15/03/2016
Nick Ross, criminal practitioner and SAHCA committee member, writes:
The announcement in late January of the reversal of the proposed two-tier Duty Solicitor contracting process combined with the suspension of the further cut to criminal legal aid fees of 8.75% is clearly of great importance to lawyers specialising in criminal law. In February the MOJ announced that one fifth of the courts and tribunals in England and Wales are to close.
Many firms have been despondent in the light of decreasing workloads, increasing challenges and constant battles with our paymasters, The Legal Aid Agency. However, some are of the opinion that the recent significant developments might just represent the turning-point so many firms have been waiting for.
Firstly, the MOJ conceded their much maligned two tier duty solicitor contract tender, which in the simplest of terms means that the proposed reduction from around 1500 firms to 500 or so will not now squeeze the profession and reduce access to justice and access to criminal work for so many practices and their clients. The Justice Secretary The Right Hon. Michael Gove recognized in the climb-down that the MOJ had identified other ways of achieving economies and also that they faced real problems in defending the litigation instigated by around 100 disappointed applicant firms. So many firms were granted a reprieve, at least for 12 months whilst a review is undertaken. But, not only was there that welcome news for so many firms, also the MOJ agreed to suspend the previously introduced 8.75% cut in Criminal Legal Aid fees as from 1st April, which in effect gives a rise after the cut was implemented more than six months ago. This was the second such cut in 12 months, on the back of around 20 years of absolutely no rises………unbelievably, literally none. Strictly this suspension of the cut reverts to the status quo pre- July 2015, but it seems most criminal solicitors were not expecting this piece of good news.
Secondly, the Court closure consultation announcement by the MOJ involves the closure of 86 courts nationally, the equivalent of 1/5 of the court estate, and the majority of these relating to the criminal jurisdiction – in fact around 60 Magistrates’ Court venues. The Law Society and other organisations have expressed concern, largely appertaining to reduced access to justice for court users and increased travel, for many to court centres much further than has hitherto been the case. Centralisation seems to be the way forward for the MOJ, with huge savings being achieved by the closure of court-houses. However, it may be that for solicitors, especially as advocates practising in the surviving and potentially busier courts, there may be a paradoxical advantage. In many respects less courts means less venues to cover and less advocates needed to be deployed. Take Greater Manchester as an example, currently there are 8 Magistrates’ Courts although only 1 sitting on Saturdays and Bank Holidays. The plan is for the closure of 3, leaving 5 in a metropolitan area, with high volume and a high crime rate. Often firms are spread thinly across multiple court centres and extra cover is needed, for example by counsel. With less court venues to attend, despite the travel challenges, it may just be that solicitor advocates will have an improved chance of providing the advocacy cover in-house – less venues, not so thinly spread, less external advocates required, and therefore familiar competent advocates representing clients who know their “brief”.
Listing in combined and centralised courts may well throw up greater challenges as these busier courts and their lists often result in greater delays. Listing varies court to court but some practitioners may well engage with court user groups in an attempt to secure timed listing of cases e.g. Pre-sentence reports cases in an afternoon. Indeed, the availability of the advocate should be an important consideration which the new “Better Case Management” initiative in the Crown Court is supposed to recognize.
So these dramatic developments may well give the solicitors’ profession a fairer chance of providing a fairer and more consistent service, with clients hopefully achieving some benefits despite the closure of courts.
Please note that this article is meant as general guidance and not intended as legal or professional advice. Updates to the law may have changed since this article was published.