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Criminal lawyers lose challenge over committal fees

2 April 2012

A judicial review challenging the government’s decision to abolish committal fees has been rejected by the High Court.

The Law Society launched the challenge when the MoJ decided to stop paying legal aid fees for committal proceedings in October last year (see 12 December 2011).

The court heard that committal proceedings for indictable only offences had already been abolished and replaced with a ‘sending procedure’, but continued for either-way offences where a defendant elected for Crown Court trial or the magistrates’ court declined jurisdiction.

The Law Society argued that abolishing the fee was ultra vires, unlawful on the grounds of improper purpose, irrational and incompatible with Article 6 of the ECHR and Section 149 of the Equality Act.

Delivering judgment in R(on the application of the Law Society) v Lord Chancellor [2012] EWHC 794, Lord Justice Stanley Burnton rejected all of the society’s grounds.

On the ‘irrationality’ of equal pay for committals and sent cases, he said: “The work in the magistrates’ court involved in the representation of a defendant in an either way case whose case is committed to the Crown Court may be very substantially greater than that for a defendant whose case is sent.

“Nonetheless, I do not think that to provide equal remuneration for both kinds of case is necessarily irrational or of itself renders the measure unlawful.

“Moreover, there will be cases in which significant work is performed in the magistrates’ court in sent cases, for example on applications for bail and if there are arguments on reporting restrictions.

“Equally, if a defendant is adamant that he wants to plead not guilty and have a trial in the Crown Court, or if it is obvious that this course is appropriate, his legal representative may be able to postpone detailed consideration of his case until after committal to the Crown Court in much the same way as he would do for a sent case.”

Stanley Burnton LJ rejected the society’s argument that the purpose of cutting the committal fee was to pressurise lawyers to advise their clients in either way cases not to elect for Crown Court trial.

“I accept that if this were the purpose, or a purpose, of the abolition of the committal fee, it would be improper and would render the abolition unlawful,” he said.

“Any constraint on defendants who have the right to elect for jury trial must be effected in primary legislation, and I do not think that the power conferred by parliament to make remuneration orders can lawfully be used for this purpose.

“However, it is a very different thing to remove financial incentives favouring jury trial, or to create incentives for legal representatives to address issues as to plea and venue as early as possible.

“These considerations are within the scope of the statutory power, which expressly requires the Lord Chancellor and the LSC to seek value for money.”

Lord Justice Stanley Burnton added: “No-one with any acquaintance of the courts could not be mindful of the very serious financial pressures that cuts in legal aid have caused to solicitors and barristers alike.

“However, for the reasons I have endeavoured to set out, it has not been shown that the abolition of the committal fee by the amendment order was unlawful. I would therefore dismiss the claim for judicial review.”

Mr Justice Treacy agreed.

A spokesman for the Law Society said it was disappointed with the judgment, but there was no question of not mounting the challenge.

“We believe that this has an impact on the very basic principle of access to justice,” the spokesman said.

The society is disappointed the Court accepted the Lord Chancellor’s argument that the fees formerly covering Crown Court work now covers both magistrates’ court and Crown Court work, despite there being no increase in the latter.

“We are giving consideration to appealing this decision if permission is granted.”

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Legal Aid