Category Archives: Legal aid bill

The cost of cutting legal aid

Ahead of this afternoon’s committee stage debate on the legal aid bill in the House of Lords (you can watch it here), the Law Society have published important new independent research showing that the government have significantly over-estimated the savings from cutting legal aid and that the cuts will cause significant additional public expenditure elsewhere. The full report can be found here, and the Law Society’s press release here, with reaction on the Sound off for Justice site here.

In further research to be formally launched at a Parliamentary event on Thursday, the Legal Action Group have found that 88% of Londoners support legal aid being available either to all or to those earning less than the national average wage.

Not only is cutting legal aid expensive, it seems it is also unpopular. As well as emailing Lord McNally, why not pair up with a peer and tell them that? And while you’re at it, tell your MP too – because any amendments the Lords might make will have to be approved by the Commons as well.

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Weekly round up

Revised family fees

Guidance on the new family and housing with family fees has been issued; the changes – an across the board 10% cut – take effect for all cases started under the 2012 contract, which comes into force on 1st February.

New forms

Changes to civil and criminal forms will take effect later this month, with the new forms mandatory from 1st February. The new versions are available now on the LSC website for preview. Old forms signed before 1st February will be accepted until 29th February.

Criminal applications

Also from 1st February, hardship applications for criminal legal aid for otherwise ineligible clients should be submitted to the courts, not the LSC. See the LSC website for more.

Criminal costs

Tony Edwards’ regular criminal law update in the Gazette includes reports of several important cases on criminal legal aid in the Crown Court and is well worth reading. We have previously reported the McClarty and Ian Henery cases; just as important are Schilling and Otote on when more than one fee may be payable, as well as a further case on wasted costs.

Legal aid bill

See our earlier post on the progress of the legal aid bill.

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Two minutes to save legal aid for welfare benefits appeals

The House of Lords is going to debate the removal of social welfare law from scope on Tuesday.

It takes 2 minutes to email Lord McNally to tell him that this will mean that some of the poorest and most vulnerable members of society will be denied benefits to which they are legally entitled because they will no longer be able to get advice.

Please do it.

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Weekly round up

Legal aid bill

As we reported earlier in the week, the Parliamentary Joint Committee on Human Rights criticised a number of aspects of the bill, points that were echoed in the first day of the Lords Committee Stage on Tuesday. The transcript of that debate is here, and the bill homepage on the Parliament website is also a useful resource.

Family Advocacy Scheme

The LSC have issued guidance (PDF) on claiming for work done under FAS. See also the announcement on the LSC website for more information.

Immigration and Asylum court fees

New court fees for some immigration cases have been introduced. Legally aided clients will not be required to pay the fee, and those who become legally aided during the life of the case can apply for a refund. However, if the fee is paid it is not a recoverable disbursement, since legally aided clients are exempt from paying the fee.

In other news

We reported this week also on the appointment of a new LSC chief executive, Matthew Coats, and on a potentially important development for firms not awarded a contract in the recent tender round.

Finally, have a very peaceful Christmas break and our best wishes for the year ahead.

 

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More criticism of legal aid bill

The voices ranged against the legal aid bill continue to grow. The Joint Committee on Human Rights – a very influential cross-party group drawn from both Houses of Parliament – has just published its report on the bill.

Significant concerns are expressed about a number of issues, including independence of decision making, domestic violence, advice in the police station and access to justice more widely. Ahead of tomorrow’s first day in Lords committee, the report is timely.

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This week’s round up

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.

Family tenders

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.

Terrorism cases

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.

Criminal costs

There has been a significant High Court case (Lord Chancellor v Ian Henery Solicitors Ltd [2011] 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.

LSC Online

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.

In other news

See our separate posts on new costs limits for civil certificates, and new guidance on evidence of means.

 

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