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These blogs are written by our legal team and it is hoped you will find them informative. If you wish to discuss any of the issues raised within please do not hesitate to drop the author an email.

Crown Court Legal Aid

26/1/20150 CommentsBy Adam Foster

In 2008 the Legal Aid Agency (formerly the Legal Services Commission or LSC) introduced a new payment scheme for Solicitors representing Legal Aid Clients appearing in the Crown Court. Previously solicitors were paid for the hours of work undertaken. Bills were assessed by the National Taxing Team, and if they considered too much time had been spent on a specific task, or the task itself was not justified, then the claim was reduced accordingly. However, under the Litigators Graduated Fee Scheme bills were no longer paid based on the work undertaken, but instead on a number of rigid factors including a) the number of 'pages of evidence' served by the Prosecution; b) the 'case type' e.g. guilty plea, trial etc.. and; c) 'classification of offence' depending on seriousness. A similar scheme, the Advocates Graduated Fee Scheme (AGFS) was introduced for Barristers. 

It was accepted at the time that these factors would result in Solicitors being underpaid on some cases, and overpaid on others. 'This will be a swings and roundabouts system' announced the LSC, where Practitioners will 'win on some and lose on others'. The LGFS scheme does allow some certainty in financial planning, as the value of a case is easily established, but the reality is all the necessary work must be done on behalf of any Client regardless of the final bill. Professional duties require that. The question is whether running a business on a commitment to those duties is sustainable, with many firms having either gone out of business or feeling compelled to turn their back on Legal Aid.

The concern of many practitioners when the LGFS Scheme was introduced was that the LSC may seek to 'move the goalposts' and vary the scheme to reduce the higher claims which balanced out the numerous lower claims. Indeed in 2009 the LGFS Scheme was so revised in that the limit of 100,000 pages of evidence (on the most serious and complex cases) was reduced to a maximum of 10,000 pages. Anything above that was to be subject to a seperate and far less rewarding 'special preparation' claim. This approach, that Practitioners have endured for the last 6 years has been severly criticised recently by the High Court Judge in R -V- Furniss, Hall & Stacey  Mr Justice Haddon-Cave stated "The rationale for this apparently arbitrary ceiling is unclear.  Its effect is to impose an artificial cap on advocates’ remuneration irrespective of the work actually done. In my judgment, where the actual page count is not significantly above the maximum (say 20-30% more), one can divine a pragmatic reason for a rough-and-ready cap on remuneration of this sort of order.  Where, however, the actual page count vastly exceeds the 10,000 pages, such a restriction is manifestly disproportionate and cannot rationally have been intended to apply.  The present case is just such a case: the actual page count is 24,407 pages, i.e. more than double the ‘maximum’.  Accordingly, the ‘maximum’ must yield and remuneration should be made on the actual PPE, namely 24,407 pages."

Whereas Solicitors have often had to contest claims with the LAA, often before a formal costs tribunal (The Taxing Masters based at the Royal Courts of Justice), in recent years many Solicitors have complained that it has become the Crown Prosecution Service who create the biggest challenge when it comes to this type of claim. In many cases CPS Lawyers are said to have served only those limited parts of evidence (upon which they seek to rely) or Sequence of Events documents created by the Police to summarise the actual evidence. The source material, whether it be phone records, observation logs, computer downloads, etc... must be considered in it's entirety in order to ensure the evidence is presented in Court accurately, fairly and in the correct context. Some Defence Practioners complain that such source material is often served by the CPS in it's entirety but often with a disingenuous approach - here is a disc of phone evidence for you to consider, but it is not formally 'served', we simply wish to rely on small parts of it that material which we will identify in due course....

Even though the entire material needs to be considered by the Defence, the effect of this approach is the 'page count' for the purpose of the final claim to the LAA will remain low, and the lower the page count, the lower the Defence Solicitors bill. 

As an example, a Defence Solicitors firm (not the individual solicitor) will be paid little over £2700 for representing a Defendant who pleads guilty to murder in a case with approximately 500 pages of evidence. That fee covers all Court Hearings, visits to the Client in Custody providing advice and taking instructions, time spent considering the case papers and preparing any response, attendances on defence witnesses, instructing experts, advising on appeal, all letters and phones calls, in short E-V-E-R-Y-T-H-I-N-G.

Some say that the reality of deliberately reducing page counts is that the CPS can indirectly control the resources a Defence Solicitor can allocate to defending a case which they (the CPS) are prosecuting - and on any view of fairness and justice, that has to be a very real concern.

Further Cuts to Criminal legal Aid have been brought in at many different levels and many more are due to be introduced in 2015. There may be people reading this blog who feel little sympathy for Defence Solicitors & Barristers. That view would inevitably change if such persons found themselves (or loved ones) in trouble with the Police and they had insufficient savings to fund a private defence. Many think if Legal Aid lawyers go, they'll be gone forever. The NHS look after your health but who will protect your liberty?

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