which criminal defence solicitors claim payments for Crown Court work, based on certain proxy criteria which are indicative of case complexity. This can be compared to police station and Magistrates’ Court work which adopts a fixed fee. There are of course Escape Fee Thresholds, but ultimately a matter will bill as either a Higher or Lower Standard fixed fee (see s.3 and 11).
Perhaps the most important proxy is the amount of Pages of Prosecution Evidence (PPE), served on the Defendant. The changes to the Criminal Legal Aid (Remuneration) (Amendment) Regulations 2017 dramatically reduced the maximum number of pages claimable as PPE. In essence, the MoJ reduced the amount from 10,000 to 6,000 pages.
Which ever way one looks at it, this is by no means a stealth fee cut. It is an obvious cut to criminal legal aid which targets a significant number of the most complex cases in criminal courts. It targets work which ultimately subsidises the uneconomical unprofitable work. The cut essentially robs Peter of money which is built into the graduated fee scheme based on no evidence at all.
The criminal justice system is already significantly underfunded. As the Government continue to place a price and value on justice, ethical issues will undoubtably arise as to whether criminal defence can be done properly. Decisions about accepting non-profitable work are already being made. The profession simply cannot sustain itself, thus even The Law Society have issued guidance about accepting uneconomically viable work.
In my view, criminal legal aid solicitors are facing a crisis concerning succession, retention, diversity, sustainability, profitability and the disclosure of criminal evidence. Since 2010/2011, the Ministry of Justice budget will have been cut by 40% come 2019/2020. Criminal defence solicitors have not received a fee increase since 1998 and in real terms the rate has diminished further with regards to inflation.
If there are no criminal defence lawyers, there is no access to justice.
The Law Society Judicial Review: The Legal Argument
The judicial review of the reduction in PPE has four bases:
This was later confirmed in the judgment:
The Lord Chancellor’s decision is challenged by the Law Society, the professional body which represents solicitors in England and Wales, on four grounds:
(1) It is argued that the consultation process undertaken before the decision was made was procedurally unfair because during the consultation the Ministry of Justice did not disclose the existence of the analysis on which it had relied to estimate the amount of the increase in expenditure said to have been caused by the Napper decision. The Law Society and other consultees therefore had no opportunity to comment on this analysis.
(2) It is said that the decision was irrational because it was allegedly based on some manifestly erroneous assumptions including a misunderstanding of the effect of the Napper case and the analysis already mentioned which is said by the Law Society to have used a flawed statistical method.
(3) It is said that the 2017 Regulations made in order to implement the decision constitute a disproportionate and unjustified interference with the right of access to justice protected by the common law.
(4) It is asserted – albeit without much enthusiasm – that the decision confounded a legitimate expectation that no further reduction in criminal legal aid fees would be made before the Lord Chancellor had undertaken a review which has yet to take place.
The Litigators’ Graduated Fees Scheme (LGFS)
A statutory instrument, the Criminal Defence Service (Funding) (Amendment) Order 2007 was laid before Parliament to give effect to the decision to introduce the LGFS. The LGFS scheme came into effect on 14 January 2008.
What is PPE?
The LGFS determines what should be paid for each using a mathematical formula. There are several proxies which graduate the fee upwards, namely the pages of prosecution evidence served on the defence. Online calculators provided by the LAA enables litigators to work out what they will be paid.
The upper limit for the PPE proxy as originally enacted was 99,999 pages, which was the most significant determinant of remuneration in the system.
The methodology behind the graduated fee scheme is essentially “swings and roundabouts”. This is based on the notion that criminal defence firms litigated a mixture of matters from average, standard criminal matters, to more demanding, complex, matters such as murders.
Non-PPE work? – Wrapped up in the LGFS fee
Some aspect of the work done, i.e. that which progresses a matter through the criminal justice system and is fundamentally necessary is ‘wrapped up’ in the LGFS fee, thus excluded from being part of the PPE proxy. Overall, it is necessary work of which no additional fee can be claimed. See Appendix D for the list of wrapped up work. Of the 125 wrapped up work task, 63 fall to litigators alone or both advocates and litigators. As such, PPE alone is an inaccurate way of determining how much work is involved in a case.
Special Preparation
Associated with the LGFS are special preparation fee potentialities, enabling payment in limited circumstances for viewing or reading certain electronic material, but it does not cover any other associated work thereafter. In any event, the rates associated are low, remuneration is discretionary, claiming is problematic administratively and a high number are disallowed. Whilst special preparation claims are theoretically possible, the graduated fee scheme was not designed for such claims; the principle behind the LGFS removes justification, where as special preparation creates exactly that. Ultimately, the discretional element makes special preparation a flawed system of claiming remuneration and not being able to claim for additional PPE arising from special preparation is again uncomfortable.
The Law
In R v Napper [2014] 5 Costs LR 947, an officer asked himself whether the document electronically served (4921 pages of mobile phone data) had ever existed in paper form, thus decided to disallow it as PPE because it had not. The appeal against this decision was allowed:
“As Master Gordon-Saker stated in R v Jalibaghodelehzi, had it been intended to limit those circumstances only to the issue of whether the evidence would previously have been served in paper format, the Funding Order could easily so have provided. In my judgment, the regulation requires the Determining Officer to have a much wider role than as submitted by Mr Morris. He or she can take into account the nature of the document which clearly cannot be limited only to the physical nature of the document. Even if it did, the appropriate officer must also take into account all the relevant circumstances which clearly must go beyond whether or not the document previously existed only in paper form.”
Further still, @CrimeLine himself made the following submission:
“Mr. Keogh submitted that the mere fact that evidence is served in electronic format is no conclusive of the issue and gives as an example cases where paper documents are scanned into digital format. He further submits that even where the only obvious manifestation of the exhibit is digital, that is not conclusive of whether or not it has previously existed in paper form.
Mr. Keogh’s example of this was where one of the electronically served exhibits appeared to be a computer generated representation of incoming and outgoing calls. He states that the exhibit was clear not a simple deposit (or dump) of raw data as the document generated has externally applied attributes, namely the target telephone number, the incoming an outgoing calls and SMS data, and a date range. Mr. Keogh submits the significance of these attributes is that they were derived from other evidence that previously existed on paper, i.e the original investigation that traced suspects, seized phones, collected phone numbers and derived the parameters of the investigation and the relevant dates”
Future Funding for Criminal Legal Aid
In my mind, legal aid has three options: a fixed or graduated fee scheme, a salaried Public Defender Service (which has already proved to be costly) or remuneration based on hours spent on case.
Ultimately, criminal legal aid lawyers face a difficult time. The LGFS judicial review comes shortly after the Criminal Bar accepted a £15m offer from the Ministry of Justice in relation to the Advocates Graduated Fee Scheme (AGFS).
I do not think for a second that the LGFS or the AGFS are sufficiently remunerated. I truly believe the Government have placed a price on justice and if the budget forecasts are anything to go by, our justice system is about to feel the wrath of the treasury.
I call for the professional organisations to unite together to strategically draft a proposal in line with the solicitors Crime Contract, the parliamentary timetable and Brexit.
I ask this of the profession because as legal aid lawyers, we deserve far better than this, particularly when we compare ourselves to our commercial counterparts. See for example the view of Lord Thomas of Cwmgiedd, the former Lord Chief Justice on the earnings gulf and the City Solicitor’s views on publicly funded work v City law – two sides of the same coin.
The future of access to criminal justice is still at risk. Once it’s gone, it’s gone.
Stephen Davies
Trainee Solicitor, Tuckers Solicitors
daviess@tuckerssolicitors.com
03 August 2018
Stephen Davies
LL.M Legal Practice LPC (2017)
LL.M Criminal Law and Procedure (2015)
LL.B Law (2014)
September 2017
A thesis submitted in partial fulfilment of the requirements of the University of Sunderland for the degree of LL.M Legal Practice (LPC)
12,500 words
This dissertation consists of my own original work. Any part of which is not my own work has been cited and accordingly attributed to the author. I am also aware that the University of Sunderlands regulations relating to plagiarism apply. No component of this work has been submitted in support of any application for another qualification in the University of Sunderland or elsewhere.
Abstract
This enquiry seeks to examine the criminal justice system, questioning whether it is at breaking point because of cuts to legal aid. The thesis examines the issue through an exploration of suspects rights and challenges such as adverse inferences and early guilty pleas. Addressing suspects’ rights will provide context for significant discussion surrounding delay and cost, with debate throughout highlighting restrictions and attacks on access to justice and legal aid from a criminal perspective. The aim is to consider whether the system is being undermined because of reform.
The thesis questions the Governments actions and intentions, before making several progressive recommendations, but by no means creating a ‘one size fits all’ solution. By addressing core issues, this will provide a series of proposals that may encourage the Government to rethink its approach when reforming the legal aid system, and more broadly, the Criminal Justice System, to a standard of high quality. Protecting suspects rights and ensuring a viable business model is in place for criminal defence advocates, is paramount if our system is to continue being a world leader in criminal justice.
Contents
Chapter 1: Introduction
Chapter 2: Criminal Legal Aid
History and Background in England and Wales
An Assault on Access to Justice
Operation Cotton
What Should It Look Like?
Modern Criminal Legal Aid
Concluding Remarks
Chapter 3: Suspects’ Rights and Rules
Introduction
What are a Suspects Rights?
Why do Suspects Need Rights?
Adverse Inferences – Silence
Guilty Pleas
Concluding Remarks
Chapter 4: Delay
Introduction and History
Suspect Delay
Complainant Delay – Help or Hinder?
Delay – Disclosure Evidence
Stay and Delay
Concluding Remarks
Chapter 5: Cost
Cost>Choice?
Concluding Remarks
Chapter 6: The Future, Recommendations and Conclusions
Impact on Advocates and Business
Impact on Suspects
Recommendation 1: Declining Flexible Operating Hours (FOH) Pilot Scheme
Recommendation 2: Getting the Basics Right – A Review of the CrPR
Recommendation 3: Considering Solicitors’ and Barristers’ Fees Together
Recommendation 4: Public Interest Information
Recommendation 5: Royal Commission on Criminal Justice System
Recommendation 6: Unity: An Independent Representative Body for the Crime Contract
Conclusion
Note
The law is stated on the 29 September 2017.
Chapter 1: Introduction
(1)“Everyone charged with a criminal offence shall be presumed innocent until proven guilty according to the law” – European Convention on Human Rights, Article 6(2)
(2)“We will sell to no man, we will not deny or defer to any man either Justice or Right” – Magna Carta 1297
Criminal legal aid continues to be a subject of reform in the political arena, as attempts are made to reduce the expenditure across the entire public sector. Recent reforms on criminal legal aid suggests the Government have now placed a price on justice.
Legal aid ensures defence lawyers can financially and viably protect and uphold suspects’ rights throughout the criminal litigation process. It is a fundamentally important aspect of our CJS, with the duty and onus on the Government to uphold the rule of law and provide a fair trial to all those accused of criminal wrongdoing.
This paper seeks to address the CJS, questioning whether it is being undermined by cuts to criminal legal aid, thus restricting access to justice for suspects alike caught up in the system.
By outlining areas that require urgent reform, it is hopeful that the Government will restore the balance between the defence and prosecution, thus enabling the system to acquit the innocent and convict the guilty. (3)
Chapter 2: Criminal Legal Aid
History and Background in England and Wales
Legal aid’s “founding text”(4) is 72 years old, thanks to Lord Rushcliffe’s 1945 Committee which was set up following a national justice crisis. The report outlines past practices both in the office and at the Bar. It reflects upon pastimes whereby a man worth no more than £5.00, was required to swear an oath to sue.(5) Later, it discusses the Bar being obliged to accept “dock briefs,”(6) with judges often asking members of the Bar to defend gratuitously, “from a time immemorial”(7) when it came to those unable to pay. Similarly, Solicitors were given equal credit, “[there is] probably a few Solicitors offices which do not habitually carry clients from whom no payment will ever be asked in view of their circumstances.”(8)
The Committee concluded that the cost of a publicly funded legal aid system should be borne by the state and administered independently.(9) Crucially, it was thought that “Barristers and Solicitors should receive adequate remuneration for their services,”(10) before concluding that they were satisfied “…that it would be impossible for a Solicitor adequately to prepare a case without being seriously out of pocket at the present rate of remuneration.”(11)
Although Rushcliffe made “relatively modest recommendations,”(12) it is interesting to note the prevalent issues many decades ago, before analysing and comparing them to modern day criminal practice.
Fast forward to 1993, Lord Runciman conducted an examination of the CJS across the board, due to serious issues that were a concern to all. His Lordship made many recommendations, including fee scales for counsel to be revised for proper remuneration(13) and keeping legal aid fees under review to ensure they are adequately attracting sufficient number of competent lawyers.(14)
An Assault on Access to Justice
Reforms regarding criminal legal aid and indeed the CJS have arrived in waves, restricting the defence community’s ability to provide access to justice. This can be seen in respect of the PCT(15) slashing VHCC and Operation Cotton,(16) dual-contracts,(17) cuts to solicitors’ fees by 8.75% in 2014, with another on the horizon(18) and further suffering likely for junior lawyers should the reviewed AGFS/LGFS be implemented.(19)
It is with regret that recent Governments have “repeated failures to engage in meaningful consultation with the legal profession…”(20) on their records. It is particularly worrying to comprehend the June 2015 statement by YLAL suggesting the dual contract consultation was nothing “…other than an email 48 hours before the cuts were announced…”(21) The continuing onslaught to slash fees and dismiss the profession that underpins the CJS, is undermining it to an unrecognisable state of affairs.
Lawyers have advocated relentlessly against changes to the system. It would be understandable if any legal aid lawyer fought simply on the basis that they want to avoid their wages being cut. But the fight against the Government has not been a selfish battle of fighting for personal wealth – it is so much more. Criminal defence solicitors and barrister allow access to many doors of justice through their firms, chambers and experience. It is such access that brings the government to account and enables a strong defence for those who advise of their innocence. Even for the guilty, it is a service that protects individual wellbeing against the State’s large budget for prosecuting and from abuse of power.
Operation Cotton
The defence has had enough. When the Government slashed VHCC, Operation Cotton came into existence through R v Crawley.(22) When there were no longer any lawyers willing to take instructions, proceedings were stayed on the basis the accused could no longer receive a fair trial. Leveson held stay of proceedings in the criminal law was “effectively a permanent remedy, [and] thus a remedy of last resort.”(23) Operation Cotton marks a victory in the battle against restriction and highlights the importance that suspect have access to the courts, subject to limitations.(24) The State’s ‘wide margin of appreciation’(25) is so much so that legal aid is not always available. It is not always the case that the individual won’t be able to obtain it, but rather the profession is unwilling to provide. Essentially, legal aid in nature, calls for regulation by the State. Despite the tendering process and contracts with the MoJ, if the defence community feels the pinch to the extent they cannot continue to operate in profit, it won’t be business as usual. The final say on the matter “rests with the Court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired.”(26) The final say may be with the court, but it is the responsible of the Government to ensure access to justice in the first place.(27)
This does not equate to a ‘one-size-fits-all’ approach, but rather the State has protected all those in the CJS, provided a fair trial and abided by the rule of law.
The most recent attacks have produced significant legislative change. LASPO decimated the legal aid market causing much of the dismay voiced today. A recent review by the Law Society suggests “[the act has had] a corrosive impact on access to justice. The evidence now available shows that our fears were justified.”(28) Justified or not, the system may in this respect be standing, yet the destructive nature of the changes drives the CJS away from stability and places it into an arena of uncertainty.
What Should It Look Like?
The Courts have already expressed what access to criminal justice should look like in E&W. It is three interconnected free standing rights requiring protection from abuse of power. In R v SSHD, Lord Bingham categorised them as the right of access to a court, the right of access to legal advice and the right to communicating confidentially (LPP).(29)
The courts themselves will not restrict access; in Raymond v Honey, the court held restriction would not take place “unless it is expressed by Parliament in the clearest possible language.”(30) Similarly, in Ex P Witham, the court held “the executive cannot in law abrogate the right of access to justice, unless it is specifically so permitted by Parliament.”(31) The right of access effectively constitutes an element which is inherent in the right stated under Art. 6 of the ECHR.(32)
The second of Bingham’s rights, legal advice, enjoys a similar standing at both Strasberg and domestic court level. The ECtHR stated, “the assistance of a lawyer when such assistance proves indispensable for an effective access to court…”(33) More recently, access to advice was considered “one of the fundamental rights enjoyed by every citizen under the common law.”(34)
The ECtHR has affirmed fairness over ease; “…the right to a fair administration of justice nevertheless holds such a prominent place that it cannot be sacrificed for the sake of expedience.”(35)
Fairness often entails adequate legal representation to ensure access to justice. In Twalib v Greece, again the ECtHR held the interests of justice requires legal representation dependant on the seriousness of the offence, severity of possible sentence, complexity of case and the legal skills, knowledge and experience required to bring an appeal.(36)
Modern Criminal Legal Aid
Funding today is allocated to the LAA by HM Government, for which firms of solicitors are remunerated for the work they do on behalf of their clients. Suspects may be ‘own clients’ – i.e. the suspect asks for a specific firm or solicitor directly, or ‘duty client’ – acquired via the duty rota system; this provides opportunity to convert to ‘own client’, through rapport building.
Legal aid enables criminal defence practitioners, contracted with the MoJ,(37) to be paid when attending police stations throughout E&W when an individual has been arrested and suspected of committing an offence. Further still, it also covers proceedings thereafter, (subject to eligibility and means testing) from the local Magistrates’ Court, to trials in the Crown Court. Payment is received for both litigating and advocating throughout the case. It is together that Solicitors and Barristers are unified and work in conjunction with one another to represent clients based on instructions and in the client’s best interest.(38) Unity and professional relationships are crucial in today’s market, but fundamentally important for modern criminal legal aid.
The MoJ think “the system has lost much of its credibility with the public,”(39) despite 80% believing the system treats suspects fairly.(40) It is difficult to define a precise point in time when criminal legal aid started to significantly change;(41) perhaps the mid 1990’s – mid 2000’s can be considered a critical time for criminal legal aid. Lately however, successive Governments and media outlets have caricatured legal aid lawyers as “fat cats,”(42) exploiting tax payers to get rich. This is simply a myth, misleading the public out of context.(43) The Government can do so because few votes are lost when attacking the CJS/legal aid;(44) it strengthens their ‘tough-on-crime’ agenda amidst periods of negative political will.(45)
Concluding Remarks
Nevertheless, we need legal aid in modern day society; it is the heart of our justice system. Back in 2012, the UN recognised that:
(46)“legal aid is an essential element of a fair, humane and efficient criminal justice system that is based on the rule of law and that it is a foundation for the enjoyment of other rights, including the right to a fair trial, as a precondition to exercising such rights and an important safeguard that ensures fundamental fairness and public trust in the criminal justice process.” – UN General Assembly Resolution 67/187, 20 December 2012 at 2
The extent to which legal aid allows this, remains up for discussion. Reports on legal aid and later the full-spectrum of the CJS, have already highlighted that revision of adequate fees is crucial for access to justice. The profession is a force to be reckoned with, requiring unity to provide the ultimate defence. For now, at least, the courts are clear about what access to justice should look like, even if the system has lost its credibility. It won’t be the supposed fat cat lawyers who degrade its credibility, but the Government itself.
Chapter 3: Suspects Rights and Rules
Introduction
In E&W, legal aid ensures the Government abides by the rule of law when suspects are in custody. Many suspects are dealt with by prosecuting organisations, such as the CPS. It is their job to “prosecute criminals effectively.” They do this with the support of the police who often interview suspects under caution. The interview, also referred to as the interrogation of the suspect, is thought to “bear the most fruit in the investigation.”(47)
It is accepted that “at various points suspects may drop out of the system”(48) and that law reporting creates a distorted picture of criminal law.(49) Yet ultimately, no matter what stage the investigation is at, or the extent to which public perception is distorted, “it matters how [suspects] are treated.”(50)
It is these basic principles of the criminal litigation process that defence advocates should bear in mind. The ECHR states everyone charged with a criminal offence should be presumed innocent until proven guilty under Article 6(2).(51) This applies from the outset of an investigation when a suspect is arrested and questioned, regardless of the offence in question. Some are – shock, horror! – innocent. It does and can happen.(52)
As arrests and prosecutions are brought by the state, it is only fair that the prosecution should seek to prove the case.(53) The burden of proof principle was laid down in Woolmington v DPP, per Viscount Sankey L.C: “No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the [suspect] is part of the common law of England and no attempt to whittle it down can be entertained.”(54) Thereafter, in BM&J v Spain, the ECtHR added “…any doubt should benefit the accused.”(55) This was followed by Denning J in Miller v Minister of Pensions who provided the criminal standard:
(56) “If the evidence is so strong against a [suspect] as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible, but not in the least probable,” the case is proved beyond reasonable doubt, but nothing short of that will suffice”
The combination of convention rights, burden and proof and criminal standard may, on the face of it, suggest the Crown has a high threshold to meet. But the fact a suspect can in theory be convicted without absolute certainty, provides the Government with a duty to those caught up in the process.(57) Without absolute certainty, the doors of justice must be kept wide open, even for those that consider a miscarriage of justice has occurred.58
What are a Suspects Rights?
Anyone and everyone can be a suspect. Criminal law in this respect does not discriminate. Powers conferred in PACE 1984, enable suspects access free legal advice at the police station.(59) It is a right that belongs to the suspect and a right without an onus on a criminal defence practitioner to provide it. In Chief Constable of Kent v. Rixon, Lord Justice Brooke held that “…a solicitor has no such right. Any relevant right vests in the client and in the client alone.”(60) However, it is still possible a suspect will be denied access to a solicitor and “…subject to restriction for good cause.”(61) It is felt that “the aim of the Convention is to protect rights that are not theoretical or illusory but practical and effective.”(62)
Why do Suspects Need Rights?
Suspects need their rights implemented in practice to ensure they receive a fair trial as per Article 6 of the ECHR. The difficulty is that “the court has to balance the need to ensure that the integrity of the criminal justice is preserved against the need to ensure that a person who is accused of an offence should be tried for that offence. A person who is innocent may want the vindication of an acquittal, and the victim of the offence may feel cheated of justice if no trial takes place.”(63) Such a need has created a CJS that is adversarial in nature.
As anyone can be a suspect, the law is reflective of this, making way for representation during interview and at court. A suspect, without representation, is thought to be unable to make “…a useful contribution to the examination of the legal issues [when they arise].”(64) Although it is not always the case that a suspect needs it, but rather they don’t want it. This was a matter discussed in the dissenting judgements in Strasberg who considered the possibility of a suspect losing faith in his defence lawyer and being entitled to refuse the assistance of a lawyer in whom the suspect had no confidence in.(65)
It is preferable that a suspect obtains representation from the outset. Belloni and Hodgson drawn attention to such immediacy; “the police station is the key site in the construction of the case against the accused and is therefore central in understanding and tackling some of the major causes in miscarriages of justice.”(66) But it is not just the Police Station that a suspect can fall foul to the system; “if the courts turn a blind eye to egregious malpractice by the police or prosecuting authorities, the fairness of the system is endangered, and that is a very serious matter for all who are suspected of crime, both the guilty and the innocent.”(67) Whether it is from the start or nearing the end, suspects need protection. It is such rights and dangers, in-conjunction with the presumption of innocence, which provide the rationale for rights, those which underpins the CJS.(68)
Introduction: Adverse Inferences and Guilty Pleas
Suspects not only need rights, but they need protection. Adverse inferences and guilty pleas are examples of the many challenges in the CJS. Contextually, they emphasise the necessity of the right to legal advice and why police station advocacy is paramount. However, it does not stop there – cost implications on pleas form a very small part of an overall cost restricting regime that impacts on suspect, adviser and business.
Adverse Inferences – Silence
Advising suspects’ of the consequences of silence is paramount should the suspects’ instructions indicate they wish to remain silent during interview. During trial, the judge may direct the jury to draw adverse inferences, providing six conditions have been met as per R. v Argent,(69) in accordance with the CJPOA 1994, s. 34 – 39. Adverse inferences can be drawn in several different ways. In R. v Mason for example, “the police…hoodwinked both solicitor and client…. [the judge did not] ….exercise [his] discretion correctly.”(70)
It is not always possible to know whether the jury have indeed drawn an adverse inference. A suspect may argue that his silence was based on legal advice, yet the court will not “consider…criticisms of counsel…to assault the safety of the conviction.”(71) The jury are “perfectly entitled to draw adverse inferences from the appellant’s no comment interview.”(72) Instead, the court will give due weight in such circumstances. Ultimately, “It cannot be excluded that the jury [will] accept [the suspect’s] explanation for his silence and did not therefore draw an adverse inference against him.”(73)
Advocating to and on behalf of the suspect for this reason is critical. In R. v Alfie Good, Lord Justice Simon criticised the Advocate, despite the conviction remaining safe: “First, he told the appellant that things could not get worse if he did not give evidence…. Second, the nature of the adverse inference was not explained.”(74) He later confirmed the direction that should be given to the suspect:
(75) “If aspects of the prosecution clearly call for an explanation, which the defendant is able to give …then a failure to give any explanation may … allow the drawing of an inference that there is no explanation, or none that will stand up to cross-examination.”
It follows on that silence and later the possibility of adverse inferences being drawn may significantly impact on the trial. Suspects need advice to ensure they proceed knowing all the risks associated with any decision they make. However, as explored later in this thesis, advice may vary dependant on the disclosure given to adviser and suspect. It may retrospectively seem unusual that a suspect has remained silent if later he relies on an explanation. The fact of the matter is, advising suspects with limited disclosure, may simply be to remain silent until the prosecution proves its case against the suspect.
Guilty Pleas
Suspects also need protection from being pressured to plead guilty; “whenever a person knows, or believes that there will be a choice between accepting a caution and risking prosecution, there is bound to be pressure to accept the caution. The disadvantage of this must be minimised by ensuring that legal advice is always available.”(76) Further still, Cape believes “difficult defendants are pacified, they are schooled in what to say in court, and they are advised to plead guilty when, left to their own devices, they may not have done so.”(77) The system is tailored to school suspects’ to the extent that they must consider the advantages, i.e. a discount, rather than trying their luck.(78)
Nevertheless, suspects’ cannot always fall back on their convention rights. In X v United Kingdom,(79) the court held that if there were adequate safeguards in place against abuse of power and process and that the Judge is satisfied the accused understands the effect of his guilty plea, this would not infringe the rights provided by the Convention, namely Article 6(2).
The balance for the defence lawyers is protecting the suspect from being pressured and lured into pleading guilty, thus upholding their right to liberty, against the prospects of conviction and advising upon a guilty plea at an early stage which may be used in the sentencing hearing as crediting mitigation. The balance is particularly fine, so much so that the Sentencing Guideline Counsel have used “cautious, deliberate and wise”(80) terms on this topic.
Again, there is considerable pressure and a requirement for defence protection when considering the Goodyear procedure – a suspect contemplating a guilty plea may request a Goodyear indication of the maximum sentence they are likely to receive, should they plead guilty. Ashworth and Redmaye believe this imposes “considerable pressure on the guilty and innocent alike.”(81)
The Home Office do recognise the issues of early guilty pleas; “We do not take lightly the danger of putting innocent defendants under pressure to plead guilty. To minimise that risk, we will incorporate safeguards. The defendant, through their legal advisers (who should advise them not to plead guilty unless they are guilty) should initiate the request.”(82) This alone highlights the importance of suspects, particularly those who are genuinely innocent, of the availability of defence lawyers.
Although it is concerning that the Home Office think this is adequate in the hands of defence lawyers without prioritising the rule of law and presumption of innocent.
Suspects rights in this sense may exist, but they are far outweighed by cost saving implementations such as early guilty plea appetisers to drive down the cost. The Commons Justice Committee do offer some reassurance highlighting “the presumption of innocence is at the very heart of the criminal justice system, protected under the common law and by international human rights law…it is the intention of the guideline to influence the timing of guilty pleas, but not to influence the rate of guilty pleas entered.”(83) It remains questionable whether a fundamental concept of the CJS should be protected more so, rather than eroding it through other channels?
Early guilty pleas are another example of cost-cutting, forcing suspects to cautiously proceed through the system. Defence advisers may provide a safeguard, preventing suspects from committing to a guilty plea when the Crown is yet to establish its case. But the fact the system requires such a decision at an early stage, raises questions about the integrity of the system – are we now enticing suspects to avoid cost? Principles such as the burden and standard of proof may soon become a principle echoed in legal textbooks and forgotten about in our courts.
There is evidence to suggest this is already happening in practice; in June 2016, the House of Commons Justice Committee produced the Report, Reduction in Sentence for a Guilty Plea Guideline, questioning whether there is pressure to plead?(84) As discussed later in cost, there may well be the pressure to plead, but at the very least there is a significant opportunity and incentive to plead. The acronym PTPH may no longer represent “Plea and Trial Preparation Hearing”, but rather “Pressure to Plead Hearing”; that alone, is a daunting prospect.
Concluding Remarks
Through legislation, common law and European interpretation, we have a set of well thought out rules which protect suspects’. It is this protection that matters, for it is a system which in nature cannot provide certainty.
Advocates will continue to be well placed to ensure the State abides by the rules. However, suspects now face inequality; the balance of the scales of justice are weighted against the individual and towards the state.(85) Suspects and Advocates alike face a mountain of pressure as both navigate through a CJS that erodes even the most basic of principles.
Chapter 4: Delay
Introduction and History
The CJS is prone to delay due to immeasurable factors and reasons. The number of variables required to fall into place to enable access to justice is significant. Delay has and will, continue to exist in some fashion or another. Yet, the current system as we find it, is stretched and damaging in the Police Station, Magistrates’ and Crown Courts.(86)
Delay was recognised in Bushel’s Case,(87) establishing the importance of the writ habeas corpus – a suspect under arrest should be brought before a court; to secure release or validate detention. More recent decades have highlighted the varying causes and impacts of delay, often with the courts sympathising and directing for future recourse.
Suspect Delay
Delay may be caused by the suspect themselves. In Konig v Federal Republic of Germany, the court concluded that “delays occasioned by the difficulties in the investigation and by the applicant’s behaviour do not of themselves justify the length of the proceedings.”(88) A year later in Stogmuller v Austria, the court held that provisions apply “to all parties to court proceedings and its aim is to protect them against excessive procedural delays; in criminal matters, especially, it is designed to avoid that a person charged should remain too long in a state of uncertainty about his fate.”(89) The ECtHR has since made it clear that the ECHR underlines the importance of rendering justice without delays which might jeopardise its effectiveness and credibility.(90)
Complainant Delay – Help or Hinder?
Delay may not be procedural or caused by the suspect. In R v Telford Justices, the suspect was interview over an historic allegation. The court held “…to investigate an alibi for an unknown Saturday evening in a year commencing 16 years ago is a doomed enterprise.”(91) Undoubtedly this causes problems for those advocating and advising suspects in custody; often the case may be, the suspect can only say “I didn’t do it”, considering the significant period of delay.(92) Suspects and defence lawyers face an even greater task as the offence in question may not warrant a “particular alibi for a particular day.”(93)
Doomed enterprise or not, a complainant’s delay may not help or hinder the defence. It is the uncertainty alone that stresses the needs for suspects rights and advice. Suspects face an improved complainant friendly CJS,(94) albeit a system that may well believe complaints to the extreme.(95) That is not to suggest complainants should be deterred from coming forward, but rather there is a greater need for suspect protection, thus little evidence in this context which justifies anything which adds to the pressure of criminal litigation.
Delay – Disclosure Evidence
The courts have provided damning judgements when it comes to delay. Yet modern legal practice still struggles to tackle the hindering issue of delay as a result of disclosure failures. Suspects going through the CJS today face “waiting for trial[s] [that] imposes considerable stress…especially those remanded in custody.”(96) This is amplified by the police and prosecutions inability to serve and disclose evidence promptly on the suspect or defence lawyers.
The evidence disclosed to the suspect and his advisers is the centrepiece of the trial process, perhaps now than ever before.(97) It is incomprehensible that disclosure issues are rife in practice today. Only if the prosecution has exercised due diligence and expedition should the prosecution be allowed to request more time.(98)
However, analysis of the CrPR shows the overriding objective to be of paramount importance. Criminal cases should be dealt with efficiently and expeditiously(99) following the “fundamental change”(100) that transformed the way cases are conducted. The CrPR means all criminal lawyers must be concerned with both winning their cases and ensuring their cases are dealt with justly.(101) Their duty is not clear, but crystal clear; participants “must” prepare and conduct in accordance with overriding object, Rules and Practice Directions and inform all parties and the court of any failures.(102)
PACE and the Codes of Practice that govern police interviewing practices, only requires the police to disclose “sufficient information to enable them [the suspect and legal adviser] to understand the nature of the offence and why they are suspected of committing it.”(103) Similarly, case law suggests that the Police are not obliged to disclose every piece of evidence(104) with examples on the opposite end of the scale highlighting blanket disclosure – a method presumably deployed by the Police and CPS “to err on the side of caution.”(105) Recently, a police force disclosed a victim’s mobile number to her partner’s solicitor having accused him of domestic abuse.(106)
Research studies have shown that defence lawyers prefer all the evidence available before advising their clients;(107) without adequate disclosure, advising suspects’ to answer questions or remain silent is difficult, if not impossible.(108) Similar research has highlighted more troubling concerns for suspects and lawyers; “some police officers may give suspects the impression that they possess stronger, more damning evidence than they actually do.”(109) This raises significant concerns for those unrepresented in custody and again highlights the importance of practitioners specialising in criminal law.
The courts have made it clear where they stand on late disclosure. Mr. Justice Sullivan appreciated all Crown Courts have difficulties and pressures but concluded, “it is for the executive, if it wishes the court system to try its citizens, to will the means to enable them to be tried in an expeditious manner.”(110) The cases of Boardman and Salt have once again highlighted the judiciaries dismay at late disclosure evidence. Firstly, in Boardman, Sir Brian Leveson was unsurprised at the exasperation of the Recorder.(111) He held that:
(112) “it is beyond argument that the defendant would have suffered prejudice: this complaint (dating back to 2013) had been hanging over his head for many months and he was being asked to wait a further eight months before it would be resolved. Finally, whereas we have no doubt that the judge fully recognised the pressure under which the CPS was working, if effective case management is to mean anything that could never be an answer for it would effectively be to abnegate responsibility for trial progress and make it subject to the vagaries of CPS preparation” – Sir Brian Leveson, President of the Queen’s Bench Division
Leveson later added that it wasn’t just the CPS under pressure; “defence lawyers on a fixed fee must attend more hearings than would otherwise be necessary, thereby reducing the rate at which they are being remunerated.”(113) In R v Salt, Lord Thomas was also aggrieved: “It is where continuation would offend the court’s sense of justice and propriety or would undermine public confidence in the criminal justice system and bring it into disrepute that a court should make an order which would have that effect.”114 The court then held that there is “no doubt that there are failures of the prosecution where the court should act so that the proceedings do not continue. In R v Boardman the failure was clearly such as to undermine confidence in the criminal justice system and to bring it into disrepute.”115
Again, the defence community has had enough of disclosure delay. In August 2017, the CLSA initiated a survey for advocates to voice their dismay at untimely disclosure;(116) the interim results are of great concern.(117) There can be no doubt that conduct which ignores the rules set out in the CrPR, will have an adverse impact on the fairness of proceedings. The Government cannot have it both ways. They must ensure the basic rights of a suspect are respected. It is seemingly difficult for the State to implement, yet the principle is more simplistic – all citizens deserve to know the case against them. Otherwise, how does anyone process and prepare adequately?
Stay and Delay
The courts provide a suspect with a limited degree of protection and an avenue towards justice. In Connelly v DPP, Lord Reid thought there must be a “residual discretion” to prevent an abuse of process.(118) This soon followed by Lord Devlin who considered the issue to be of “great constitutional importance.”(119) His Lordship went on to question, “are the courts to rely on the Executive to protect their process from abuse? Have they not themselves an inescapable duty to secure fair treatment for those who come or are brought before them?”(120)
The courts have done just that. Suspects may have the benefit of a stay of proceedings – constitutionally, halting the criminal litigation; a power and duty held by the court to protect its own purposes and functions.121 Crucially, the burden of proof lies with the party seeking the stay with the standard of proof being on the balance of probabilities – the civil, rather than criminal standard.122
However, Lord Lane C.J. held in AG’s Reference (No. 1 of 1990) that “stays imposed on the grounds of delay or for any other reason should only be employed in exceptional circumstances.”(123) His Lordship then went on to say that “no stay should be imposed unless the defendant shows on the balance of probabilities that owing to the delay he will suffer serious prejudice to the extent that no fair trial can be held.”(124) It is his latter comments which again highlight the necessity of defence lawyers present throughout the entire process. Criminal law in this respect is complex enough for defence lawyers, let alone a suspect with little experience of the CJS.
Suspects are also entitled to a fair trial “within a reasonable time,”(125) but a stay will not occur unless the hearing will not be fair or it would be unfair to try the defendant. When deciding whether to proceed, it is the “…public interest [that is] the final determination of criminal charges.”(126)
Taking advantage of delays is well contended in the CJS which may lead to frustration should those that are guilty ‘get away with it’, based on a technicality. In R v Gleeson, Lord Justice Auld held:
(127)“…a prosecution [should] not be frustrated by errors of the prosecutor, unless such errors have irremediably rendered a fair trial for the defendant impossible. For defence advocates to seek to take advantage of such errors by deliberately delaying identification of an issue of fact or law in the case until the last possible moment is, in our view, no longer acceptable, given the legislative and procedural changes to our criminal justice process in recent years.”
However, we should be mindful that this is a “…commonplace in criminal trials for a defendant to rely on “holes” in the prosecution cases.”(128) Defence lawyers are there to advise their clients based on instructions; it is by putting the clients ‘best foot forward’ that is unquestionably in the client’s best interests. Although, just because material which may have assisted the defence is missing (the hole), does not mean it will lead to a stay.(129) A stay can be refused if there is untainted, credible evidence.(130)
The courts have also considered the length of the delay against the fairness of proceedings. It was reiterated in Mellors v UK that reasonableness is considered circumstantially, along with the complexity, conduct of applicant/authorities and what is at risk for the applicant.(131) Whilst one year per case may be a general rule of thumb, cases “concerning issues of liberty, requires particular expedition.”(132)
Suspects may wish to apply for a stay for abuse of power on the grounds of delay, providing the principles in R v S (SP) have been met.(133) It was submitted by Sir Brian Leveson that if “…there is clear authority for the proposition that such delay may be cured by a reduction in sentence.”(134) It is questionable whether suspects should be awarded a reduction in sentence if the trial overall is deemed unfair. Early pleas, together with discount for abuse of power, suggest a focus on convictions, rather than abandoning cases that have fallen below the standards set out by parliament, common law and Europe. Access to justice will always be limited if the system favours the Crown, over the innocent until proven suspect.
Concluding Remarks
Although the job of the CPS is to prosecute criminals effectively. There is strong evidence that the CPS is over-centralised, bureaucratic and inefficient, with cases too often dropped, delayed, or downgraded to lesser offences.(135) Fast-forward almost 20 years and Padfield’s comments seem all too familiar. However, it is important to appreciate delay is not necessarily due to criminal legal aid cuts, but because of a restriction on the entire CJS. This leads to exploration as to whether the system is at breaking point because of a multi-pronged attack. In any event, delay is limiting access to justice, regardless who is the cause of it.
Delay may be considered self-generating,(136) but it is fundamentally important that our CJS resolves cases as quickly as possible so that all involved can get on with their lives.(137) Delay is one of the most challenging flaws the CJS needs to overcome, but how it does so, is an entirely different subject altogether.
The courts however, have provided the strongest indication of what would happen if the CrPR has not been followed. In R. v R,(138) Leveson draws once again upon the likes of Boardman and Salt. Even though a stay is public interest, a last resort and done so in exceptional circumstances, the court has outlined what could happen. The prosecution must be in the driving seat; encourage dialogue; do so subject to case management; act flexibly; and do so without attempting the impossible. Failures can bring prosecutions summarily to an end. Compliance with the CrPR is therefore crucial to avoid suspects facing self-generative stress and uncertainty. A stay or discount on sentence is not the way forward.
Chapter 5: Cost
The Government have made it clear they are significantly reducing the legal aid budget with savings of £220 million per year by 2018/19.(139) But it is not just the defence community who will find it difficult to operate; the CPS budget is to be reduced by 2019/2020(140) and at the same time courts up and down the country are shutting their doors for good in a bid to save on cost.(141) The knock-on effect of reduced cost has, as Clarkson puts it, “led to a good deal of ill-feeding between police and CPS.”(142)
It was only a couple of years ago that the former Lord Chancellor, Chris Grayling MP said “…we are not going back to the start and must bear down on the cost of legal aid.” (143) If legal aid is not going back to the start, the question remains, where are we going?
The knock-on effect of cost cutting from the defence perspective may indeed provide the answers for the future. The Government have been relentless in their attack on legal aid fees and they don’t appear to have finished. Smith describes Best Value Tendering as “unsustainable suicide bids”(144) and that is before the idea of PCT has even been contemplated.(145) Later, duel-contracting discussions show Grayling appearing to indicate a moment of grace, accepting if he applied the 17.5% cut across the board, the consequence would be unmanageable. But this was short lived – “the whole objective of this is to have a managed transition.”(146) The idea of providing a manageable criminal legal aid system is welcome, given managing and sustaining legal aid, is thought to be “closely linked to the issue of profitability.”(147)
The reality is firm’s margins are tight. The more time a lawyer spent on a case, the less profitable it becomes.(148) Time raises questions as to why more time is being spent on criminal matters? Perhaps the substantial number of acts of parliament being passed in relation to the CJS is generating new and more complex work, thus driving up the costs?(149)
Of course, costs can be minimised through procedural checkpoints. The CPS two stage test(150) for example ensures trials (and associated cost) proceed with good reason. Although it has been suggested “there are still cases which the CPS pursue even though they know that there is insufficient evidence, perhaps to retain good relations with the police or out of a pro-conviction motivation inconsistent with the ‘minister of justice’ role that prosecutors are meant to adopt; this is unethical.”(151)
How the Government will proceed currently remains up for discussion. Consultations relating to the AGFS and LGFS are currently ongoing, delayed by the 2017 snap election. YLAL suggest the current Scheme, PPE is an “inexact method of identifying payment for a particular case,” (152) before submitting:
(153) “rather than having separate consultations for the AGFS scheme and the LGFS scheme, and the promise of a further longer term consultation on the LGFS scheme, the issue of public funding and cost drivers in the criminal justice system should be considered as a whole.”
As those questions continue to be contemplated, academics have outlined alarming thought for the future of the profession; Cape believes “it is highly likely, therefore, that the long-term contraction of the supplier base, and real-terms reduction in the legal aid budget, will continue.”(154) There is of course some hope in the sense the Criminal Charge was short lived before being scrapped in December 2015.(155) Yet the Government remain persistent that “the cost of the system [has] spiralled out of control, [becoming] one of the costliest in the world.”(156)
The extent to which the Government is accurate is certainly up for discussion. Research has shown there is an increase in higher criminal cases which is of “principal concern.”(157) Annual debates continue about the rise and (possible) decline of crime;(158) the difficulty is the changing methods of gathering statistics and the series of processes that must occur.(159) There is even the suggestion that the police bend over backwards not to record criminal activity.(160) Yet the most recent statistics by the ONS suggest a rise in crime,(161) thus a rise in cost.
Firms of solicitors with criminal contracts may well struggle soon. The current system is forcing firms to adopt business models focused on economic scales, rather than the quality of service.(162) It is now at the point where cuts may potentially force firms and lawyers to diversify, merge, relocate or close. Irrespective of size or structure, “the profession cannot absorb any more cuts.”(163)
Cost>Choice?
The Government have made their intentions very clear. The workload may well fluctuate, but the stark reality is the government is effectively forcing criminal defence firms to merge together to combat the excessive business costs of running an office. Whether it be mergers or collaborative efforts, the government is clear about “joining up services.”(164)
Reduction in cost is likely to impede suspects choice. In future, “suspects and defendants will be unlikely to have any real choice, since there may be only a small number of firms with a contract covering such locations.”(165) The choice dominated by a small number of firms. Choice will exist only in exceptional circumstances and when conflict of interest is at play.(166) Recently however, the LAA announced they were backing down in relation to the merging duty rotas in Wales, citing ‘delay’ as their reason for doing so.(167) Choice may well be dominated by the minority, but even the Government can seemingly acknowledge proposals a step too far.
Questions also remain surrounding an ageing profession:
(168) “the profile of criminal legal aid solicitors also affects sustainability, with 15% indicating their intention to retire within the next five years. This in itself will produce a net loss due to the decline in young solicitors entering criminal legal aid practice.”
This is true in the sense there are unrealistic pressures on young advocates and especially so on junior members of the Bar if the proposed AGFS is introduced. Bach believes this could lead to the system pushing the younger members of the profession in another direction and a rise of unrepresented defendants in court.(169)
At the other end, questions persist about young legal aid lawyers(170) as there is “…little incentive for debt-saddled graduates to opt for a career in legal aid work…,”(171) particularly in criminal law. We now have a generation of aspiring commercial lawyers because they cannot work in crime – the poorest people will suffer as a result.(172)
Succession is non-existent in criminal practice with mergers likely to impede suspect choice and possibly conflicts in more rural areas. It is hoped the Government will fully engage with the profession to ensure the terms of AGFS/LGFS are agreed across the board. Only if cost – that which underpins the entire criminal sector – is improved, will suspects and firms survive a model that continues to restrict.
Moorhead and Cape’s analysis of cost drivers provides worrying commentary. It is thought that the system itself creates “significant demand”(173) – perhaps through a rise in criminal legislation or rise in crime, but more so because of the relentless changes over the decades.(174) The CJS struggles to adapt to new initiatives before new ones are introduced to the statute book. The endless changes are a major cost driver.
But even more agonising is that if criminal legal aid rises, civil legal aid declines. The reductions in profit and ability to operate as businesses is one reason to campaign, but a reduction in the quality of service being provided to suspects,(175) is the most disturbing thought of all. The demise of historic firms could be on the horizon, but so is a suspects right to access justice. The Government must, when it locks the cell doors, be confident it has provided justice to both suspect, victim and society. If they do not, the hostility from convicted criminals is no greater than the hostility the Government shows to its own citizens.
Concluding Remarks
Criminal legal aid is likely to continue facing incomprehensible cuts, despite a rise in crime and an intake of more complex work. Business models will need to adapt to the new profit margins or face an incredibly difficult future. It is a future that is already bleak for those in the profession, with future question marks surrounding the succession for the medium to long-term future. Both arms of the profession need to agree to any model that is proposed following the upcoming response to the AGFS/LGFS. The Government have put a price on justice. Only time will tell if providers can manage and sustain it.
Chapter 6: The Future, Recommendations and Conclusions
Impact on Advocates and Business
The current system may prove to be more difficult than it is worth, for both advocates and firms. Firms are an essential hub for lawyers to advocate on behalf of suspects. Our adversarial system means the presentation of oral evidence is important, given judges have no investigative powers and must rely on advocates to present the case properly.(176) Unfortunately, for a magnitude of reasons discussed throughout this paper, the ability of advocates to abide by the SRA Code of Conduct and Bar Standards is heading towards further chaos. The extent to which a lawyer can act in the client’s best interests, alongside court obligations and conduct that is part of the administration of justice is questionable, in a system that curtails one, the other, or both. In any event, together, case law (Gleeson) and the CrPR guidelines, namely case management, are clear when it comes to advocating on behalf suspects. Any deviance from the rules are indeed a real gamble in a CJS of reduced tolerance.(177) This author hopes it will not continue to be one rule for one, and one rule for the other.
From a business perspective, the supply base is extremely fragile.(178) The government may not be focussing on creating a one-size-fits-all model, but they are pushing forward the idea of ABS and “new ways of working.”(179) Grayling may well lose all credibility if the true extent of the changes forces the market to operate with “legal giants” – something he previously described as a myth.
It is hopeful that the defence arm of the profession continues to produce detailed proposals(180) that can be used for parliamentary debate. Accepting new budget limitations will be difficult and will not necessarily mean that there is an overall acceptance of the budgets – it is more likely to be the case that more funding will always be proposed. But if the defence community wish to have a positive impact on negotiations, accepting new parameters may give it the best chance of long-term sustainability.
It is difficult for criminal defence lawyers to separate money and decision making.(181) Nevertheless, doing so will be crucial if they wish to influence the suspects course of proceedings, rather than a focus which prioritises business.(182)
Impact on Suspects
If the CJS can be undermined without protection, new and experienced suspects alike may find themselves entering a ‘new look’ justice system. If the Government’s position is that there is no common law right to legal aid,(183) we face an upward battle to ensure the negative impact on suspects is reduced and if possible, avoided altogether. Suspects should be able to raise a defence with a parallel strength to the prosecutions,(184) and do so with the added benefit of defence advocates. Without the benefit of representation, suspects will be shooting in the dark and walking blindfolded into court proceeding(185) and face a minefield of complexities and a wide range of legislation and judicial decisions which can be difficult for lawyers to understand, let alone a lay person.(186)
The biggest suspect-detrimental dilemma is likely to go unnoticed unless the Government advise of statistics relating to those unrepresented in the CJS. If solicitors are restricted generally, this is likely to hinder their ability to advocate in an adversarial, client centred way, thus unfortunately, resulting in the possibility that some suspects will be wrongfully convicted.(187) Delay and cost matters today place suspect equality of arms in the limelight.
Recommendations
Recommendation 1: Declining Flexible Operating Hours (FOH) Pilot Scheme
New justice plans are currently underway. HMCTS have conjured up the FOH Pilot Scheme remarkably based on188 the 2015 Review of Efficiency in Criminal Proceedings by Sir Brian Leveson:
(189)“It is notable that the operational hours of our court buildings have remained the same for decades. This must be one of the few public services which have failed to acknowledge the different ways that members of the public now live their lives and, in consequence, adapt to the different working environment.”
Of course, HMCTS fail to draw the reader’s attention to Sir Brian’s recommendations found on the same page. Leveson goes on to say: “I therefore recommend changes are considered to the traditional opening and closing hours of the Magistrates’ Courts as a means of tackling some of the inefficiencies identified in this Review. However, the views of the public and all court users should be [considered] when deciding on a new model.”(190) Importantly, Leveson acknowledges the limitations of his recommendation: “I acknowledge that this may impact on current terms and conditions, and I don’t underestimate the challenge posed in terms of reallocating costs and resources.”(191)
Later, the Judge in charge of the reform attempted to readdress misnomers. Lord Justice Fulford wrote publically that “we must use our assets to the greatest possible (but always sensible) extent, without asking anyone to work longer hours than at present.”(192) Yet what the FOH Pilot fails to recognise is the contractual obligations those in the profession have with their firms or chambers The optional participation is all good and well to prevent breach of contract, yet it leads down the path of work becoming available for a certain pool of the profession – it ignores parents with child care responsibilities, despite a FOH equality statement.(193)
Lord Justice Fulford conceded that “if it works, it works; if it doesn’t, it doesn’t”(194) – But what sort of message is this sending out to the public? There is no strong or reliable evidence to suggest FOH will mitigate the problems in the court system. It is a Pilot that is set up to fail before it has even begun.
It is not because the profession is unwilling to try something new, it is because the current system should work, but for the basics not being addressed; it has worked for hundreds of years. It is therefore recommended that the Government refocuses its finances and resources on getting the basics right, before tampering with a complex system. Access to justice cannot be achieved by simply extending court operating hours, it is achieved by so much more.
Recommendation 2: Getting the Basics Right – A Review of the Criminal Procedure Rules
Instead of financing a research project that has had limited interaction with a profession that understand the courts better than most. Perhaps such money could be spent on ‘getting the basics right’. Court estate is closing or it is time wasted(195) – it is conceivable to suggest the knock-on effect of late disclosure and prisoners arriving late at court is having an incredible domino effect. To remedy this, a review of the CrPR is needed to combat those that are not compliant.
Recommendation 3: Considering Solicitors’ and Barristers’ Fees Together.
Firms of Solicitors and members of the Bar are an “endangered species.”(196) The Government, particularly the Justice Department must review the Rushcliffe Committee Report. Adequate remuneration is fundamental to ensuring access to justice. Legal aid lawyers can no longer afford to defend gratuitously and need to be able to earn enough to survive; the alternative is untenable businesses and suspects going unrepresented.(197)
Recommendation 4: Public Interest Information
The Government is yet to announce the number of unrepresented suspects in custody and/or at court.(198) It is in the public interest that such information is made readily available. It is particularly difficult to address future recourse without validate information for context and narrative.
Recommendation 5: Royal Commission on Criminal Justice System
The last Royal Commission came 24 years ago. A thorough review of the CJS is needed across the board, rather the specific focus on areas such as legal aid. The CJS is made up of many interconnected parts; all are required to make it function. It is hopeful that a Royal Commission, albeit an expensive project, will pick up the inefficiencies mentioned in this thesis, together with any others that may exist.
Recommendation 6: Unity: An Independent Representative Body for Crime Contract
A naturally adversarial system, amplified by Government cuts, creates temptation for businesses to ignore the party-line; firms simply cannot afford to turn down work. Unity is essential if the defence community wishes to repair the damage and survive the next waves. It may take years to repair, yet judicial review remains an important avenue of redress.
Unity may come by way of nationwide striking, hitting the CJS where it hurts the most – at the Police Station and Crown Courts; a staggering 96% are in favour of just that.(199) At the very least, firms need a seat at the negotiating table. Without a contract, many businesses would be unsustainable. Yet it seems unjust that firms are without a strong negotiating team, representing similar and unique terms for the good of the defence profession, up and down the country.
Conclusion
The CJS is now in a state of flux thanks to the relentless attacks on criminal legal aid. That said, criminal legal aid is not the only reason the system is being undermined. Instead, it is an array of restrictions that are limiting access to justice. The cuts particularly, are a false economy. We now have an institutionalised CJS.
Suspect rights, rules and procedure has already been recognised by the UN, domestic courts and European courts. However, such rights are now being eroded through pressure and cost restriction. The scales of justice are balanced favourably towards the State.
Free legal advice may exist as a fundamental, enshrined right when it comes to access to justice. But for how long the cost drivers will allow this, remains to be seen. Criminal legal aid costs have been cut again and again and again. Suspects and legal businesses now need to accept new parameters to have the most influence in adversarial proceedings, despite being fought with such vigour by the majority.(200) Checks and balances will be crucial to ensure the rights of suspects are not left in the hands of tactical bargaining.(201)
To create a system of adequate redress,(202) we must have a system of effective participation.(203) This means ensuring access to justice continues to be a necessity, rather than a luxury.(204)
The profession can achieve this by having a voice, ensuring influence on important decisions.(205) This is particularly crucial given the UK is on the verge of a divorce from the EU. It is hopeful the Government will not withdraw from the ECHR,(206) thus ensuring continued protection for in the CJS following Brexit.
The future prospect of criminal legal aid in E&W is bleak,(207)“static, rigid and ossified.”(208) It is not too strong to conclude that criminal legal aid and the criminal defence profession are in crisis.(209) Smith theorises that:
(210) “the collective collapse in self-esteem, demoralisation, under-appreciation has projected on to suspects, hindering trust and confidence in defence advocates” – Dr Thomas Smith, Lecturer In Law, University of the West of England
The projection is now so great, some suspects think the defence work for the police.(211)
Those facing criminal allegations today need to be of paramount importance.(212) As a society, we must be confident in a system that protects suspects and victims alike. But often, because a person’s liberty hangs in the balance, the CJS needs to be honest with itself, let alone its citizens.
Criminal defence needs to be possible, practicable and profitable, otherwise it will be rendered a symbolic gesture,(213) unworthy of credit in our democratic society.
References
(1) ECHR, Article 6(2)
(2) Magna Carta 1297
(3) CrPR 1.1 (2) (a)
(4) Michael Cross, ‘Legal Aid’s Founding Text Turns 70’ LSG (28 May 2015)
(5) The Lord Rushcliffe, Report of the Committee on Legal Aid and Legal Advice in England and Wales (Cm 6641, HMSO, May 1945) Hereafter “Rushcliffe Committee” 1,6
(6) ibid 6, 34
(7) ibid
(8) ibid 17, 97
(9) ibid, 23, 4
(10) ibid, 23, 6
(11) ibid, 26, 26
(12) Tom Smith and Ed Cape, ‘The Rise and Decline of Criminal Legal Aid in England and Wales’ in Asher Flynn and Jacqueline Hodgson, Access to Justice & Legal Aid (Hart Publishing, 2017) Hereafter “Smith and Cape 2017” 64
(13) Lord Viscount Runciman, The Royal Commission on Criminal Justice (Cm 2263, London: HMSO, July 1993) Hereafter “Royal Commission 1993” 202, Recommendation 153
(14) ibid at 204, Recommendation 174
(15) Desmond Hudson, ‘Price-Competitive Tendering Risks Demolishing the Supplier Base’ LSG (20 May 2013)
(16) [2014] EWCA Crim 1028
(17) Grania Langdon-Down, ‘Criminal Defence: The Defiant Ones’ LSG (26 January 2015)
(18) BBC News, ‘Legal Aid: Government to Implement Solicitor Fee Cuts’ BBC News (10 June 2015)
(19) Monidipa Fouzder, ‘Junior Advocates Lose Out to QCs in New Fees Regime – Society’ LSG (05 January 2017)
(20) Smith and Cape 2017 80
(21) YLAL, ‘Statement on Criminal Legal Aid’ (June 2015)
(22) [2014] EWCA Crim 1028 at 18
(23) ibid at 18
(24) [1985] ECHR 8 at 57
(25) [1985] ECHR 8 at 57
(26) (1999) 27 EHRR 249 at 72
(27) Ellie Palmer, Tom Cornford, Audrey Guinchard and Yseult Marique, Access to Justice: Beyond the Policies and Politics of Austerity (Hart Publishing, 2016) 24
(28) Access Denied? LASPO Four Years On: A Law Society Review’ (The Law Society, June 2017) 2
(29) [2001] 2 AC 532 at 537-538
(30) [1983] 1 AC 1 at 7
(31) [1998] Q.B. 575 at 585
(32) (1975) 1 EHRR 524 at 36
(33) (1979) 2 EHRR 305 at 26
(34) [2003] 1 AC 247 at 285
(35) [1998] ECHR 52 at 36
(36) (2001) 33 EHRR 24 at 53
(37) See February 2017 Standard Crime Contract – Standard Terms between LAA and Legal Aid Providers – The Criminal Legal Aid (Remuneration) (Amendment) Regulations 2016
(38) See SRA Code of Conduct 2011, Principle 4
(39) MoJ, Transforming Legal Aid: Delivering a More Credible and Efficient System (Consultation Paper CP14/2013) 3
(40) Home Office, Rebalancing the Criminal Justice System in Favour of the Law-Abiding Majority, Consultation (2006) 12, 1.20
(41) Smith and Cape 2017, 68
(42) David Wooding, ‘Price of Justice’ The Sun (01 January 2016)
(43) HC Justice Committee, Transforming Legal Aid: Evidence Taken by the Committee (HC 91, July 2013) Ev 7, Q29
(44) See Anthony Lester, ‘Five Ideas to Fight For’ (2016) EHRLR 231
(45) Ellie Palmer, Tom Cornford, Audrey Guinchard and Yseult Marique, Access to Justice: Beyond the Policies and Politics of Austerity (Hart Publishing, 2016) 19
(46) UN General Assembly Resolution 67/187, 20 December 2012 at 2
(47) Frank Belloni and Jacqueline Hodgson, Criminal Injustice: An Evaluation of the Criminal Justice Process in Britain (Basingstoke:Macmillan, 2000) 63
(48) Andrew Ashworth and Mike Redmayne, The Criminal Process (Oxford: OUP, 2010) Hereafter “The Criminal Process” 20
(49) Jonathan Herring, Criminal law (8th Edn, Basingstoke: Palgrave Macmillan, 2013) 13
(50) The Criminal Process, 23
(51) ECHR, Article 6(2)
(52) Andy Slaughter MP, HC 08 September 2011, col 431
(53) Alan Reed, Criminal law (4th Edn, Sweet & Maxwell, 2009) 7, 1-010
(54) [1935] A.C. 462 at 481 – 482
(55) (1989) 11 EHRR 360 at 77
(56) [1947] 2 All E.R. 372 at 373
(57) Andy Slaughter MP, HC 06 September 2011, col 265
(58) Referring to avenues of appeal and the Royal Commission 1993 at 187, 32
(59) s. 58, PACE 1984
(60) [2000] EWCA Civ 104 at 22
(61) (2008) 49 EHRR 421 at 22
(62) (2008) 49 EHRR, at Annex, 6
(63) Peter Hungerford-Welch, ‘Abuse of Process: Does it Really Protect the Suspect’s Rights?’ (2017) Crim. L.R. 3 at 16
(64) (1984) 6 EHRR 1 at 38
(65) (1993) 16 EHRR 135 at 154
(66) Frank Belloni and Jacqueline Hodgson, Criminal Injustice: An Evaluation of the Criminal Justice Process in Britain (Basingstoke:Macmillan, 2000) 64
(67) Peter Hungerford-Welch, ‘Abuse of Process: Does it Really Protect the Suspect’s Rights?’ (2017) Crim. L.R. 3 at 17
(68) The Criminal Process, 21
(69) [1997] 2 Cr. App. R. 27 at 32 – 33
(70) [1988] 1 W.L.R. 139 at 144
(71) [2005] 1 Cr. App. R. 1 at 18
(72) [2005] 1 Cr. App. R. 1 at 26
(73) [2000] ECHR 191 at 64
(74) [2016] EWCA Crim 1869
(75) ibid
(76) The Criminal Process, 174
(77) Ed Cape, The Rise (and Fall?) of a Criminal Defence Profession (2004) Crim. L.R. 72 at 76
(78) The Right Honourable Lord Justice Auld, A Review of the Criminal Courts of England and Wales (London: TSO, September 2001) 439-440
(79) (1972) 40 CD 64 at 67
(80) [2012] EWCA Crim 2821 at 24
(81) The Criminal Process, 303
(82) Home Office, Justice for All (CM 5563, July 2002) 77, 4.43
(83) HC Justice Committee, Reduction in sentence for a Guilty Plea Guideline (HC 168, June 2016) 6, 18
(84) ibid at 12
(85) Ellie Palmer, Tom Cornford, Audrey Guinchard and Yseult Marique, Access to Justice: Beyond the Policies and Politics of Austerity (Hart Publishing, 2016) 14
(86) Home Office: Delivering Speedy Justice (2006) 11
(87) (1670) 84 ER 1123
(88) (1978) 2 EHRR 170 at 105
(89) (1979) 1 EHRR 155 at 5
(90) (1990) 12 EHRR 74 at 58
(91) [1991] 2 Q.B. 78 at 91
(92) [2004] 2 Cr. App. R. 36 at 17
(93) [1996] 1 Cr. App. R. 81 at 86
(94) Owen Bowcott, ‘Rise in Sex Crimes Not Due to Historical Cases, says Lord Chief Justice’ The Guardian (17 November 2015)
(95) Richard Hartley-Parkinson, ‘Woman Jailed for False Rape Claims Against Nine Men in Four Separate Encounters’ Metro (24 August 2017)
(96) The Criminal Process, 24
(97) Ed Cape and Jacqueline Hodgson, ‘The Right to Access to a Lawyer at Police Stations: Making the European Union Directive Work in Practice’ (2014) N.J.E.C.L 5 (4) at 479
(98) [2006] UKHL 42 at 57
(99) CrPR 1.1 (2) (e)
(100) [2007] EWHC 2490 (admin) at 30
(101) The Criminal Process, 266
(102) CrPR 1.2 (1) (a)(b)(c)
(103) PACE, Codes of Practice, Code C
(104) [2004] EWCA Crim 599 at 14
(105) Department for Constitutional Affairs, A Fairer Deal for Legal Aid (Cm 6591, July 2005) 26, 5.16
(106) Monidipa Fouzder, ‘Police Tighten Procedures After Sending Woman’s Phone Data to Alleged Abuser’s Solicitor’ LSG (18 August 2017)
(107) Divya Sukumar, Jacqueline S. Hodgson and Kimberley A. Wade, ‘How the Timing of Police Evidence Disclosure Impacts Custodial Legal Advice’ (2016) E. & P. 200 at 214
(108) Colin Wells, Abuse of Process (3rd Edn, OUP, 2017) 43, 2.29
109 Divya Sukumar, Jacqueline S. Hodgson Kimberley A. Wade, ‘Behind Closed Doors: Live Observations of Current Police Station Disclosure Practices and Lawyer-Client Consultations’ (2016) Crim. L.R. 900 at 913
(110) [2006] EWHC 2873 (Admin) at 3
(111) [2015] EWCA Crim 175 at 39
(112) ibid at 35
(113) ibid at 36
(114) [2015] EWCA Crim 662 at 43
(115) ibid at 44
(116) CLSA, ‘Disclosure Survey’ (August 2017)
(117) CLSA ‘Interim Disclosure Comments’ (August 2017)
(118) [1964] A.C. 1254 at 1296
(119) [1964] A.C. 1254 at 1354
(120) ibid
(121) [1996] 1 Cr. App. R. 94 at 100
(122) [2013] EWHC 562 (Admin) at 15
(123) [1992] Q.B. 630 at 643
(124) ibid at 644
(125) [2001] UKHL 67 at 87
(126) [2003] UKHL 68 at 24
(127) [2003] EWCA Crim 3357 at 35
(128) [2001] EWHC Admin 130 at 27
(129 [2007] EWCA Crim 691 at 29
(130) ibid at 30
(131) (2003) App No 57836/00 at 28
(132) [2003] ECHR 94 at 29
(133) [2006] EWCA Crim 756 at 21
(134) [2016] 1 Cr. App. R. 20 at 70
(135) Nicola Padfield, A Guide to the Crime and Disorder Act 1998 (Butterworths, 1998) 1
(136) Sir Brian Leveson, Review of Efficiency in Criminal Proceedings (2015) 318
(137) The Criminal Process, 273
(138) [2015] EWCA Crim 1941
(139) MoJ, ‘Transforming Legal Aid: Delivering a More Credible and Efficient System’ (Consultation Paper CP14/2013) 1, 1.3
(140) HM Chief Inspector of the CPS, ‘Annual Report 2015-2016’ (OGL, 2016) 14
(141) John Hyde, ‘Court Closures Set for Completion by September 2017’ LSG (19 October 2016)
(142) Christopher M. V. Clarkson, Understanding Criminal Law (4th Edn, Sweet & Maxwell, 2005) 282
(143) HC Justice Committee, Transforming Legal Aid: Evidence Taken by the Committee (HC 91, July 2013) 11
(144) Smith and Cape 2017, 72
(145) MoJ, ‘Transforming Legal Aid: Delivering a More Credible and Efficient System’ (Consultation Paper CP14/2013) 3
146 HC Justice Committee, Transforming Legal Aid: Evidence Taken by the Committee (HC 91, July 2013) Ev 28/29, Q157
(147) HC Committee of Public Account, The Procurement of Legal Aid in England and Wales by the Legal Services Commission (HC 322, February 2010) Ev 18
(148) Smith and Cape 2017, 71
(149) HC Justice Committee, Government’s Proposed Reform of Legal Aid (Volume I, HC 681-I, March 2011) 12, 17
(150) The Full Code Test Two Stages: (1) The Evidential Stage (2) The Public Interest Stage
(151) The Criminal Process, 68
(152) YLAL, ‘Response to the MoJ Consultation on the LGSF and Court Appointees’ (March 2017) 2, 11
(153) ibid at 4, 24
(154) Smith and Cape 2017, 74
(155) Michael Gove MP, ‘Courts: Written Statement to Parliament’ (MoJ, 03 December 2015
(156) MoJ, Transforming Legal Aid: Delivering a More Credible and Efficient System (Consultation Paper CP14/2013) 3
(157) Richard Moorhead and Ed Cape, Demand Induced Supply? Identifying Cost Drivers in Criminal Defence Work (Legal Services Commission, 2005) 5
(158) Alec Samuels, ‘The Criminal Justice and Courts Act 2015’ (2015) Crim. Law. 2 at 2
(159) Catherine Elliott and Francis Quinn, Criminal law (11th Edn, Harlow: Pearson, 2016) 2 & 6
(160) Anna Soubry MP, HC 29 June 2011, vol 530, col 1043
(161) Alan Travis, ‘Crime Rise is Biggest in a Decade, ONS Figures Show’ The Guardian (20 July 2017)
(162) Smith and Cape 2017, 76
(163) The Law Society, Legal Aid Practitioners Group, Criminal Law Solicitors Association and London Criminal Courts Solicitors Association, ‘LGFS Consultation Position Statement’
(164) Home Office, Rebalancing the Criminal Justice System in Favour of the Law-Abiding Majority, Consultation (2006) 11, 1.14
(165) Smith and Cape 2017, 76
166 John Arnold Epp and Derek O’Brien, ‘Defending the Right to Choose: Legally Aided Defendants and Choice of Legal Representative’ (2001) EHRLR 409 at 412
(167) Monidipa Fouzder, ‘Government Heeds Concerns Over Duty Scheme Merger’ LSG (25 August 2017)
(168) HC Committee of Public Account, The Procurement of Legal Aid in England and Wales by the Legal Services Commission (HC 322, February 2010) Ev 18
(169) Lord Willy Bach, The Crisis in the Justice System in England & Wales: The Bach Commission on Access to Justice Interim Report (Fabian Society, November 2016) 10
(170) Lord Willy Bach, The Right to Justice: The Final Report of the Bach Commission (Fabian Society, 22 September 2017) 38
(171) HC Committee of Public Account, The Procurement of Legal Aid in England and Wales by the Legal Services Commission (HC 322, February 2010) Ev 18
(172) Jeremy Corbyn MP, HC 02 November 2011, vol 534, col 995
(173) Richard Moorhead and Ed Cape, Demand Induced Supply? Identifying Cost Drivers in Criminal Defence Work (Legal Services Commission, 2005) 70
(174) Andy Slaughter MP, HC 19 July 2011, col 172
(175) ibid
(176) Catherine Elliott and Francis Quinn, English Legal System (11th Edn, Harlow: Longman, 2010) 223
(177) Andrew Keogh, ‘Criminal Case Management: Is the Game Over? (Eldon Lecture, Northumbria University Law School, 24 November 2011)
(178) HC Committee of Public Account, The Procurement of Legal Aid in England and Wales by the Legal Services Commission (HC 322, February 2010) Ev 18
(179) HC Justice Committee, Transforming Legal Aid: Evidence Taken by the Committee (HC 91, July 2013) Ev 24, Q128
(180) ibid at 13
(181) Tom Smith, ‘Trust, Choice and Money: Why the Legal Aid Reform “U-Turn” is Essential for Effective Criminal Defence’ (2013) Crim. L.R.906 at 910
(182) Ed Cape and Jacqueline Hodgson, ‘The Right to Access to a Lawyer at Police Stations: Making the European Union Directive Work in Practice’ (2014) N.J.E.C.L 5 (4) at 474
(183) JCHR, The Implications for Access to Justice of the Government’s Proposals to Reform Legal Aid (HL 100, HC 766, December 2013) 13, 30
(184) Paul Willey, ‘Trials in Absentia and the Cuts to Criminal Legal Aid: A Deadly Combination?’ (2014) J. Crim. L. 486 at 509
(185) ibid at 495
(186) Catherine Elliott and Francis Quinn, Criminal law (11th Edn, Harlow: Pearson, 2016) 9
(187) Frank Belloni and Jacqueline Hodgson, Criminal Injustice: An Evaluation of the Criminal Justice Process in Britain (Basingstoke: Macmillan, 2000) 5
(188) Susan Acland-Hood, ‘Ensuring Our Justice System Fits the Needs of Those It Serves’ HMCTS (21 July 2017)
(189) Sir Brian Leveson, Review of Efficiency in Criminal Proceedings (2015) 42, 146
(190) ibid at 42, 150
(191) ibid see reference 76
(192) The Rt. Hon. Lord Justice Fulford, ‘FOH Pilot’ (28 July 2017)
(193) HMCTS, ‘FOH Equality Statement (11 August 2017)
(194) The Rt. Hon. Lord Justice Fulford, ‘FOH Pilot’ (28 July 2017)
(195) John Hyde, ‘FOI Reveals Flexible Pilot Courts Running at Only Half Capacity’ LSG (29 August 2017)
(196) Grania Langdon-Down, ‘Criminal Defence: Endangered Species’ LGS (17 July 2017)
(197) Paul Willey, ‘Trials in Absentia and the Cuts to Criminal Legal Aid: A Deadly Combination?’ (2014) J. Crim. L. 486 504
(198) Monidipa Fouzder, MoJ Refuses to Publish Research on Unrepresented Defendants’ LSG (31 March 2017)
(199) YLAL, ‘Statement on Criminal Legal Aid’ (19 June 2015)
(200) Lord Willy Bach, The Crisis in the Justice System in England & Wales: The Bach Commission on Access to Justice Interim Report (Fabian Society, November 2016) 16
(201) House of Commons Justice Committee, Implications of Brexit for the Justice System (HC 750, March 2017) 11, 18
(202) [2000] App No 30210/96 at 158
(203) [2004] ECHR 263 at 29
(204) See Anthony Lester, ‘Five Ideas to Fight For’ (2016) E.H.R.L.R. 231
(205) Christopher M. V. Clarkson, Understanding Criminal Law (4th Edn, Sweet & Maxwell, 2005) 255
(206) JCHR, The Human Rights Implications of Brexit (HL 88, HC 695, December 2016) 8, 2
(207) Smith and Cape 2017, 63
(208) ibid, 77
(209) ibid, 78
(210) Tom Smith, ‘Trust, Choice and Money: Why the Legal Aid Reform “U-Turn” is Essential for Effective Criminal Defence’ (2013) Crim. L.R.906 at 911
(211) The Right Honourable David Lammy MP, The Lammy Review: An Independent Review into the Treatment of, and Outcomes for, Black, Asian and Minority Ethnic individuals in the Criminal Justice System (08 September 2017) 27
(212) Ed Cape, The Rise (and Fall?) of a Criminal Defence Profession (2004) Crim. L.R. 72 at 87
(213) Tom Smith, ‘Trust, Choice and Money: Why the Legal Aid Reform “U-Turn” is Essential for Effective Criminal Defence’ (2013) Crim. L.R.906 at 908
List of Acronyms
ABS: Alternative Business Structure
AC: Administrative Court
AG: Attorney General
AGFS: Advocates Graduated Fee Structure
ALL ER: All England Reports
CD: Collection of Decisions of the European Commission of Human Rights
CJS: Criminal Justice System
CPS: Crown Prosecution Service
Cr. App. R.: Criminal Appeal Reports
Crim. Law: Criminal Lawyer
Crim. L.B.: Criminal Law Bulletin
Crim. L.R. Criminal Law Review
CJPOA: Criminal Justice and Public Order Act 1994
CLSA: Criminal Law Solicitors’ Association
CrPR: Criminal Procedure Rules
DPP: Director of Public Prosecutions
ECHR: European Convention on Human Rights
ECtHR: European Court of Human Rights
EHRR: European Human Rights Reports
EHRLR: European Human Rights Law Review
ER: English Reports
E&W: England and Wales
EWCA Crim: England and Wales Court of Appeal (Criminal Division)
EWCA Civ: England and Wales Court of Appeal (Civil Division)
FOH: Flexible Operating Hours
HC: House of Commons
HMCTS: Her Majesty’s Court and Tribunal Service
HM Government: Her Majesty’s Government
HRA: Human Rights Act 1998
JCHR: Joint Committee on Human Rights
J. Crim. L.: Journal of Criminal Law
LAA: Legal Aid Agency
LSG: Law Society Gazette
LGFS: Litigators Graduated Fee Structure
LASPO: Legal Aid, Sentencing and Punishment of Offenders Act 2012
LPP: Legal Professional Privilege
MoJ: Ministry of Justice
NJECL: New Journal of European Criminal Law
OUP: Oxford University Press
PACE: Police and Criminal Evidence Act 1984
PCT: Price Competitive Tendering
PPE: Pages of Prosecution Evidence
PTPH: Pre-Trial Preparation Hearing
QASA: Quality Assurance Scheme for Advocates
QB: Queens Bench
QC: Queens Counsel
R.: Regina (The Queen)
SSHD: Secretary of State for the Home Department
UK: United Kingdom
UKHL: United Kingdom House of Lords (Now The Supreme Court)
VHCC: Very High Cost Cases
WLR: Weekly Law Reports
YLAL: Young Legal Aid Lawyers
Table of Cases
England and Wales
Bushel’s Case (1670) 84 ER 1123
Woolmington v DPP [1935] A.C. 462
Miller v Minister of Pensions [1947] 2 All E.R. 372
Connelly Appellant; v Director of Public Prosecutions Respondent. [1964] A.C. 1254
Raymond v Honey [1983] 1 AC 1
R. v Mason (Carl) [1988] 1 W.L.R. 139
R. v Telford Justices, Ex parte Badhan [1991] 2 Q.B. 78
Attorney-General’s Reference (No. 1 of 1990) [1992] Q.B. 630
R. v William Wilkinson [1996] 1 Cr. App. R. 81
R. v Ian Anthony Beckford [1996] 1 Cr. App. R. 94
R. v Brian Argent [1997] 2 Cr. App. R. 27
R v Lord Chancellor, ex p. Witham [1998] Q.B. 575
Chief Constable of Kent v. Rixon and others [2000] EWCA Civ 104
Attorney General’s Reference (No. 2 of 2001) [2003] UKHL 68
Porter v Magill [2001] UKHL 67
R. (Ebrahim) v Feltham Magistrates’ Court; Mouat v Director of Public Prosecutions [2001] EWHCcAdmin 130
R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532
R. v John Vincent Gleeson [2003] EWCA Crim 3357
R v Shayler [2003] 1 AC 247
R. v E (T) [2004] 2 Cr. App. R. 36
R. v Paul James Nottle [2004] EWCA Crim 599
R. v Howell [2005] 1 Cr. App. R. 1
R. v S (SP) [2006] EWCA Crim 756
R. (on the application of O) v Harrow Crown Court [2006] UKHL 42
R. v Khalid Ali, Mohammed Altaf v The Crown Prosecution Service, West Midlands [2007] EWCA Crim 691
The Queen on the Application of Miah v Snaresbrook Crown Court [2006] EWHC 2873 (Admin)
Lawson v Stafford Magistrates’ Court [2007] EWHC 2490 (admin)
R. v Caley and others [2012] EWCA Crim 2821
DPP v Fell [2013] EWHC 562 (Admin)
R. v Crawley (Scott) and Others [2014] EWCA Crim 1028
R. v Boardman [2015] EWCA Crim 175
R. v Salt and another [2015] EWCA Crim 662
R. v R and others (Practice Note) [2015] EWCA Crim 1941
European Court of Human Rights
X v United Kingdom (1972) 40 CD 64
Golder v UK (1975) 1 EHRR 524
Konig v Federal Republic of Germany (1978) 2 EHRR 170
Airey v Ireland (1979) 2 EHRR 305
Stogmuller v Austria (1979) 1 EHRR 155
Pakelli v Germany v (1984) 6 EHRR 1
Ashingdane v United Kingdom [1985] ECHR 8
Barbera, Messegue and Jabardo v Spain (1989) 11 EHRR 360
H v France (1990) 12 EHRR 74
Croissant v Germany (1993) 16 EHRR 135
Tinnelly & Sons Ltd & Others and McElduff & Others v United Kingdom (1999) 27 EHRR 249
Condron v United Kingdom [2000] ECHR 191
Kudla v Poland [2000] App No 30210/96
Twalib v Greece (2001) 33 EHRR 24
Mellors v UK (2003) App No 57836/00
Hutchison Reid v. The United Kingdom [2003] ECHR 94
SC v United Kingdom [2004] ECHR 263
Salduz v Turkey (2008) 49 EHRR 421
Bibliography
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John Arnold Epp and Derek O’Brien, ‘Defending the Right to Choose: Legally Aided Defendants and Choice of Legal Representative’ (2001) EHRLR 409
Ed Cape, Incompetent Police Station Advice and the Exclusion of Evidence (2002) Crim. L.R. 471
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Ed Cape, ‘Modernising Police Powers – Again?’ (2007) Crim. L.R. 934
Tom Smith, ‘Trust, Choice and Money: Why the Legal Aid Reform “U-Turn” is Essential for Effective Criminal Defence’ (2013) Crim. L.R. 906
Ed Cape and Jacqueline Hodgson, ‘The Right to Access to a Lawyer at Police Stations: Making the European Union Directive Work in Practice’ (2014) NJECL 5(4)
Paul Willey, ‘Trials in Absentia and the Cuts to Criminal Legal Aid: A Deadly Combination?’ (2014) J.Crim. L. 486
Alec Samuels, ‘The Criminal Justice and Courts Act 2015’ (2015) Crim. Law. 2
Anthony Edwards, ‘The Other Leveson Report – The Review of Efficiency in Criminal Proceedings’ (2015) Crim. L.R. 399
Clare Connelly, ‘Brexit and Criminal Law’ (2016) Crim. L.B. 1
Paul Bowen QC, ‘Does the Renaissance of Common Law Rights Mean that the Human Rights Act 1998 is Now Unnecessary?’ (2016) EHRLR 361
Anthony Edwards and Matthew Hardcastle, ‘The Changing Status of the Defence Solicitor’ (2016) Crim. L.R. 830
Anthony Lester, ‘Five Ideas to Fight For’ (2016) EHRLR 231
Divya Sukumar, Jacqueline S. Hodgson and Kimberley A. Wade, ‘How the Timing of Police Evidence Disclosure Impacts Custodial Legal Advice’ (2016) E. & P. 200
Divya Sukumar, Jacqueline S. Hodgson Kimberley A. Wade, ‘Behind Closed Doors: Live Observations of Current Police Station Disclosure Practices and Lawyer-Client Consultations’ (2016) Crim. L.R. 900
Peter Hungerford-Welch, ‘Abuse of Process: Does it Really Protect the Suspect’s Rights?’ (2017) Crim. L.R. 3
Damian Warburton, ‘Adverse Inferences from Silence and Negligent Legal Advice: R. v Good (Alfie)’ (2017) J. Crim. L. 13
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Lord Rushcliffe, Report of the Committee on Legal Aid and Legal Advice in England and Wales (Cm 6641, HMSO, May 1945)
Lord Justice Auld, A Review of the Criminal Courts of England and Wales (London: TSO, September 2001)
Home Office, Justice for All (CM 5563, July 2002)
Home Office, Delivering Speedy Justice (2006)
Lord Viscount Runciman, The Royal Commission on Criminal Justice (Cm 2263, London: HMSO, July 1993)
Richard Moorhead and Ed Cape, Demand Induced Supply? Identifying Cost Drivers in Criminal Defence Work (Legal Services Commission, 2005)
Department for Constitutional Affairs, A Fairer Deal for Legal Aid (Cm 6591, July 2005)
Home Office, Rebalancing the Criminal Justice System in Favour of the Law-Abiding Majority, Consultation (2006)
Ministry of Justice, Transforming Legal Aid: Delivering a More Credible and Efficient System (Consultation Paper CP14/2013)
House of Commons Justice Committee, Transforming Legal Aid: Evidence Taken by the Committee (HC 91, July 2013)
House of Commons Justice Committee, Reduction in sentence for a Guilty Plea Guideline (HC 168, June 2016)
House of Commons of Public Account, The Procurement of Legal Aid in England and Wales by the Legal Services Commission (HC 322, February 2010)
House of Commons Justice Committee, Government’s Proposed Reform of Legal Aid (Volume I, HC 681-I, March 2011)
Ministry of Justice, Transforming Legal Aid: Delivering a More Credible and Efficient System (Consultation Paper CP14/2013)
Joint Committee on Human Rights, The Implications for Access to Justice of the Government’s Proposals to Reform Legal Aid (HL 100, HC 766, December 2013)
Sir Brian Leveson, Review of Efficiency in Criminal Proceedings (2015)
HM Chief Inspector of the CPS, Annual Report 2015-2016 (OGL, 2016)
Lord Willy Bach, The Crisis in the Justice System in England & Wales: The Bach Commission on Access to Justice Interim Report (Fabian Society, November 2016)
Joint Committee on Human Rights, The Human Rights Implications of Brexit (HL 88, HC 695, December 2016)
House of Commons Justice Committee, Implications of Brexit for the Justice System (HC 750, March 2017)
The Right Honourable David Lammy MP, The Lammy Review: An Independent Review into the Treatment of, and Outcomes for, Black, Asian and Minority Ethnic individuals in the Criminal Justice System (08 September 2017)
Lord Willy Bach, The Right to Justice: The Final Report of the Bach Commission (Fabian Society, 22 September 2017)
HANSARD
HC 06 September 2011, col 265
HC 08 September 2011, col 431
HC 29 June 2011, vol 530, col 1043
HC 02 November 2011, vol 534, col 995
HC 19 July 2011, col 172
Websites and Blogs
Andrew Keogh (CrimeLine), ‘Criminal Case Management: Is the Game Over? (Eldon Lecture, Northumbria University Law School, 24 November 2011)
UN General Assembly Resolution 67/187, 20 December 2012
Paul Bowen QC, ‘Access to Justice: The Right to Free Legal Representation at Common Law and Under the Convention and Exceptional Funding Determinations Under LASPO’ (Young Legal Aid Lawyers’, October 2012)
BBC News, ‘Legal Aid: Government to Implement Solicitor Fee Cuts’ BBC News (10 June 2015)
Owen Bowcott, ‘Legal Aid Cuts Creating Two-Tier Justice System, Says Amnesty’ The Guardian (11 October 2016)
Young Legal Aid Lawyers, ‘Statement on Criminal Legal Aid’ (19 June 2015)
Michael Gove MP, ‘Courts: Written Statement to Parliament’ (Ministry of Justice, 03 December 2015)
Michael Gove MP, ‘Changes to Criminal Legal Aid Contracting: Written Statement to Parliament’ (Ministry of Justice, 28 January 2016)
Legal Aid Agency, ‘Crime news: LGFS consultation and Fee Cut Update’ (22 February 2017)
Access Denied? LASPO Four Years On: A Law Society Review’ (The Law Society, 29 June 2017)
Criminal Law Solicitors’ Association, ‘Disclosure Survey’ (August 2017) available at
Criminal Law Solicitors’ Association ‘Interim Disclosure Comments’ (August 2017)
Young Legal Aid Lawyers, ‘Response to the MoJ Consultation on the LGSF and Court Appointees’ (March 2017)
Susan Acland-Hood, ‘Ensuring Our Justice System Fits the Needs of Those It Serves’ HMCTS (21 July 2017)
Lord Justice Fulford, ‘Flexible Operating Hours Pilot’ (28 July 2017)
HMCTS, ‘Flexible Operating Hours Equality Statement’ (11 August 2017) available at
Standard Crime Contract (February 2017)
The Law Society, Legal Aid Practitioners Group, Criminal Law Solicitors Association and London Criminal Courts Solicitors Association, ‘LGFS Consultation Position Statement’
Newspaper Articles
Desmond Hudson, ‘Price-Competitive Tendering Risks Demolishing the Supplier Base’ Law Society Gazette (20 May 2013)
Grania Langdon-Down, ‘Criminal Defence: The Defiant Ones’ Law Society Gazette (26 January 2015)
Michael Cross, ‘Legal Aid’s Founding Text Turns 70’ Law Society Gazette (28 May 2015) Owen Bowcott, ‘Rise in Sex Crimes Not Due to Historical Cases, says Lord Chief Justice’ The Guardian (17 November 2015)
David Wooding, ‘Price of Justice’ The Sun (01 January 2016)
Monidipa Fouzder, ‘Junior Advocates Lose Out to QCs in New Fees Regime – Society’ Law Society Gazette (05 January 2017)
Monidipa Fouzder, ‘MoJ Refuses to Publish Research on Unrepresented Defendants’ Law Society Gazette (31 March 2017)
Grania Langdon-Down, ‘Criminal Defence: Endangered Species’ Law Society Gazette (17 July 2017)
Alan Travis, ‘Crime Rise is Biggest in a Decade, ONS Figures Show’ The Guardian (20 July 2017)
Monidipa Fouzder, ‘Police Tighten Procedures After Sending Woman’s Phone Data to Alleged Abuser’s Solicitor’ Law Society Gazette (18 August 2017)
Richard Hartley-Parkinson, ‘Woman Jailed for False Rape Claims Against Nine Men in Four Separate Encounters’ Metro (24 August 2017)
Monidipa Fouzder, ‘Government Heeds Concerns Over Duty Scheme Merger’ Law Society Gazette (25 August 2017)
John Hyde, ‘FOI Reveals Flexible Pilot Courts Running at Only Half Capacity’ Law Society Gazette (29 August 2017)
Stephen Davies 