Tag Archives: crime

LASPO review – still much to do

The Ministry of Justice published its analysis of the impact of LASPO in February. Although it acknowledges that the Legal Aid Sentencing and Punishment of Offenders Act 2012 damaged access to justice in England and Wales, the scale of any improvements is disappointingly modest. The government committed to spending only £8 million – a tiny fraction of the amount cut from the legal aid budget since 2013. At the All Party Parliamentary Group meeting on 27 February, Lucy Frazer QC MP (Under Secretary of State for Justice) stated that there would also be additional expenditure on some of the initiatives which had been announced; but this was not quantified.

There are some glaring ommissions – for example failing to extend legal aid for inquests or provide any legal aid to assist the ‘Windrush’ generation. The list of concrete proposals with dates attached is to be welcomed. They seem more likely to be implemented than the more ambitious list of initiatives with no target dates; but only time will tell.

2019

  • Expand scope to include separated migrant children in immigration – by 2019
  • Non-means-tested legal aid for parents/people with parental responsibility who wish to oppose applications for placement orders in public law proceedings – by summer 2019
  • Test changes to improve triage and signposting by the Civil Legal Aid telephone service – by summer 2019
  • Implement a campaign to improve awareness of legal aid – by autumn 2019
  • Expand scope to include special guardianship orders – by autumn 2019
  • Pilot and evaluate the expansion of legal aid for early advice in a specific area of social welfare law – by autumn 2019
  • Review whether the exceptional case funding scheme can be simplified – by the end of 2019
  • Enhance provision for litigants in person and increase funding to the litigants in person support strategy to £3 million for the next two years

2020

  • Renove the mandatory telephone gateway in Debt, Discrimination and Special Educational Needs – by spring 2020
  • Review the legal aid means test – by summer 2020
  • Review crime legal aid fee schemes – by summer 2020
  • Conduct a review of regulatory and administrative requirements passed on to providers and streamline where possible – by the end of 2020

No specific timetable

  • Work with the Law Society to explore an alternative model for family legal aid
  • Consult on proposals to provide separate guidance for families on legal aid for inquests
  • Undertake a pilot to explore how signposting can be better co-ordinated
  • Pilot, test and evaluate holistic legal support hubs ot support early resoltion of legal problems
  • Work across government to reduce preventable demand
  • Foster a culture of innovation and use data more effectively
  • Set up a Legal Support Advisory Network to make use of external expertise to shape research and evaluation

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Filed under Civil, Costs, Crime, Family, LASPO, Policy

A turbulent August

The summer is usually a quiet time; not so this year. There has been much going on, both in civil and crime, so here is a round up of recent events.

Two more JR losses

The MoJ and LAA have lost two more judicial reviews, both lost because of deficiencies in policy making and in the fairness of the LAA’s approach – making three in recent months (following the housing court tender) where the High Court has been seriously critical of MoJ / LAA failings.

In The Law Society, R (On the Application Of) v The Lord Chancellor [2018] EWHC 2094 (Admin)Leggatt LJ and Carr J quashed the recent changes to LGFS. Although critical of the Law Society’s conduct of the litigation, their strongest words were saved for the conduct of the MoJ consultation, which was found to be not open and transparent, in particular because the underlying analysis was not only withheld but concealed. The analysis itself was statistically flawed and could not be relied on. And, in respect of the Lord Chancellor’s argument that these failings did not prejudice the fairness of the consultation, the court said that “It is difficult to express in language of appropriate moderation why we consider these arguments without merit”.

Ames, R (On the Application Of) v The Lord Chancellor [2018] EWHC 2250 (Admin) is a case about the quantum of counsels’ fees in a criminal VHCC. As part of the negotiations, the LAA relied on figures produced by its internal “calculator”, but refused to disclose the calculator or any other policy or guidance it used for setting the amounts of reasonable work and the fees payable. The court pointed out that for all other fee schemes, the rates of pay and the basis of calculating fees were published in regulations. It found that the failure to disclose it was irrational and in breach of a duty of transparency and clarity to those whose fees were to be determined by it, a failing compounded by a further failure to engage with the arguments counsel seeking payment made, and mistakes in the LAA’s own calculations. The court directed the calculator and associated guidance to be disclosed.

New civil contracts start 1 September – or do they?

Organisations awarded civil contracts from 1 September 2018 were, in many cases, left in considerable doubt about whether they’d be able to continue as the LAA failed to upload contracts for signature for some successful bidders. Unless the contract has been uploaded by the LAA, and then accepted and executed, you do not have a valid 2018 contract and will not be paid for work done from 1 September 2018 (except under the remainder work provisions of the old contract).

There was no public announcement of what organisations in this position should do in the run up to the start date. LAPG was in constant contact with the LAA and kept its members up to date as best as it could (any legal aid lawyers not members of LAPG really should be). But it was not until late on Friday evening, just before the midnight end of the old contract, that the LAA announced that it was creating a special seven day emergency contract. It has issued further guidance on Monday – if your organisation is affected, make sure you check Bravo regularly and have uploaded everything the LAA has asked for. The LAA has said that organisations operating under the emergency contract will not be able to apply for certificates through CCMS, so you should either wait until your full contract is confirmed, or – if the work is urgent – call the LAA on 0300 200 2020.

New civil guidance

The LAA has begun the process of updating its guidance to take account of the 2018 contract – so far the costs assessment guidance and the escape cases handbook have been updated.

AGFS consultation

As part of its deal with Bar that led to the calling off of action earlier this year, the MoJ promised to re-work the AGFS scheme and invest a further £15million into it. The MoJ opened a consultation into the detail of how this would be done – it closes on 28 September.

The new LAG Legal Aid Handbook 2018/19 is out now – featuring full coverage of the civil and criminal schemes, fully revised and updated and including the 2018 civil contract. This edition includes brand new chapters on CCMS and community care, specialist chapters on housing, family, mental health, immigration and crime work, and greatly expanded coverage of civil costs. Written by a team of legal aid experts and edited by Vicky Ling, Simon Pugh and Sue James, it’s the one book no legal aid lawyer can afford to be without. Order your copy here now.

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Filed under Actions Against the Police, Civil, Community Care, Crime, Family, Handbook, Housing, Immigration, LASPO, Mental Health, Policy, Public Law, Social welfare

LAA amends 14 hour rule for crime duty solicitor

Following discussion with representative bodies, the LAA has amended the crime contract in respect of the 14 hour rule for duty solicitors. The amendments come into force on 23 July. With effect from that date the scope of what can be included in the 14 hour rule has been widened to include

  • Work under the contract – such as police station and Magistrates Court work
  • LGFS and AGFS work
  • Work under the armed forces legal aid scheme
  • Work under a court appointment for cross-examination of witnesses
  • Privately funded criminal defence work which would come under one of the above headings but for the client being ineligible for legal aid or otherwise electing to pay privately

Where you rely on private work you will need to have consent from your client for the LAA to check what work was done for the purposes of monitoring compliance with the rule. If consent is not given or not sought you cannot rely on this work. This is a positive change which goes some way to broaden the scope of the 14 hour rule. Many practitioners and representative bodies welcomed the principle of ensuring that duty work is only done by those genuinely engaged in the work for the firm benefitting from it. However the narrow drafting of the rule, and some inconsistencies of approach by contract managers, has caused some difficulty in practice. However, while it broadens the scope of what can be counted towards the 14 hours, the change does not affect how the 14 hours are measured. It continues to require an average of at least 14 hours work per week on qualifying work, measured on a rolling monthly basis. Practitioners have expressed concern about the impact of this rule, and its potential discriminatory effect, on those with different working patterns – such as carers, and parents who do not work during school holidays.

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Filed under Crime, discrimination, Policy

LAA amends contracts for GDPR

The LAA has amended all current contracts in order to meet the requirements imposed by the General Data Protection Regulation (Regulation (EU) 2016/679) and the Law Enforcement Directive (Directive (EU) 2016/680), being implemented under Part 3 of the Data Protection bill. Amendments regarding the GDPR apply from 25 May 2018. Amendments relating to the Directive apply from 6 May 2018.

There are some detailed obligations. The LAA require you to notify them within 5 business days if you receive the following in relation to LAA or shared data:

  • A data subject request
  • A request to rectify, block or erase personal data
  • A complaint or other communication about your (or the LAA’s) handling of data
  • A communication from the Information Commissioner

You must also indemnify the LAA if it is fined because you fail to comply with the legislation.

You can find more information here.

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Filed under Actions Against the Police, Advocacy, Civil, Clinical Negligence, Community Care, Crime, Family, Housing, Immigration, Mental Health, Public Law, Social welfare

Criminal Bar action underway

The Criminal Bar’s action against the reforms to AGFS, which came into force on 1 April, started this week. Many barristers have indicated that they will not accept instructions, or returns, on cases with a representation order dated on or after 1 April, and which are therefore subject to the new AGFS regime. More information can be found on the CBA website here. Meanwhile, the Law Society’s judicial review of the reforms to the LGFS scheme is due to be heard soon.

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Filed under Costs, Crime

Some prison law cases back in scope

Following the decision of the Court of Appeal in Howard League for Penal Reform & Anor, R (On the Application of) v The Lord Chancellor [2017] EWCA Civ 244, new regulations have come into force returning some prison law cases to the scope of legal aid.

The Criminal Legal Aid (Amendment) Regulations 2017, in force on 21 February 2018, bring the following types of case back in:

  • Advice and representation for pre-tariff reviews for life and indeterminate sentence prisoners before the Parole Board;
  • Reviews of classification as a category A prisoner;
  • Placement in close supervision and separation centres within prisons.

These cases are funded as criminal legal aid, using advice and assistance and advocacy assistance. The usual means tests apply and payment is the same as for the prison law cases currently in scope. Amended criminal contracts have been issued and there are revised CRM3 and CRM18a forms on the LAA website. The LAA has said it will continue to accept old forms until 31 May 2018.

Congratulations to the Howard League and the Prisoners Advice Service, which have brought this change about following three years of litigation. It is a rare example of the scope of legal aid widening post-LASPO.

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Filed under Crime, LASPO, Policy

LASPO review finally announced 

The long-awaited review of LASPO, promised by the government within three to five years of implementation, has finally been announced.

In a written statement to Parliament yesterday, the Lord Chancellor said it would be conducted by MoJ officials, with input from interested parties, and would report by the 2018 summer recess (which would take it just beyond five years since LASPO came into force in April 2013).

The statement is here, and the accompanying memorandum is here

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Filed under Actions Against the Police, Civil, Clinical Negligence, Community Care, Crime, Family, Housing, Immigration, LASPO, Mental Health, Policy, Public Law, Social welfare