There are warnings that government plans which would see criminal lawyers being paid for work done before suspects are charged could tip the scales in favour of the prosecution.
The Chartered Institute of Legal Executives (CILEx) has expressed its concerns in response to the government consultation on remuneration for pre-charge engagement (part of the criminal legal aid review).
The Ministry of Justice (MoJ) has argued that early and meaningful engagement between the prosecution and defence before a charging decision is made is crucial to improve the evidence disclosure process and aid swift case progression.
But while it welcomed the principle of ensuring lawyers are paid specifically for pre-charge work, CILEx warned the proposals inadvertently risk giving the prosecution greater power and influence, because prosecuting authorities would be required to make judgement calls on whether pre-charge engagement is needed.
It said the proposals “risk incentivising prosecutors to extract more information than would typically be given”, which would place defendants in an increasingly vulnerable position.
Being offered the possibility that they may not even be charged could, it warned, further encourage suspects to give up more information that normally they would be advised not to.
In its response to the consultation, CILEx argues: “The risk here, is that by subverting the usual process (and by extension the burden of proof), defendants may be exposed to undue pressure to provide further information that was not forthcoming during initial interview stages; or equally to undergo further interviews, even after the client has already exercised their right to silence, outside of the formal PACE interview setting.”
Suspects should, it adds, be able to opt out of pre-charge engagement if unsuitable, without it compromising their position at a later stage if criminal proceedings ensue.
CILEX also calls for further clarity on how the MoJ anticipates the practical operation of its proposals, including what work would attract payment, the criteria to extend payments and how practitioners can claim payments when only partial pre-charge engagement takes place.
It calls on government to consider alternatives which take into account firms’ cash flow problems amid the rising number of cases and huge court backlogs.
CILEx president Craig Tickner (pictured) said criminal legal aid practitioners are in a “perilous position”.
He commented: “The need for reform to secure fair pay for work done at all stages of the criminal law process, including the substantial time and effort required to support clients pre-charge, remains urgent.”
But the proposed payment procedures “raise the very real danger that the balance of justice will be adversely impacted in favour of the prosecution, resulting in suspects giving up information that could prejudice their position and strengthen an otherwise weak case. Effectively they impact the burden and standard of proof.”
He added: “When criminal lawyers do not even get full disclosure at a first court hearing, I struggle to see how they are meant to be able to properly advise unless there is sufficient disclosure upon which to do so.
“We urge the Ministry of Justice to take a holistic approach that addresses the significant shortfall in fees without imperilling the proper administration of justice.”
“It is not the extra money that criminal defence solicitors are so desperately in need of,” said Law Society of England and Wales president David Greene.
Though he welcomed the fee for engaging with early disclosure, he added: “This fee is simply payment for extra work that solicitors will have to do under the attorney general’s new guidance on pre-charge engagement.
“There is still an urgent need for interim relief giving that the second part of the criminal legal aid review is just getting under way and any benefits arising from it appear some way off.”
The consultation was published in December and is now closed.