06:51, August 03 79 0 theguardian.com

2018-08-03 06:51:05
Cut to legal aid fees for reading evidence ruled unlawful

The high court has ruled as unlawful the government’s attempt to cut fees paid to criminal solicitors for reading evidence.

The judgment, coming in the middle of a crisis over failures to disclose key documents that have led to the collapse of a number of rape cases, is an embarrassing setback to the Ministry of Justice’s efforts to slash its budget.

Dismissing the legitimacy of the MoJ’s consultation exercise before the proposed cut of up to 37%, two judges, Lord Justice Leggatt and Mrs Justice Carr, said it was “difficult to express in language of appropriate moderation why we consider these arguments without merit”.

The judicial review challenge was brought by the Law Society, which represents solicitors in England and Wales. It argued that the cuts were illegal because they did not take account of the massive volumes of material being generated through digital media in even routine trials.

Under the proposals, solicitors effectively would not have been paid for reading additional material above a threshold of 6,000 pages of evidence. The previous figure was 10,000 pages.

In their ruling, the judges said: “We have found that the [MoJ] decision implemented by the 2017 regulations was unlawful because the key analysis relied on … was not disclosed to the consultees, rendering the consultation process unfair, and used methods that were statistically flawed, making it irrational to rely on the analysis.”

John Halford, of Bindmans Solicitors, who represented the Law Society, said: “Legal aid was established and should function as a basic, non-negotiable safeguard of fair process and individual liberty in criminal cases. But rather than cherishing this vital part of the British legal system, successive ministers have undermined it with over a decade of cuts based on carelessly made decisions like this one.

“Had the Law Society not stepped up to defend criminal defence solicitors, the fundamental flaws in the analysis on which this decision was based would never have come to light and their irrationality would have escaped proper scrutiny.”

The Law Society president, Christina Blacklaws, said: “Criminal solicitors provide a vital public service. We have consistently warned that this fragile criminal legal aid market cannot stand further cuts.

“The changes to the litigators graduated fee scheme (LGFS) were introduced in December 2017 and have meant a huge amount of work on the most complex crown court cases has gone unpaid. Defence solicitors have faced earning up to 37% less for some large cases, yet the Legal Aid Agency has expected them to undertake precisely the same amount of work.

“We recently published new data showing that in five to 10 years’ time there could be insufficient criminal duty solicitors in many regions across England and Wales, leaving individuals in need of legal advice unable to access justice. These concerning statistics underline the need for reasonable payment for this challenging work.”

Topics