The Law Society has issued a new practice note setting out the requirements of the legal aid contracts and of professional conduct in deciding whether to accept instructions in criminal legal aid cases.
It reminds practitioners that, in the main, only duty solicitors acting as such are required to take on work – and then only of the types prescribed in the contract.
It also sets out the relevant professional conduct obligations. These apply both at the level of individual cases – such as the duty to advise of the availability of legal aid before accepting private instructions – but also at the level of practice management. There is a particular obligation on COLPs and COFAs to ensure their practices are managed responsibly, which includes financial prudence.
There is nothing new in the practice note but it comes at a time when changes to Crown Court fees and to court appointed work are under consideration (though no decisions will be made until after the general election). It reminds practitioners that they are not required to take on all cases and that there may be circumstances where there is a professional duty not to do so. The bar took a similar approach some years ago when it deemed criminal fees not to be a proper fee, thus exempting these cases from the cab rank rule.
Filed under Costs, Crime, Policy
The major parties have now published their manifestos for the forthcoming general election. This is what they have to say about legal aid.
The Conservative manifesto says:
- Publicly-funded advocates will have specialist training in handling victims before taking on serious sexual offences cases.
- To ensure that the pain and suffering of the Hillsborough families over the last twenty years is not repeated, we will introduce an independent public advocate, who will act for bereaved families after a public disaster and support them at public inquests
- We will strengthen legal services regulation and restrict legal aid for unscrupulous law firms that issue vexatious legal claims against the armed forces
The Labour manifesto says:
- Labour will immediately re-establish early advice entitlements in the Family Courts. The shameful consequences of withdrawal have included a requirement for victims of domestic abuse to pay doctors for certification of their injuries. Labour’s plans will remove that requirement. At the same time, we will legislate to prohibit the cross examination of victims of domestic violence by their abuser in certain circumstances.
- We will reintroduce funding for the preparation of judicial review cases. Judicial review is an important way of holding government to account. There are sufficient safeguards to discourage unmeritorious cases.
- We will review the legal aid means tests, including the capital test for those on income-related benefits.
- Labour will consider the reinstatement of other legal aid entitlements after receiving the final recommendations of the Access to Justice Commission led by Lord Bach.
The Lib Dem manifesto says the party will:
- Conduct an urgent and comprehensive review of the effects of the Legal Aid, Sentencing and Punishment of Offenders Act on access to justice, particularly funding for social welfare appeals, and domestic violence and exceptional cases
- Secure further funding for criminal legal aid from sources other than the taxpayer, including insurance for company directors, and changes to restraint orders.
UKIP and the Green Party make no mention of legal aid in their manifestos.
The LAA has extended the deadline for accepting crime contracts and securing slots on the next duty rotas by two days.
The deadline was due to expire on Monday 20th March, but many firms have reported that they have still not received their contract schedule – and so could not accept and return it.
The LAA has therefore extended the deadline until 22nd March. It posted this on its website this afternoon:
Contract schedules for organisations that have completed verification have now been uploaded and are ready to accept. Unfortunately, this process has taken longer than anticipated and we apologise for any inconvenience.
Accordingly, we have extended the time for you to accept these contracts and secure your rota slots. You now have until 5pm on Wednesday 22 March to accept.
If you have not received a contract schedule and have not received a communication from us about any further delay with your contract documentation, you should contact us via the Bravo E-tendering system and headline your message ‘contract query’.
While the time has been extended, we would advise that you accept your contract as soon as possible in case you encounter any technical difficulties.
We are continuing to upload crime contract schedules for all those organisations which will be included on duty rotas in April 2017. We are aiming to complete this today.
If you have not received a contract schedule by 5pm today (16 March 2017) and consider that you should have, please check Bravo as we may have already communicated with you about this.
If you consider that your contract schedule is still outstanding please notify Bravo e-tendering system heading your message ‘Contract query’.
If you are having trouble accessing your documents in CWA please refer to the guidance available on our website.
Please also ensure that you have set up the requisite number of ‘designated signatories’ on CWA. Guidance on how to allocate a designated signatory in CWA is available on our website.
Alongside the consultation on AGFS, the MoJ has launched another – this time on LGFS and on fees for court-appointed advocates to cross-examine on behalf of unrepresented defendants.
The LGFS consultation proposes reducing the PPE limit from 10,000 to 6,000 pages, with anything over that being paid as special preparation rather than PPE. The justification is to reverse increases on overall spend since costs decisions widening the definition of PPE in cases involving electronic evidence. It is said to represent a temporary measure pending wider reform of LGFS.
Although no firm announcement has been made and a connection is not explicitly drawn, the paper strongly suggests that the second 8.75% fee cut for litigators, postponed for one year by Michael Gove, will not be introduced only if this change is made instead.
The paper also contains a separate proposal to reduce the fees paid to court appointed advocates in cases where unrepresented defendants are prevented from cross-examining complainants in person. Currently “reasonable fees” are allowed; it is proposed to reduce that to legal aid rates.
The consultation paper can be found here, and closes on 24 March 2017. Practitioners will need to give it careful thought and respond accordingly. It is explicitly designed to reduce the costs payable in more complex Crown Court cases – the impact of that will vary from firm to firm and may be more or less than the across the board 8.75% cut in individual cases.
Following recent problems in processing CRM12 forms the LAA has delayed issuing new duty rotas until March, with revised scheme membership lists coming out this week.
The MoJ has launched a consultation on changes to advocacy fees for Crown Court work. The changes are designed to be cost neutral across the budget as a whole, but both shift payments around between case types and break down the single case fees into fees based on stages of the case. The paper proposes a return to individual fees for individual hearings. It also, in most cases, moves away from using pages of prosecution evidence (PPE) as a proxy for case complexity, relying more on the nature and classification of the offence; there are more classes proposed than currently.
The proposals have been welcomed by the Bar Council, but criticised by the Law Society as effectively removing money from junior practitioners to increase pay for more senior ones.
Criminal practitioners will want to consider the proposals carefully, especially the potential impacts on their own practice. The consultation closes on 2 March.