The MoJ has issued a consultation paper on advocacy in criminal cases in the Crown Court and above. It is aimed at the preservation and enhancement of quality of advocacy, though most of its practical measures appear to have been lobbied for by the Bar with the aim of protecting it from competition from solicitor advocates. The evidence base for the proposals in the paper is thin and anecdotal.
Key proposals are:
- The introduction of a panel of defence advocates. All advocates instructed in publicly funded Crown Court cases must be on the panel, which would sit alongside rather than replace QASA.
- There would be a statutory ban on referral fees to strengthen the current contractual and regulatory bans. This would include “disguised” referral fees, where payments described as administration and management fees are in fact payments in return for the provision of instructions.
- Stronger measures to protect client choice and safeguard against conflicts of interest – which means in practice restricting the use of advocates employed by the litigator firm. Proposals range from a mandatory declaration of advice given to a client on choice of advocate to an outright ban on using advocates employed in the same firm.
It is interesting timing that this paper was published before the results of the crime duty tender, expected this week. If the proposals are enacted, they will – depending on which proposals and how – have an impact on bidders ranging from an additional administrative burden to a ban on an entire business model. Given that many firms will have factored a degree of in-house advocacy into their business modelling and decision making on the sustainability of the contracts, it is unfortunate that such potentially significant changes are proposed after bids were submitted and that firms will have to confirm acceptance or rejection of contract offers without knowing if the basis of their business model will fundamentally change. It is also ironic that a measure aimed at protecting client choice does so by restricting client choice.
The Anti-Social Behaviour Crime and Policing Act 2014 (ASBCPA) will come into force in March 2015. Injunctions in breach proceedings under Part 1 of the Act (and other Orders) will replace ASBOS. The new injunctions will be based on the civil standard of proof. Applications will be heard in the Youth Court for under 18s and in the County Court for adults.
The government has decided that ASBCPA injunctions will fall under the crime contract. Civil practitioners will be able to apply for individual case contracts to represent clients with whom they have previously had involvement. Payments for breach proceedings will be based on crime fees in the Magistrates’ Court. Payments for applications and appeals against a part 1 injunction will be made at standard civil legal aid rates for legal help and legal representation. All fees will include travel and waiting time.
These changes will not affect housing practitioners defending clients against anti social behaviour related possession claims. However, the changes may represent an opportunity to liaise with crime practitioners and encourage referrals of clients involved in anti social behaviour injunction cases, in order to protect their (and their families’) homes.
More information can be found here.
Rights of Women have been successful in obtaining permission to challenge the requirements to produce evidence of domestic violence/abuse as set out in Regulation 33 of the Civil Legal Aid Procurement Regulations 2012 (as amended in April 2014). They argued that the regulations are too narrowly drafted and do not give effect to Parliament’s intention to protect people who are victims of violence/abuse. ROW were represented by the Public Law Project and supported by the Law Society. A full hearing is expected before the end of the year.
The LCCSA and CLSA were also successful in challenging the consultation process in relation to the proposed tender for crime Duty Contracts. However, the application to quash the second 8.75% fee cut next year was not granted. The judgment can be downloaded here.
It now appears that the MOJ will have to run a further short period of consultation, which could make the timetable, already tight, even more challenging. The MOJ tweeted that they were considering the techical issues concerning the consulation. We await further official announcements in due course.
The Criminal Legal Aid (Remuneration) (Amendment) (No.2) Regulations 2014 have been published, and come into force on 2nd October. They implement promises the government made earlier in the year to introduce payments on account for Crown Court fees.
For representation orders issued on or after 2nd October, litigators may claim an interim payment when:
- a not guilty plea is entered at a plea and case management hearing (provided it is not a case where the defendant has elected Crown Court trial);
- a retrial is ordered and representation is transferred to a new litigator (provided it is not a case where the defendant has elected Crown Court trial);
- a trial listed for 10 days or more has commenced.
Paragraphs 11 to 14 of new Regulation 17A of the Remuneration Regulations (see the schedule of these amendment regs for the text) sets out the mechanism for calculating interim payments:
Also, there is a change to the fee regime for both litigators and advocates. In cases where the defendant has elected Crown Court trial and the prosecution offer no evidence with a not guilty verdict being entered, a graduated fee rather than a fixed fee may be claimed. Again, this applies to representation orders issued on or after 2nd October.
Our Resources and Handbook Updates pages have been amended to reflect these changes.
Just to remind people, further to our previous post, that time is fast running out to submit pre-4 August forms. Completed paper forms, submitted by post, signed and dated before 1 September 2014, will be accepted by the LAA as long as they are received on or before 5pm on 5 September.
From 1 September 2014, the new forms are mandatory.