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Criminal legal aid challenge dismissed by Court of Appeal

'Gutted' access to justice campaigners vow to continue the fight and push for legal aid to become an election issue

25 March 2015

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An appeal by the Law Society and practitioner groups against controversial criminal legal aid reforms has failed at the Court of Appeal.

The appeal, which considered the legality of the Lord Chancellor's reforms and introduction of two-tier contracts for criminal legal aid, was brought by the London Criminal Courts Solicitors' Association (LCCSA), the Criminal Law Solicitors' Association (CLSA) and the Law Society, and heard by the Master of the Rolls, Lord Dyson.

Despite hopes the court would find against Chris Grayling - who has lost several high-profile judicial reviews since becoming Lord Chancellor - Lord Dyson, sitting with Lord Justice Elias and Lord Justice Sales found that the justice secretary was right to assess that 'sufficient was being done by way of provision of cash-flow benefits under the interim payment provisions to cover investment costs to a reasonable degree'.

The court added that 'what law firms said in their consultation responses about their current position was relevant material to be considered by the Lord Chancellor. However, the Lord Chancellor was not bound to treat what they said as conclusive evidence regarding their likely future behaviour when the reforms took effect - he could rationally approach what law firms said in their consultation responses with a degree of healthy scepticism'.

Robin Murray, vice-chair of the CLSA, said: 'With all due respect to the court this seems to suggest that thousands of practitioners are unable to take their real life experiences of running a professional practice and project them forward into a [two-tier] world where present difficulties, even with an increase in volume, will be greatly exacerbated by having to do more work at uneconomic rates (due to further cuts) and over greater geographical areas.

'Many will not skim the choppy waters but sink like a stone to the depths and taking barristers chambers with them. We know our firms and what they are capable of coping with in the future far better than Mr Grayling. It is a pity the Court of Appeal was unable to accept that.'

'Legal but immoral'

Commenting on the judgment, Jonathan Black, president of the LCCSA said: 'We're gutted. It's another terrible blow for our criminal justice system and access to justice. Whilst the appeal court has found the devastating carve-up of solicitor representation is technically legal, we and many others believe it's immoral. We'll do everything we can to continue the fight.'

Black continued that the legal profession was 'staring into an abyss of rough justice'.

'The message sent by these swingeing ideological cuts and policies, coming on top of many other draconian measures, are simple. Don't be poor, don't be a victim of domestic abuse and don't be accused of a crime. Because woe betide you, the state isn't interested in providing you with the protection of the law,' he said.

The solicitor-advocate decried ministerial assurances that legal aid would be available for those in need of it.

'Unrepresented defendants will clog up our criminal courts, thousands of legal aid solicitors will lose their jobs, leaving legal advice deserts in parts of the country. Unfortunately, miscarriages of justice are an inevitable consequence of these disastrous contracts,' added Black.

Election issue

With the Labour party recently declaring it would abandon the contentious contracts if elected in May, Black called for legal aid to be given a high priority in the coming election.

'It's vital that legal aid becomes an election issue, holding politicians from every party to account. We can't stress enough that additional cuts in an already stretched system aren't necessary and we urge the public to demand a re-think,' he said.

The LCCSA said it would be considering its next step and added that it had contingency plans in place.

Law Society president Andrew Caplen said the ruling was a 'devastating blow'. The society, backed by the LCCSA, is seeking a last-minute hearing in the Supreme Court to continue its challenge.

'We are now considering our position and we will be looking to have early discussions with the new government on how to ensure access to justice for the most vulnerable in society,' he added.

'We will do all we can to support solicitors as they decide on their responses to the government's criminal legal aid contract tender process and we will continue to fight for access to justice using every means available.'

For the CLSA, Murray remarked: 'The fact that the Court Of Appeal have not ruled the Lord Chancellor's decision making process "unlawful or irrational", does not make the proposals themselves any more viable or the profession wrong in their judgment, expressed in their thousands during consultations. The signal may have "turned green" for Mr Grayling but he does have to drive the access to justice off the precipice.'

At an earlier hearing, Lord Justice Moore-Bick agreed to continue a suspension of the tender process for 527 duty provider contracts that was put in place in December.

Despite an application from lawyers to continue the suspension until an application could be made to the Supreme Court, the Court of Appeal decided not to extend the injunction of tender process.

The CLSA's vice-chair suggested the profession may seek to judicially challenge individually bidding decisions.

A spokesperson for the Ministry of Justice (MoJ) said the ministry welcomed the judgment and intended to continue with the tender for new criminal legal aid contracts as soon as possible.

Short sighted

In a statement from the chairman of the Criminal Bar Association, Tony Cross QC said the MoJ should not rush through the implementation of the two-tier tender process in the few days left before the dissolution of parliament.

'[It] would be short-sighted and unwise given the importance of the decision and the damaging consequences for the [criminal justice system] and the wider community,' he added.

The CBA said it would be consulting with its members about what action to take in light of the court's ruling.

John van der Luit-Drummond is deputy editor for Solicitors Journal | @JvdLD

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