Tag Archives: judicial review

Litigator Graduated Fee Scheme – Government lose another Judicial Review

Today it was announced that the Government had suffered another setback in its relentless attack on publicly funded legal representation.  Since being forced to withdraw its controversial two-tier plan for criminal work it has been forced to re-instate certain prison law cases into the scope of legal aid and had to abandon a scheme to tender for Housing Duty Solicitor schemes on the basis of both quality and price.

The Government had reduced payments by an unsustainable 37% argued The Law Society, putting at risk the viability of firms providing advice and assistance under the legal aid scheme.  This would have a knock on effect for potential clients around the country as local solicitors’ practices had to close.

It is hope that this latest decision will force the Ministry of Justice to the negotiating table to devise a scheme that sees economically viable rates of pay in the most serious and complex of cases.

LGFS Judicial review

Bindmans Press Release

Bindmans, the solicitors instructed by The Law Society in judicial review issued the following press release on 3 August 2018:

“Today, a Divisional Court comprising Lord Justice Leggatt And Mrs Justice Carr DBE upheld a judicial review challenge brought by the Law Society to a decision made by the Lord Chancellor to introduce a 40% cut to the maximum number of pages of prosecution evidence (‘PPE’) that count for payment of criminal defence solicitors. The regulations introducing the cut will be quashed (para 143 of the judgment).

In practical terms, the cut has meant a huge amount of work on the most complex Crown Court cases has been unremunerated since December. Payments to criminal defence solicitors have been up to 37% lower, but the Legal Aid Agency has expected precisely the same amount of work to be done as before. This was the first occasion in which a cut of this kind had been made to Criminal Legal Aid.

The Divisional Court’s judgment is highly critical of the way the cut decision was made. Discussions with the Law Society on reform of the LGFS had been in train (para 23), but were “terminated”  shortly before Ministry of Justice officials announced proposals to make the cut were announced in 2017. However, consultees were not told about or shown the analysis of costs trends officials had prepared for the Lord Chancellor to answer the “crucial question” of whether a cost judge’s decision had caused a substantial increase in LGFS costs and undermined the policy intention of the scheme (para 93). The Court observes (para 86) “no reason – let alone a good reason – has been given for not disclosing during the consultation process the LAA analysis and its results…”, concluding (para  97): “the failure to disclose this information was a fundamental flaw in the consultation process which made it so unfair as to be unlawful.”

An impact assessment accompanying the consultation paper had compounded the unfairness by giving a“misleading” impression of the basis for the decision (para 94):

“It should also go without saying that consultees are entitled to expect that consultation documents will not be positively misleading.  When a draft Impact Assessment is published which purports to set out the “evidence base” for the proposal, including an analysis of costs and benefits and a statement of key assumptions and risks, the reader would understand that any analysis relied on to estimate the increase in expenditure which it was the policy objective to reverse was described in the Impact Assessment.  The fact that the responsible Minister has certified that the Impact Assessment “represents a fair and reasonable view of the expected costs, benefits and impact of the policy” would further reinforce that understanding.”

As to the Lord Chancellor’s arguments that consultees ought to have deduced there was an analysis and sought it, the Court comments (para 93):

“It is difficult to express in language of appropriate moderation why we consider these arguments without merit.  The first point, which should not need to be made but evidently does, is that consultees are entitled to expect that a government ministry undertaking a consultation exercise will conduct it in a way which is open and transparent.”

The analysis was disclosed for the first time during the course of the litigation and then analysed by the Law Society’s expert witness, Professor Abigail Adams, who identified fundamental errors. The Court went on to hold that these errors meant it had been irrational for the Lord Chancellor to rely on it, It was (para 122):

“we see no escape from the conclusion that the LAA analysis was vitiated by methodological flaws and that no reasonable decision-maker could reasonably have treated the figure of £33m [of increased cost] produced by that analysis as an estimate of increased expenditure attributable to the Napper decision on which reliance could reasonably be placed.”

The Law Society was represented by John Halford, Farhana Patel, Theo Middleton and Patrick Ormerod of Bindmans LLP and barristers Dinah Rose QC and Jason Pobjoy of Blackstone Chambers.

John Halford said today:

“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 full judgement of the case can be found here:

Judgement in The Law Society v The Lord Chancellor

Contact one of our criminal law specialists

We provide advice and representation under the legal aid scheme for cases heard before the Crown Court.  Some information about this legal aid scheme can be found here.

You can find your nearest office here.

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New regime for licence conditions from November 2017

Released, But Not Free

For many offenders a prison sentence is a grim reality.  It is a punishment that must be served.  It will impact not only on the single individual but in many cases on their family as well.

licence conditions legal advice
Prison law specialist Irene Tolley

As a result, when the day of release comes it will be a significant moment.  The door on the punishment has closed.  It is an opportunity to draw a line under the past and move on.  For many offenders, however, the release from custody comes with conditions.  These are in the guise of license conditions that must be abided by.  There is the threat of a return to prison if not obeyed in full.

The government has announced changes to the release license regime that come into effect on 13th November 2017.  Prison law specialist Irene Tolley outlines the changes below.

New Licence Conditions Category

In the future, Release licenses will be able to restrict ‘specified conduct or specified acts’.

The government intends that conditions are to be put in place for particular offenders that will:

• Prohibit gambling
• prevent the drinking of alcohol
• ban the use of some social media websites

In planning for an offender’s release, a supervising officer will create a release plan.  This will include the consideration of whether additional licence conditions are appropriate. These conditions are then submitted to the Governor of the releasing prison.  They will review their application on behalf of the Secretary of State. Only once the Governor confirms the conditions do they become legally enforceable.

Why Prohibit Alcohol Consumption?

licence conditions legal adviceThis is what the government has to say about this:

“The consumption of alcohol is a known factor in recidivism for some offenders. In 2004, the Prison Reform Trust published a paper which estimated that 63% of male offenders and 39% of female offenders within the England and Wales prison estate admitted to hazardous drinking before being imprisoned. At the same time, the estimated cost of alcohol-related crime and public disorder was £7.3 billion per year. A condition to require an offender not to consume alcohol would set an expectation for an offender on licence and compliance with that condition would be subject to recall.”

Can I challenge my Licence Conditions?

To be lawful, any licence condition, whether standard or additional, has to be necessary and proportionate to manage the offender’s risk of reoffending and risk of harm. It is always open to an offender to challenge the imposition of a licence condition by way of an application for judicial review.  This would be where the offender considers that the condition is not necessary or proportionate to manage the risks of his case.

How We Can Help

licence conditions legal advice solicitor
Derby crime and prison law solicitor Rosamunde Benn

We can assist with any sentencing related query.  Please contact either Irene at our Nottingham office on 0115 9599550 or Derby crime and prison law solicitor Rosamunde Benn at Derby on 01332 546818.

Alternatively you can use the contact form below.

Contact - Prison Law




Convicted Before A Magistrates’ Court – Can I Appeal?

Convicted Before A Magistrates’ Court – Can I Appeal?

If you have been convicted by the Magistrates’ Court you might feel aggrieved at the outcome.  It is natural that you will wish to consider a Magistrates’ Court appeal.

Your grievance may arise because you think that your case was not prepared correctly.  It might be that you believe that the Magistrates’ reached the wrong result on the evidence that was heard.

For many people, a conviction can be a major barrier to obtaining or keeping employment.  It may be an impediment to overseas travel.  This may well be the case even where the offence itself is relatively minor.

We acknowledge that the court process can be far from perfect. If you have a grievance, it is only right and proper that you consider your options. including a Magistrates’ Court appeal.

So, what can I do about it?

Magistrates' Court appeal solicitor adviceThe first thing to remember is that you must act quickly.  You only have 21 days from the date of sentencing to appeal your conviction.  As a result you should not delay in contacting us to discuss your Magistrates’ Court appeal.

If more than 21 days have passed then all might not be lost.  Please get in touch as soon as possible so that we can advise you about the possibility of an ‘out of time’ appeal.

When you contact us, we will also be able to consider and advise as to whether there are other avenues of appeal.  These may be either by way of judicial review or appeal by way of case stated.  Both of these methods of appeal are to the High Court.  These might be more suitable.

I pleaded guilty, can I appeal?

You might be able to appeal against ‘conviction’ if you pleaded guilty.  This will only be possible in limited circumstances.  These will exist only if your plea is ‘equivocal’. In this instance, there are two potential remedies that we will discuss  with you.  We will provide advice accordingly.

Do I need permission for a Magistrates’ Court appeal?

An appeal against conviction from the magistrates’ court to the crown court is what is termed ‘an appeal as of right’.  This means that you do not need any permission to appeal as long as your appeal is in time.

In effect, you are entitled to ‘2 bites of the cherry’ in terms of your conviction.  There are, however, some other issues such as sentence and costs that you should consider first.

Is my Magistrates’ Court sentence suspended pending an appeal?

Your sentence is not suspended pending appeal, although:

  • we can apply for bail if you are in custody; and
  • Apply for any driving disqualification to be suspended.

If you have been made subject to a community order, this will need to be complied with.  We will, however, take steps to try and expedite the hearing.

What happens at the appeal hearing?

magistrates' court appeal legal aid solicitorThe crown court, presided over by a Judge and Lay Magistrates (rather than a jury), will hear the case afresh.

As a result we have a valuable opportunity to review the case again on your behalf.  We will be able to identify what might have gone wrong at the first trial.  This will allow us to take steps to remedy any failures.

We can also examine what other evidence ought to the gathered on your behalf.  We can advise on any additional lines of attack that can usefully be deployed against the prosecution case.

If I lose the appeal, what happens?

If this happens then you will be re-sentenced by the crown court.  In addition you will be liable for prosecution costs. We will have an opportunity to discuss the costs implications with you in detail before you make any decision as to whether to appeal.

It is important to note that the crown court is not restricted to the same sentence imposed by the magistrates’ court.  As a result you may receive a higher penalty.

This will be one of the risks that you will need to balance.  This is also why we will at an early stage examine the other avenues of appeal with you such as judicial review and case stated.

Can I get legal aid?

magistrates' court appeal legal adviceMany people are eligible for legal aid.  We will advise you as to your eligibility when we meet with you.

If legal aid is not available for your Magistrates’ Court appeal then we will be happy to discuss fixed fee arrangements.  The cost of our high-quality representation is almost certainly much less than you might imagine it to be.

If you are successful in your appeal, and have funded your case privately, then some of your costs may be refunded to you.

Contact your nearest office for advice

magistrates' court appeal legal advice east midlandsAlthough you must act quickly in relation to your Magistrates’ Court appeal you must also consider it fully.  Please contact your nearest office to speak to a solicitor experienced in criminal law to provide you with full advice.

Alternatively you can use the contact form below and we will be in touch with you.