Legal aid bill
The Legal Aid, Sentencing and Punishment of Offenders Bill reaches committee stage on Tuesday. The Justice for All website has an excellent round-up of the briefings and submissions made by a range of organisations. It is also calling for volunteers to “pair up with a peer”, to contact and lobby a nominated member of the House of Lords.
It is absolutely crucial that any family provider who has not yet done so gets verification information requested to the LSC by noon on Tuesday. Failure to do so will result in contract offers being withdrawn. According to the Law Society, 43% of firms had not yet done so as of 12th December. Given the importance of submitting your information in time, and the IT problems in the last tender round, firms should not wait until the last minute, and should carefully check that all requested material has not only been uploaded but also received. See the Law Society’s website for a list of common problems with information already provided.
The Terrorism Prevention and Investigation Measures Act 2011 came into force last week. The Act replaces the control orders regime, and like control orders work, legal aid is available without regard to means. The Community Legal Service (Financial) (Amendment No 2) Regulations 2011 make the necessary amendments.
There has been a significant High Court case (Lord Chancellor v Ian Henery Solicitors Ltd  EWHC 3246 (QB)), which defines what is a cracked trial and what is a trial, for the purposes of the advocates and litigators graduated fee schemes.
In deciding which fee is payable, the question is whether the case proceeded to trial, a question that is more complex than it may at first appear. At para 96 of his judgement, Spencer J summarised the principles thus:
(1) Whether or not a jury has been sworn is not the conclusive factor in determining whether a trial has begun.
(2) There can be no doubt that a trial has begun if the jury has been sworn, the case opened, and evidence has been called. This is so even if the trial comes to an end very soon afterwards through a change of plea by a defendant, or a decision by the prosecution not to continue (R v Maynard, R v Karra).
(3) A trial will also have begun if the jury has been sworn and the case has been opened by the prosecution to any extent, even if only for a very few minutes (Meek and Taylor v Secretary of State for Constitutional Affairs).
(4) A trial will not have begun, even if the jury has been sworn (and whether or not the defendant has been put in the charge of the jury) if there has been no trial in a meaningful sense, for example because before the case can be opened the defendant pleads guilty (R v Brook, R v Baker and Fowler, R v Sanghera, Lord Chancellor v Ian Henery Solicitors Ltd [the present appeal]).
(5) A trial will have begun even if no jury has been sworn, if submissions have begun in a continuous process resulting in the empanelling of the jury, the opening of the case, and the leading of evidence (R v Dean Smith, R v Bullingham, R v Wembo).
(6) If, in accordance with modern practice in long cases, a jury has been selected but not sworn, then provided the court is dealing with substantial matters of case management it may well be that the trial has begun in a meaningful sense.
(7) It may not always be possible to determine, at the time, whether a trial has begun and is proceeding for the purpose of the graduated fee schemes. It will often be necessary to see how events have unfolded to determine whether there has been a trial in any meaningful sense.
(8) Where there is likely to be any difficulty in deciding whether a trial has begun, and if so when it began, the judge should be prepared, upon request, to indicate his or her view on the matter for the benefit of the parties and the determining officer, as Mitting J did in R v Dean Smith, in the light of the relevant principles explained in this judgment.
He indicated that the parts of the LSC’s guidance on the LGFS is wrong and will need to be re-drafted.
Solicitors and counsel should consider the judgement, rather than the guidance, in deciding whether to claim for a trial or cracked trial.
The LSC has drawn providers’ attention to problems with online financial statements. It believes payments are correct, but there may be errors in the information shown in the system. As ever, firms are best advised to keep their own records and regularly check them against those of the LSC.
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