The announced Cuts to Criminal Legal aid a few days before a proposed review into the impact of cuts to legal aid provide a classic insight into the deceitful culture that grips the Ministry of Justice. How do I justify that statement? It’s a simple as ABC. Not only discernible from this obvious contradictory approach of the two conflicting announcements but also comparing their published response to the consultation on the latest fee cuts to the actual factual history which exposes the flannel within it as utter humbug.
The calculation of litigator preparation fees on larger cases is based upon a page count of served prosecution evidence. The MOJ through their employees at the Legal Aid Authority (LAA) chose to manipulate the page count downwards by the artifice of taking advantage of the sensible prosecution switch from paper to electronic service and disallowing costs that included these. Quite rightly the courts saw through this and sensibly treated such electronic evidence as part of the calculation.
This was what the courts have said:
R v Napper SCCO Ref 160/14
held that “relevant circumstances” (appropriate to include it ) within the Regulations would include “whether the evidence served electronically was pivotal, whether it underpinned the understanding or admissibility of other pieces of evidence, and whether the volume of evidence disrupted the fair and predicted economic balance of the remuneration paid for a case in the light of the LAA’s position statement that the statutory changes were not designed to disrupt the status quo” (para 29). Quoted with approval in the cases of R v Dodd  Costs LR 1131 where it was said ‘Evidence served electronically is not peripheral, but is crucial and essential to the prosecution, is a factor weighing in favour of the material in question being PPE’ followed in R v Manning (3rd April 2015 Manchester Crown Court).
Let me stress the implication of these cases.
• The cases meant that the LAA had denied firms payment for work properly done in their duty to prepare cases.
• The cases meant that firms henceforth could properly claim for work done.
• The cases meant not that a sudden largesse for firms had whimsically been awarded by the courts to legal aid lawyers but that the LAA had been grossly underpaying firms.
• The cases meant inevitably there would be a subsequent slight uptick in spend on these cases which reflected this restoration in fair payments. (Look at this in the context of the overall fall in the legal aid spend from £1,289 in 2010 -11 to £863. In 2016-17.)
Let me drill down into what the MOJ say and correct it. For ease of reference I have italicised the MOJ responses.
• ‘Around half the firms currently holding a contract will be unaffected by the proposal’.
Or to put it another was half the firms will be affected and bearing in mind the recent the fall in offices by 20% in recent times and warnings from experts on the financial stress suffered by legal aid firms (Otterburn and Oxford economics) 50% is a huge amount of firms adversely affected by this proposal. Advice deserts will grow. The public will suffer from travelling greater distances if local firms withdraw or fold. Although some multi duty ghost firms may disappear as their model is tested to destruction other decent substantial firms and employers will be lost to the MOJ and public.
• ‘It is understood that large volumes of served evidence can contain material of less relevance to the client’s defence,’
There is no evidential support for the contention for such a sweeping assertion by the MOJ. Further how does one know what is ‘relevant’ to the defence or ‘pivotal’ to the case until you have read it?
• ‘and in many cases is capable of being searched electronically.’
Again this is disingenuous. There are also times when the electronic data (as is conceded) is not capable of such an electronic search. (Data files?) I say an overall cut is only logical if all cases can be searched electronically. Failing this the MOJ are implicitly acknowledging that in many of the cases the cut cannot justified even in their own terms that electronic searching is possible. The cut is not justified at all in my view due to falling legal aid expenditure as referred to above.
‘A combination of volumes, case-mix and supply side factors such as sitting days can mean expenditure in future years increases or decreases. A reduction in spend because volumes have decreased or cases have become less serious overall is a natural consequence of the number or types of cases.’
This misses the point. Whatever the volume, the time spent preparing as a litigator on each case is relative to the amount of evidence there is to study. That is so whether you have a case load of 1 or a case load of 1000. The general contract is entered into on the basis of fees agreed. Most of these are fixed fees (not in Crown Court) and often relatively uneconomic to do now especially on many cases committed to the Crown Court for sentence (such as a burglary) where the LGFS fee which is unprofitably low.
When signing the contract the firms do so on the basis that more profitable work on larger cases will help them cope with this unprofitable work. ‘Swings and roundabouts’ if you will. This is a giant and sudden spoke in the roundabout. To mix the playing fields metaphors, to ‘change the goal posts’ in this way is to invite the application of the ‘nudge economic theory’ where firms are denied this large case compensatory swing on a low paid roundabout may well result in not only firm closures but far more unrepresented clients at the Crown court as firms choose to cherry pick the Crown Court work they do.
• ‘Our PPE proposals are not designed to get us to a particular expenditure level (irrespective of volumes or case-mix). They are designed to return the element of payment driven by PPE to pre-Napper levels in line with our intended policy.’
And there you have it. The fundamental dishonesty of this MOJ approach revealed. The effect of Napper was to reverse the incorrect interpretation by the Legal Aid Agency (LAA) of the regulations that had unfairly reduced the page count on which payments to advocates and litigators is based. Had the Ministry of Justice correctly calculated those payments the 2013/4 spend on criminal legal aid would have been properly and legitimately higher.
As quoted previously R v Napper, R v Dodds and R v manning cases all refer to “whether the evidence served electronically was pivotal”. How do you know whether or not evidence is ‘pivotal’ until you have read it? This has never been explained.
The automatic disallowance by the LAA of perusal of the electronic page evidence has been successfully challenged in these cases as revealing an unfair and unlawful approach but now the MOJ decides to address that unfairness by replacing it with another injustice.
The consultation proposed an arbitrary reduction in the number of pages you can read from 10,000 to 6,000. In other words they are saying ‘so if we were wrong to disallow electronic service we will compound that recent injustice by imposing another injustice by imposing this new 6,000 page cap’!
‘ vast majority of respondents (97%) disagreed with the proposal’
The MOJ concede making once again the pointlessness of taking the MOJ consultations seriously other than as a vehicle of protest. (These people have no shame).
If the CPS etc. are wrong to serve the electronic file in such an incontinent prolix and surplus manner then is that not a matter for the Government to take up with the CPS? The defence do not generate this.
In fact I do not seek to criticise the CPS for serving relevant material (normally I complain when they do not ). The fact is cases have become more complex and involve greater volumes of material, for example the explosion of social media has created vast swathes of extra evidence which can be very demanding upon both the defence and the prosecution. It is bad enough that we are not paid to consider the defence material but certainly the MOJ should not be cutting the defence fees for dealing with the prosecution material properly served in discharge of the prosecution disclosure obligations.
Defence lawyers are not generally blessed with clairvoyance and have to read material as part of their professional duty to their clients. The logic of these cuts is that firms work for nothing beyond 6,000 pages or stop dead in case preparation and risk being professionally negligent. The MOJ will say that is not the case as if we have to read on past 6,000 we can still claim this as special preparation for this work.
What that fails to recognise is that special preparation only pays for reading and not for any subsequent work that may be needed as a result e.g. taking the client’s instructions, advising and discussing with the advocate about and any follow up work. It is impossible for firms to be placed so unfairly in this situation.
The MOJ is failing in its own statutory duty to secure that legal aid is made available by placing the defence in this position where legal aid does not cover important case preparation. Another court judgement highlighted the risk
R v Jagelo  1 Costs LO 133, Costs Judge Rowley found that ‘the use of special preparation is not a particularly attractive solution. That there to be is a potential lack of incentive for litigators to spend time on their client’s defence where a special preparation claim is likely to be required.’ The Learned Judge added that ‘the uncertainty of the assessment process is not to be underestimated, particularly where the PPE is well above the cut off. As the Law Society have quite properly pointed out in essence, a litigator cannot know how much evidence will be served when she/he is instructed in a case.
The MOJ will not deploy adequate numbers of personnel to cope with the flood of special preparation claims which will cause delay and thus additional financial hardship after firms have carried the overhead costs for a long time on these long lasting and large cases.
We do not agree that cases that were formerly VHCCs have significantly contributed to an increase in expensive LGFS cases since 2013-14. Although formally contracted as VHCCs, cases estimated to last between 40 to 60 days had actually been remunerated under the LGFS since 3 October 2011.
I challenge that assertion due to the time lag of such cases feeding into the LGFS plus there may well have been an ‘uptick’ due to, for example the recent number of serious sexual cases.
In our view, electronic material is fundamentally different, and less time consuming as it is often electronically searchable, than other material such as witness statements, records of interview and expert reports as we set out in the consultation document. We do not accept that the huge increase in PPE volume seen in LAA payments since the Napper case is entirely driven by an increase in volume of evidence served by the CPS rather that it is the result of the change in definition.
I have already dealt with the argument above relating to functionality of electronic searching. The fact is that the Courts (R v Napper et al) found the LAA were entirely WRONG not to include electronic files in the page count. They remedied an injustice. The MOJ now perpetrate a further injustice by imposing this lower page count cap.
We remain committed to working, as soon as possible, with the Law Society and other representative bodies to reform the scheme so that we measure the relative complexity of cases in a way that does not involve counting pages, but takes into account the totality of the evidence, whether paper or not. We would like to introduce a revised and future-proof scheme in 2018. Full reform taking this length of time creates a need for a short-term measure in order to relieve the financial pressure on the Ministry.
The MOJ arbitrarily withdrew from the advanced talks taking place with the profession on adopting a more sensible model for assessment of these large cases. I was personally on the periphery of these from time to time. They have unilaterally imposed this harsh cost cutting measure after the usual perfunctory tick box consultation where it was opposed by 97% of respondents who in customary MOJ fashion are duly ignored.
All the independent experts (Otterburn-Oxford etc) inform the MOJ of the dangers to a viable legal aid service of further cuts which warnings are ignored. In the meantime the profession (dealing with legal aid) ages dangerously in terms of the near future and advice deserts are likely as firms fail.
To try and disguise this blatant cut to fees as an adjustment relating to a ‘change in definition’ is dishonest. Not only dishonest but blatantly hypocritical having a few days later bowed to political and media pressure, playing to the public gallery announcing a review into the impact of legal aid cuts.
It is as easy as ABC. Further cuts are not justified as the overall spend on legal aid has fallen to critically low levels to maintain sustainability of access to Justice. In civil law this has resulted in great injustice and expense as Judges cope with litigants in person appearing before them like lost souls. In Criminal law though the implications are far starker. Reputation and liberty are in jeopardy.
Not just the reputation of those accused of crime by a state funded police and CPS. But the reputation of UK Justice is at stake at a time when, with somewhat of an air of desperation in a post referendum crisis, the Government is touting UK legal services on the international scene.
This is what Andrew Langdon QC, Chair of the Bar says in a great article about that. It made a huge impression on me and affected my already wavering default position that the ‘UK legal system is the best in the world.’
‘I have just come back from an international conference where legal aid schemes around the world were compared.- It was difficult not to notice that the shrinkage of legal aid expenditure in England and Wales is in stark contrast to expansion of such expenditure elsewhere. The Japanese delegate was so struck by the contrast with his own country that he had created a slide devoted to illustrating reduction in expenditure in England and Wales in recent years. The international audience was astonished. They asked me what had gone wrong. It was difficult to answer, and it felt a little shaming. Not least because at this same conference, in the context of Brexit and next to our Union flag, the UK government brandishes the slogan ‘Legal Services are GREAT’. Frankly, this is difficult to stomach. Great for whom?’
This shabby attempt to further cut legal aid erodes our international reputation still further. I call upon the MOJ to halt this erosion now by:
1. Halting the cut at least until the outcome of the promised review unless the review like MOJ consultations is also a sham.
2. Re-engaging in talks with the profession to reform the calculation of Litigator fees that they so ruthlessly abandoned.
In the meantime, if you havent already done so please sign this petition https://you.38degrees.org.uk/petitions/reverse-cuts-to-legal-aid-for-uk-citizens-prosecuted-by-the-state-and-others
Friday, 03 November 2017