Following the opening of the crime duty tender this week, the SRA has urged potential new entities (whether new firms or joint ventures) to contact it as soon as possible. They will need to be authorised by the SRA before the contract begins, and as the SRA points out the process can be complex and time is short. The ITT says that preference will be given to entities that are recognised, or have applied to be by the time of bid submission, and that successful bidders will need to be authorised by the contract start date. The alternative to SRA authorisation is authorisation by the BSB, which will take applications from 5 January 2015 but will only be open to entities owned by lawyers (unlike the SRA, which also authorises alternative business structures – that is, entities not wholly owned by lawyers).
The LAA have now posted the following documents on their crime tenders page:
- Information for applicants
- Guidance on using the e-tendering portal
- Various “indicative” duty rotas
The e-tendering portal is now open and any questions must be submitted by noon on 15th December. FAQs will be published on 22nd December. The tender closes on 29th January, but outcomes will not be made known until June 2015, leaving successful bidders less than three months – over the summer – to make the necessary changes to their businesses by the start date of 1st October. There must be serious doubts as to whether this is realistic.
This is the indicative timetable:
- Procurement process opens and available via the LAA’s eTendering portal 27 November 2014
- Final date to submit questions about this procurement process 12 noon on 15 December 2015
- Final ‘Frequently Asked Questions’ to be published 22 December 2015
- Deadline for submission of Tenders 12 noon on 29 January 2015
- Notification of outcome of Duty Provider Contract Tenders June 2015
- Contract execution and Contract Start Date June 2015
- Mobilisation period June to September 2015
- Service Commencement Date 1 October 2015
The Lord Chancellor has just made a written statement to Parliament on criminal legal aid, following the recent consultation.
This is what he said:
I am today publishing the Government response to the “Transforming Legal Aid: Crime Duty Contracts” consultation published on 24 September. Copies will be placed in the Libraries of both Houses.
This consultation was specifically about the reports produced by KPMG LLP and Otterburn Legal Consulting regarding the legal aid litigator market, which helped inform decisions on the number of criminal legal aid duty contracts to be offered across England and Wales in 2015. We have thoroughly reviewed all the responses received.
As a result, the Legal Aid Agency will let 527 crime duty contracts. This has been revised from 525. The LAA is also today issuing an Invitation to Tender for those organisations eligible to apply for a 2015 Duty Provider Crime Contract. Contracts have already been awarded for own client work, the other type of criminal legal aid contract we announced in February.
To provide further help to firms in rural areas, we have decided to introduce payments for travelling times in excess of 90 minutes. We will also relax the office requirements in the split procurement areas and London to give greater flexibility. This builds on the support measures introduced earlier, such as introducing interim payments for lawyers involved in lengthy Crown Court cases and establishing a business partnering network to help practitioners with organisational and financial advice, if they need it. We have also worked with the British Business Bank to develop guidance and advice specifically for the legal aid market.
I have previously informed the House that a second fee reduction for litigators is forecast for mid 2015. The Legal Aid Agency are inviting bidders to bid on the basis that the fee reduction will take place in July, subject to the further considerations we have already said we will undertake.
The government’s consultation response is here. The ITT is not yet on the LAA website but we will post it when it becomes available.
Many of our readers with an interest in housing legal aid will have seen the excellent article in this month’s Legal Action, “Sorting myths from facts over housing cases” by Sara Stephens and Jan Luba QC. Many of the citations in the article were to the legal aid reform FAQs issued when LASPO first came into force in 2013, but which are no longer available on the LAA website since it migrated to the gov.uk domain. Fortunately we saved a copy, and they are available here (final version) and on our LASPO Resources page, which also includes the two earlier versions.
A few months ago, we reported the judgment of Sir James Munby P in the cases of Q v Q, Re B and Re C. In Re C, a private law case, the father was accused of raping the mother. His representation in the private family law proceedings was not within the scope of the legal aid scheme – even though it would result in the possibility of him cross-examining the mother (the alleged victim of his rape) in person. Munby P set out his view that it may be necessary in some cases, where legal aid was not available, for other means of funding representation to be made available, even if that meant it being paid for out of the court service budget. But he didn’t make such a direction, because the father had an outstanding application for exceptional funding.
In a new judgment handed down last week, (Re C (A Child) (No 2)  EWFC 44) Munby P gave an update. Following his intervention (and despite earlier difficulties), the LAA have now granted the father exceptional funding, subject to a contribution. He therefore did not need to direct that the father’s representation be funded from another source. But he took the unusual step of appending to his judgment the written submissions of counsel for the mother, Lucy Reed, arguing that her client could not have a fair trial, and her Article 6 rights would be breached, if representation was not granted to the father. The ongoing delay, caused by delays in considering the father’s application, was also in breach of her (and the child’s) Article 8 rights. It was also said that subjecting her to cross-examination by the father would of itself be inhuman or degrading treatment in breach of Article 3. While it was now academic in this case, and so Munby P made no decision, it is useful to see the arguments that were put.
Finally, Munby P thanked the various lawyers who had appeared pro bono in the case at different times. But as he said, quoting himself in an earlier case, “It is unfair that legal representation in these vital cases is only available if the lawyers agree to work for nothing.”
In a response to a question from Karl Turner, MP for Kingston Upon Hull East, on November 11, Chris Grayling said that following the recent consultation updated proposals will be introduced ‘very shortly’.
We will post more information as soon as we can.
Our thanks to Garden Court North for drawing this case to our attention. The LAA has recently granted exceptional funding for an application to set aside an injunction banning persons unknown from begging in Leeds city centre. GCN’s website reports:
Exceptional case funding has been granted by the Legal Aid Agency to apply to set aside Leeds City Council’s injunction obtained under S222 Local Government Act 1972 against persons unknown on behalf of a man who it has been sought to commit to prison.
Leeds City Council obtained the injunction / restraining order from “begging” in Leeds City centre against “persons unknown”, even though a number of the alleged beggars, including our client, are known to Leeds City Council. Our client was then served with the injunction after it had been obtained despite being later described in Leeds City Council’s own evidence as a known and prolific beggar.
The committal has been adjourned pending this application to set aside and will be challenged on the basis that:
- The Court did not have power to make it as there are statutory remedies that should have been used.
- It was an abuse of process not to name those it knew and alleged to be begging.
- In any event the criteria for an injunction restraining a criminal offence or public nuisance are not met and the injunction fails to consider the personal circumstances of the individuals concerned and subverts the prohibition on the making of bye-laws without the permission of the Secretary of State.
After a lengthy struggle to obtain funding, exceptional funding was granted (on 5th November 2014) to challenge the injunction itself.
As always, we would be pleased to hear of other grants of exceptional funding, and to publicise them for the benefit of others making similar applications.