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Further criminal legal aid cuts untenable and short-sighted

Rising litigation costs beyond the control of solicitors, says Law Society president

23 March 2017

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A rise in the volume and complexity of criminal prosecution cases makes further legal aid fee cuts untenable, the Law Society has argued in response to the latest Ministry of Justice consultation.

In 2015/16 £341m was paid under the litigator graduated fee scheme (LGFS), but the MoJ is aiming to return expenditure on the scheme to 2013/14 levels; around £292m.

In its response, Chancery Lane has said that changes to the LGFS for cases in the crown court would impact on access to justice for the vulnerable.

The president of the Law Society, Robert Bourns, said: ‘Those dealing with this work have not received any rate increase since 1998 and have already absorbed a cut of 8.75 per cent.

‘The relatively small savings that might be obtained from the proposals do not warrant the potential damage they could cause to the sustainability of a very fragile market, and to access to justice for vulnerable people.

‘There is a significant possibility that the cuts could create greater costs for the MoJ than the £30m they are hoping to save.’

Under the plans, published in February, the MoJ will slash payments for paper-heavy crown court cases. The ministry claims the change is necessary due to more pages of evidence now being served by the Crown Prosecution Service, increasing the average costs per case.

However, solicitors argue that the increase in evidence reflects a rise in complicated and serious cases, such as fraud or historic sex and grooming cases, which require additional work.

After the proposals were announced, James Parry, chair of the Law Society’s criminal legal aid committee said the cuts were unnecessary and ill-timed, ‘given the long-term project to reform the litigator fee scheme, which will ultimately remove reliance on the pages of evidence which are creating this problem’.

A joint statement from the society, Legal Aid Practitioners Group, Criminal Law Solicitors Association, and London Criminal Courts Solicitors Association said: ‘Any further cut threatens the sustainability of all firms regardless of size or structure. It therefore follows that a line must be drawn as the profession cannot absorb any more cuts.’

The government says the proposed cut is only an interim measure, but Chancery Lane argue that such ‘a quick fix money saving solution’ is ‘highly questionable and at best short-sighted’.

‘The MoJ’s previous research showed a further cut to crime fees would drive firms out of business, leaving vulnerable people without representation and creating additional work for other agencies,’ said Bourns. ‘We do not believe there has been any change in circumstances that renders such a cut necessary now.

‘The government has not yet quantified the savings already being made through a number of ongoing reforms to the criminal justice system. The impact of the first fee cut has not yet been assessed – either on the sustainability of legal aid firms or on the savings it has brought to the government.’

With wide ranging reforms to the courts and tribunals set to be introduced, Bourns said savings from these initiatives must be taken into account before potentially damaging cuts are made to solicitor’s fees.

‘The MoJ presents the cut as an attempt to address an increase in costs since 2013/14. However, solicitors cannot be held responsible for an increase which is largely due to a variation in the case mix in the crown court as a result of a change in police behaviour around charging decisions.

‘It is also a fact that the service of large amounts of electronic evidence has increased significantly in recent years. This has inevitably had an impact on the budget that is beyond the control of solicitors.’

The MoJ’s consultation on reforming the LGFS closed on 24 March.

John van der Luit-Drummond is deputy editor of Solicitors Journal

john.vanderluit@solicitorsjournal.co.uk | @JvdLD

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