Tag Archives: legal aid

News

Solicitors – our own worst enemy?

The Ministry of Justice is consulting on some minor tweaks to the current legal aid payments for Crown Court litigation and advocacy. The full consultation and supporting documentation can be found here.

Partner and solicitor advocate Andrew Wesley was one of only 46 solicitors who chose to take part in seven focus groups around the country. At the Nottingham meeting, several firms were represented by experienced practitioners, but many firms did not send a representative and their voices were not heard.

33 barristers took part in 4 similar focus groups and expressed their opinions on a range of matters relevant to the consultation. Unfortunately, and perhaps unsurprisingly, they made a case for an increase in fees based on the inadequacy of preparation by solicitors in relation to a whole range of issues.

The general tone of their feedback was that ‘good solicitors’ (or litigators) were few and far between and the independent bar were having to shoulder the burden of what had traditionally been areas for solicitors.

Solicitors criticised by the Bar

The first criticism came within the context of cracked trials, where the work undertaken by more junior counsel was said to be ‘front-loaded’ in terms of the duration of a case, and ‘included litigation aspects’. A damning conclusion was offered that ‘poor quality [and] limited solicitor work was said to drive front loading’.

A second criticism relates to the time spent analysing unused material. This was traditionally a job carried out by the solicitor or litigator who would request the appropriate material and then consider it. Defence statements would be drafted by the solicitor in an attempt to secure disclosure of this additional material.

Unfortunately, last year one barrister reported ‘We’re doing solicitors’ jobs for them as well because they don’t send along their support services, and then we have to do all the returns as well. We have to email people in the middle of the night to tell them what’s been going on during the day. It’s very time consuming.’

This appears to be a widely held view as ‘barrister participants reported that previously solicitors did a thorough job examining the unused material and provided the barristers with details of the areas that they needed to look at. However increasingly, in their view due to financial pressures, solicitors were doing this less and less and leaving it to the barristers.’

Are there any good solicitors left?

The barristers surveyed were able to identify ‘good solicitors’ who still undertook this work, but they are, apparently, few and far between. In all four barrister focus groups the view was expressed that unused was not being considered by solicitors as it should be. Barristers said that ‘this was caused by solicitors being “so overburdened with work” and having so much pressure to make turnover”.

Expanding further, counsel offered this opinion – ‘[Solicitors] earn so little in the magistrates’ court that the litigators’ fees for these cases are just a sort of bounty for them. They don;t do any work on them. It’s those fees that allow them to keep their practices running, so they just punt it all off to the barristers who then have to do all the work on it.’

Unsurprisingly, solicitor participants stated that they did review unused material. It was often a key part of the case and a dereliction of their professional duties if they did not. This may be a result of only ‘good solicitors’ choosing to take part in the consultation exercise.

VHS Fletchers’ attitude to Crown Court cases has not changed. We have Crown Court preparation undertaken by dedicated Crown Court litigators, reflecting the fact that the preparation of Crown Court cases involves a particular skill set. Our litigators attend court, whether in support of independent counsel of in-house barristers of solicitor advocates.

Other local firms have adopted the same attitude, and choose to employ litigators or send solicitors in support and who properly prepare cases, whether for trial or plea.

Ministry of Justice presented with incorrect impression?

However, the reality remains that the barristers surveyed are either misrepresenting the lack of work that solicitors undertake on cases, or they are telling the truth about a significant number of firms. If it is the latter, the Ministry of Justice is getting a skewed version of the professions, but will no doubt make decisions in relation to litigator and advocates’ fees accordingly.

If the truth is that across the board solicitors and litigators are doing less then why would the Ministry of Justice pay us more? If the work we as solicitors are doing is actually reducing then why would we expect to be paid more?

It seems clear that the solicitors who take part in these focus groups are the ones that do the work expected of them and within the existing fee structure. They then take the time to attend these meetings in their own time to try and encourage proper payment for work properly done.

While one effect of consultation documents such as this may be to divide the profession, counsel may be better served complaining about the lack of work being undertaken by specific firms to the firm, Legal Aid Agency or SRA, rather than arguing for a financial benefit as a result of the inaction.

We are talking about Keres & Co aren’t we?

The behaviours explained of by counsel in these focus groups appear to very much match those highlighted by the Secret Barrister by the ‘fictional’ firm Keres & Co.

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Everybody knows a Keres & Co (or two) but it appears that nothing can be done about them. The activities aren’t picked up on peer review or Legal Aid Agency Audit. The SRA aren’t interested without ‘evidence’ and of course evidence coming from disgruntled clients (who may well have convictions) may not be particularly persuasive.

We have now, however, reached a point where not only are these firms taking work from those solicitors that will do the work, but are now affecting our ability as a profession to negotiate proper fee increased that reward a job well done. They have given the Independent Bar ammunition to use in an attempt to secure a greater share of the ever shrinking legal aid pot.

Tell the public what good solicitors should be doing for them?

Those ‘good solicitors’ left need to publicise what we do and work with counsel to publicise what should be expected of a litigator. This will allow clients a better insight into what their solicitor should be doing for them, improve the lot of the barrister, and help secure a financial settlement that is fair to both halves of the profession.

News

Criminal duty solicitors: a looming crisis

The Law Society has published data which shows a looming crisis in the numbers of criminal duty solicitors working in England and Wales right now.  In the future, many individuals will be left unable to access their right to a solicitor and free advice within a reasonable time, if at all.

Criminal duty solicitors – a dying breed?

Criminal duty solicitors like those at VHS Fletchers offer a vital public service. Any individual detained by the police has a right to a solicitor and this advice will always be free of charge under our legal aid contract with the government. This remains the case at any time of day, and regardless of wealth, age or nationality.

The mean average age of a criminal duty solicitor across the whole of England and Wales is now 47, and in many regions the average age is even higher.

The Law Society data highlights that in 5 to 10 years’ time there could be insufficient criminal duty solicitors in many regions, leaving individuals in need of legal advice unable to access justice.

This could have a catastrophic effect on the criminal justice system, as members of the profession retire and leave a shortage of experienced practitioners.  This will impact on both access to justice and on valuable police time.

One explanation for these shortages is because criminal defence solicitors have received no fee increase since 1998.  Instead, fees have been reduced and removed.  Inflation has led to a significant real terms reduction.  Combined with other cuts to the system including court closures, many lawyers no longer see a viable career doing this work.  It is difficult to attract and retain new members of the profession.

The Law Society campaign

The Law Society is therefore calling on the Government to conduct an economic review of the long-term viability of the criminal legal aid system and to guarantee that criminal legal aid fees will rise with inflation.

The full information from the Law Society including a map showing particular areas of concern, as well as a link to write to your local MP about the issue, can be found here.

criminal duty solicitors

The scope of the Government review into the criminal legal aid system can be found here.

Predictably there has already been comment from the government that there will not be a return to past fee levels.

You can sign the Law Society petition to fix the broken justice system here.

News

Football Banning Orders – When are they made?

What are football banning orders?

Football Banning Orders are a type of court order, usually made after a conviction for a ‘football related’ offence. They can last between three and ten years and will include one or more conditions which you must obey. Breach of a Football Banning Order is a criminal offence punishable by up to six months in prison.

How often are football banning orders imposed?

As at August 2018 there were 1822 Football Banning Orders in force.  This represents a fall of 6% over the previous season.

460 Football Banning Orders were imposed last season, down 57 from the previous year.

The good news for fans is that there were only 3.5 arrests for every 100 000 people who attended football matches.  Again, this is a reduction on the previous year.  Supporters of Championship clubs continued to account for the largest proportion of banning orders, with 34% of the total, or 621 orders.

What terms can be included in Football Banning Orders?

The conditions of football banning orders can include:

  • Preventing you from attending football matches at home or abroad;
  • Preventing you from going to a specific place or area for a period beginning two hours before a match starts until two hours after it finishes. In some cases this can include public transport or entire towns.
  • Surrendering your passport before international football matches.
  • Reporting at a local police station.

Exactly what conditions are made may vary depending on the facts of each case, however many Courts have ‘boilerplate’ Banning Orders- i.e. a pre-set list of ‘standard’ conditions which appear on most Orders that they make.

How could I be subject to a Football Banning Order?

Football Banning Orders were originally designed to prevent football hooliganism in the late 1980s but many supporters now finding themselves facing them, sometimes after conviction for minor offences or even where they haven’t been convicted of any offence at all. There are two possible ways to end up with one:

a)   After Conviction

The court must make a Football Banning Order if you are convicted of a ‘relevant offence’ and it is satisfied that there are reasonable grounds to believe that making a banning order would help to prevent violence or disorder. It is for the Prosecution to show that an order should be made because the offence was, in some way, football related. Relevant offences include:

  • Possession of alcohol or being drunk while entering/trying to enter ground;
  • Disorderly behaviour;
  • Any offence involving the use or threat of violence towards another person or property;
  • Any offence involving the use, carrying or possession of an offensive weapon;
  • Drunk and disorderly;
  • Driving or being in charge of a vehicle with excess alcohol, or driving or being in charge of a vehicle while unfit through drink or drugs.
  • Throwing of missiles at a football match;
  • Indecent or racialist chanting;
  • Going onto the playing area;
  • Unauthorised sale of tickets.

b)   ‘On Complaint’

The police can also apply for a Football Banning Order if an officer believes that you have (at any time) caused or contributed to any violence or disorder in the United Kingdom or elsewhere. These applications are usually based on police intelligence reports from football games. Many fans returning from EURO 2016 found themselves facing these applications despite not being charged or convicted in connection with any alleged behaviour in France.

If the court is satisfied that there are reasonable grounds to believe it would help to prevent future football-related violence or disorder, they will make a Football Banning Order.

Can I fight it?

Yes.  Just because an application is made does not mean that it will be successful.  We will provide you with advice  so that you can resist the imposition of a Football Banning Order.

I already have a Football Banning Order. Can I apply to have it removed early?

Yes. You can apply to the court after two thirds of the order length has been completed.  For example, this could be after two years of three year order. The court will consider your character, your conduct since the Order was made, the nature of the offence or conduct which led to it and any other circumstances which appear to be relevant.

Can I get Legal Aid?

football banning order legal aidIf you qualify financially, yes.

If you do not qualify for means tested criminal Legal Aid we can provide you with an affordable fixed quote.  This is so you will know in advance exactly how much our fees will be.

Contact an expert solicitor for advice about a football banning order

If you face investigation by the police, or proceedings before the Magistrates’ or Crown Court for a football related offence then you will wish to instruct a specialist solicitor.   They will be able to give you the advice and representation so that you can secure the best outcome from you.

As a result, if you are arrested or know that the police wish to speak to you about an offence then make sure you insist on your right to free and independent legal advice.

The advantages of such early legal advice can be found here.

If you have already been interviewed or face court proceedings we can still make a real difference to the outcome of your case.  Legal aid may well be available to fund your defence at court.

 You can find your nearest office here.

grievous bodily harm
VHS Fletchers offices across the East Midlands

Alternatively you can use the contact form below:

Contact

News

Distressing case before Chesterfield Magistrates’ Court

activation of a suspended sentence
Chesterfield crime solicitor Denney Lau

A recent case involving activation of a suspended sentence nearly brought Chesterfield crime solicitor Denney Lau to tears.  Despite having been qualified for 11 years and having represented any number of clients with many different circumstances before the court, this case was still able to cause distress.

Denney’ s client was appearing before the court in relation to breach of a suspended sentence order.  The starting point for breaching such an order is that the suspended sentence term must be activated.  It is possible to avoid this if the court can be satisfied that it would be unjust to do so in all of the circumstances.  As a result, Denney’s client was very much at risk of a custodial sentence.

The breach information set out that although our client’s initial compliance had been good, after several months he had simply stopped attending the appointments.  No explanation had been given.  On the face of it, our client was guilty of a complete disregard of a court order and there was unlikely to be any argument to avoid a prison sentence.

However, upon further investigation, this view of the case could not be further from the truth.

Compelling personal circumstances to avoid activation of a suspended sentence

During private consultation Denney was able to learn the full circumstances of his client’s failure to keep to the terms of the order.  His client had lost touch with the probation service following difficulties in his partner’s pregnancy.

During a routine scan, no heart beat had been detected.  Attempts were made to induce the birth.  Further complications arose and his partner had to undergo emergency surgery.

Although the baby was born, within two months our client was attending the funeral of his child.  He struggled to cope with these life changing events and had made several attempts to take his own life.

He had sought medical help and mistakenly believed that all of the professionals involved with his family would have liaised with each other so that compliance under the probation order had been suspended.  Unfortunately, the order does not work like that and it had continued.

Denney had to advise his client that despite his personal circumstances he was in breach of the suspended sentence order,  Had he spoken with the probation service they may have been understanding of his circumstances, but he had not.

It appeared, however, that the information from the client provided compelling reasons for the court to permit the order to continue.  The court agreed, having heard the mitigation, that it would be unjust to activate the suspended sentence.

The importance of instructing a criminal solicitor

This case illustrates the importance of instructing an expert criminal defence solicitor, whether you face activation of a suspended sentence or any other criminal offence.

Denney and his colleagues are used to hearing about people’s lives in great detail, whether that is by way of a police allegation or as part of a defence or mitigation.  As a result, we are experts at gathering relevant information and will have heard very similar cases many times over the years.  The horrific ordeal suffered by our client in this case still has the power to shock.

We were able to represent this client under the legal aid scheme.  This means that our representation before the Magistrates’ Court was free of charge to him.  This means that he was spared the ordeal of explaining deeply personal information to both the probation service and Magistrates.

You can read more about legal aid here.

You can contact your nearest office for an appointment to discuss your case.  Our contact details can be found here.

activation of a suspended sentence
VHS Fletchers offices across the East Midlands

Alternatively you can use the contact form below:

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News

Considering becoming a legal aid lawyer? Here is a typical week

legal aid lawyer
Chesterfield partner and crime solicitor David Gittins

Where possible, VHS Fletchers is a solicitors’ firm committed to encouraging those interested in joining the legal profession.  We welcome law students who are keen to find out what it is really like to be a criminal defence solicitor and legal aid lawyer.

Work placements can be hard to come by, but if you are local to one of our East Midlands offices then please contact us to see if we have space at one of them at a mutually convenient time.

VHS Fletchers are also keen to encourage those interested in joining the legal profession and welcome law students keen to find out what it is really like to be a Criminal Defence Solicitor. Work placements can be hard to come by so for those unable to secure a placement below is a description of Chesterfield partner and Crime Solicitor David Gittins typical week.

Monday

David was in the office early meeting Natalie the work placement student to show her the sort of work undertaken by a legal aid lawyer.  They then walked over to Chesterfield Magistrates’ Court to represent a client who in the end failed to attend.

As a result, there was a lengthy wait before a warrant was issued, but David was able to use the time preparing for a later appointment to take instructions in relation to an upcoming trial.

It appears that the tone had been set for the day, and that client failed to keep his appointment.

David also undertook some preparation for his second appointment of the day.  This again related to a forthcoming trial at Chesterfield Magistrates’ Court.

This was a particularly important appointment as the trial was listed before the court for a prosecution application to let the Magistrates’ know about his client’s previous convictions.  David had hoped to discuss the convictions in detail to help him know how best to argue against the application.

This final client of the day also failed to attend his appointment.

Tuesday (day)

David was at Chesterfield Magistrates Court again on Tuesday.  This time he was acting as court duty solicitor.  This means that he would act as a legal aid lawyer for those defendants who hadn’t instructed a specific solicitor to act for them.

When David attended court he would not know the type of cases that he would be dealing with.  In the end he represented two clients who had attended on bail and one in the cells.

He returned to court in the afternoon to complete all of the cases,  including the representation of one defendant who had pleaded guilty to drink driving.

In between cases, David was able to discuss a case for the following day that needed the input of a consultant psychiatrist due to his client having difficulties with his mental health.

At the end of the normal working day, David saw a new client at the office who had been recommended to him.  He was able to take instructions and submit a legal aid application online.

Tuesday (night)

That night David was on call as one of the lawyers staffing the firm’s out of hours police station rota to provide emergency advice and assistance to those being interviewed under caution by the police.

Although it would no doubt be preferable to interview suspects during normal working hours, the police often think it appropriate to interview at any hour of the night.

Although legal aid lawyer David only represented a single suspect during this period he travelled to Chesterfield police station at 8.45pm to represent his client who was accused of assault.

Free advice was provided and the client was released under investigation whilst the Police continued to investigate the offence.

David returned home shortly before 1 am but had to be back at his desk the following morning to complete that day’s work.

legal aid lawyer
Chesterfield police station

Wednesday (day)

David returned to Court on Wednesday morning to successfully resist the bad character application being made by the prosecution.

He also represented the client with mental health difficulties in their absence as they were not well enough to attend court.  The case was adjourned to a future date.

On returning to the office David also spoke to the client that he had represented in the police station the previous night.  Although we do not carry out family work he was able to signpost her to a family solicitor who could help with the issues arising following her arrest and release.

David returned to Chesterfield Magistrates’ Court for the afternoon session.  He represented a client who was to be sentenced for a theft allegation.  Unfortunately, due to the delays at court, this case was not called on until 4.30pm despite a bail time of 1.45pm.

Wednesday (night)

David was again involved with our out of hours rota.  He was the coordinator for the scheme, which meant that he took the emergency calls from the Duty Solicitor Call Centre, police and clients or their families resulting from arrests.

Whilst David can complete this task from home with the use of his mobile phone, calls continue throughout the night.  David deployed his colleagues to the police station at 9.30pm and a little after midnight.

A spare room is always helpful when coordinating the rota.

Thursday

David, suffering from a lack of sleep, was back at Chesterfield Magistrates’ Court at 9.30am to represent a client who had previously pleaded guilty to assaulting his partner.  David successfully argued for a community order.

The rest of the day was spent by David completing work arising from cases he had dealt with that week and preparing files for future court dates.

Friday

David was again court duty solicitor at Chesterfield Magistrates’ Court.  He dealt with a client who faced an allegation of unlawful possession of a firearm.

Saturday

Magistrates’ Courts across the country also sit on a Saturday morning to deal with defendants who have been refused bail by the police.  Again we provide representation at these courts as part of our out of hours emergency rota.

David was represented two clients before Nottingham Magistrates’ Court.  The first client faced a very serious allegation of possession with intent to supply cannabis as part of an organised crime gang.  This client was remanded into custody having insufficient community ties to ensure attendance at future court dates for such a serious offence.  David was assisted by a Lithuanian interpreter in this case.

The second case was at the other end of the spectrum in terms of seriousness, although it was serious to his client.  David’s other client was simply charged with shop theft.  However, what should have been a simple matter was delayed by the police as the client was not brought through to the cells until his methadone could be located, leading to a wait of several hours.

Considering becoming a legal aid lawyer?

We are currently advertising for the post of trainee solicitor at our Chesterfield office.

There are plenty of articles on our website that show you the kind of work that you will undertake both before and after qualification.

Read more in our news section.

A legal aid lawyer will only gain the experience necessary to provide expert advice in the field of criminal law by being part of a busy practise.  We can offer that experience.

We look forward to hearing from you with either your request for work experience or application to be a trainee solicitor.

News

Amending the Advocates’ Graduated Fee Scheme

We have prepared our response to the latest Government consultation on legal aid funding entitled Amending the Advocates’ Graduated Fee Scheme.  This time the Ministry of Justice wishes assistance on how to spend what is described as £15m of ‘new’ money on fee payments for those undertaking Crown Court advocacy.

It is optimistically hoped that the proposed fee scheme will attract suitable candidates to both the Bar and solicitors’ profession.

Unfortunately it seems unlikely that these proposals address these aspirations once the fee structure is looked at in detail.

For example, this view expressed within the consultation document is in conflict with the aim of properly funding those entering the profession.

Surely this paragraph ought to be acknowledging the damage to the junior end of the profession by choosing this as a priority?  Instead it trumpets redistribution of existing funds to the cases that more senior counsel undertake?

We wonder if anyone involved in the initial negotiation, particularly the Young Barristers Committee, is regretting expressing this opinion by now?

The consultation document seems to express a genuine interest in the views of the profession.   As a result there may be every reason to engage with the consultation.  It is hoped that organisations such as the Law Society, CLSA and SAHCA will be making strong arguments on behalf of the solicitors’ profession as a whole and preparing responses detailing the realities of the fee cuts.

Having said that, we also approach the consultation with a certain amount of cynicism.  The last two substantial consultations have resulted in Judicial Review proceedings when the government ignored the opinions proffered.

The Ministry has pledged a review of the current scheme.  It is hope that this isn’t the same level of commitment that the government has shown in relation to its review of LASPO.  We still wait for that to be concluded while people continue to be excluded from the legal aid scheme.

We have a number of concerns about the fee scheme in its entirety.  If fails to reward those at the beginning of their careers and then penalises specialist advocates later in their career who deal with complex cases with a high page count.

It represents a significant cut in fees for many types of case and will not assist with in preserving the future of criminal advocacy.

Our response to the consultation on amending the Advocates’ Graduated Fee Scheme

The Law Society response can be found here.

The Criminal Bar Association response can be found here.

News

Nationwide legal advice and representation from our Chesterfield office

While many will have spent the summer having holidays and day trips out with the family, our solicitors and police station representatives at our Chesterfield office have been taking their own day trips out of the town to provide legal advice and representation.

Unfortunately, these have not been to the seaside to enjoy an ice cream but to ensure that our clients who live local to Chesterfield receive advice and representation from lawyers that they know and trust.  We often a nationwide service at both the police station and courts.

 

Countrywide legal advice and representation

The following are amongst the places recently visited by staff from our Chesterfield offices:

  • Buxton Police Station
  • Harrogate Police Station
  • York Magistrates Court
  • Manchester Magistrates Court
  • Staines Magistrates Court
  • Sheffield Magistrates’ Court
  • Boston Magistrates Court
  • Lincoln Crown Court

All of our Clients involved in the police investigations or cases before these courts had links to the Chesterfield area.

Their first priority was to have a solicitor local to them for ease of providing instructions rather than local to the police station or court they had to attend.  They wished VHS Fletchers solicitors to deal with their case on the basis of previous dealings with our expert criminal solicitors or because they had been referred to us.

It was important to them to have a solicitor or accredited police station representative that they could trust.

When we were contacted by these clients we were only too happy to travel to provide them with the service that they wished.  Our clients faced a range of offences, including

  • assault
  • theft
  • criminal damage
  • breach of court orders

Advice on your case under the legal aid scheme

As we have a contract with the government to permit us to provide expert legal advice and representation under the legal aid scheme.  This means that our advice in the police station will always be free of charge to you in the police station.

There are many advantages to seeking advice in the police station and you can read about those here.

Many of our clients will be also be entitled to legal aid in the Magistrates’ Court.   Nearly all will be eligible for legal aid to ensure representation for cases before the Crown Court.

You can read more about these types of legal aid here.

In the cases at the police station or the courts set out above, all of our clients had the benefit of free legal advice.

chesterfield legal advice and representation

Instruct criminal defence solicitors who will go the extra mile for you

You may choose your solicitor by reputation.  You might want to choose a solicitor with an office near to where you live, no matter where your case will be heard.

If you require the assistance of a firm of expert criminal defence solicitors who are more than happy to travel to provide you with nationwide criminal advice and representation, then look no further than VHS Fletchers.

We will go that extra mile (or if need be the hundreds of extra miles) needed to ensure that you get the best outcome possible.

Read more about the benefits of instructing our solicitors and litigators here.

You can contact our Chesterfield office for emergency advice day or night, 365 days a year on 01246 387999.

Alternatively you can use the form below.

chesterfield legal advice and representation

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News

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.

 

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.

VHS Fletchers offices across the East Midlands
News

Consent and Sexual Offences

It would be thought that in relation to sexual offences and the issue of consent the issue should be straight forward – yes or no?

As always, life and the law are more complicated than that.  The issue of consent is, unfortunately, not so simple.

What is consent?

 A person consents if she or he agrees by choice and has the freedom and capacity to make that choice.

 

Can a drunk person give consent?

Yes, drunken consent is still consent.  However, this is where problems can arise. If a person loses their capacity to choose through drink then he or she is not consenting.

Where a person is consenting is frequently the issue in many rape cases.  As a result it is often one word against another.

The Courts have given the following guidance as to the issues to focus upon:

  1. Did sexual intercourse take place?
  2. Did the complainant consent to sexual intercourse?
  3. Did the complainant have the freedom and capacity to consent?
  4. Did the defendant reasonably believe that the complainant was consenting? This consideration will not apply in all cases.

Who decides?

 At trial, it will be for the jury to determine issues of capacity and consent having heard all of the evidence.

How do you prove consent?

In the absence of something in writing, and even then, there could be doubts  A jury will have to decide the issue having heard all of the evidence.

In some cases, it is not enough for a defendant to simply say that he or she believed the other person was consenting.  There must be evidence that he or she had a reasonable belief that there was consent. This would include considering any steps taken by the defendant to ascertain the complainant was consenting.

The situation could also arise where consent is given on condition, for example, that a condom is used. If one is not used, then the “consent” may no longer provide a defence.

There have also been cases where a female has pretended to be a male and had intercourse on that basis. The defendant was guilty because the complainant said that she would not have consented if she had known that the defendant was female.

How can we help?

This article is a brief analysis of potential issues, as you can see this is an area that would require careful assessment and expert advice.

The problem with many alleged sexual offences is that they require a jury to examine intimate factual scenarios, often clouded by drink or drugs, where there is seldom any independent evidence to assist one way or the other.

 

It is our job to present the strongest case possible.  You can read more about how we will prepare your case fro trial here.

To ensure that your defence is properly advanced from the start, you will want to take advantage of our free and independent legal advice in the police station.  The advice is free to you no matter what your income.  You can read about the advantages of early advice here.

Sexual offences are likely to be heard before the Crown Court.  We will always advise you as to your entitlement to legal aid to ensure affordable representation at trial.  You can read more about Crown Court legal aid here.

We provide nationwide representation from our offices across the East Midlands.  You can find your nearest office here.  Alternatively you can use the contact form below.

Contact

consent sexual offences

News

Justice Committee Report on Criminal Legal Aid

A recent report from the House of Commons Justice Committee entitled “Criminal Legal Aid” has made the following observations and recommendations after hearing evidence across a wide range of issues.  The conclusions are below.

justice committee criminal legal aid

Recent changes to the LGFS

  1. The evidence we have received suggests that solicitors have serious grievances about the Litigators’ Graduated Fee Scheme, given the absence of index linking for two decades, the 8.75% cut in fees imposed in 2014, and the recent reduction to the cap on pages of prosecution evidence.
  2. The Law Society’s judicial review of the Government’s decision to revise the LGFS means that it would not be appropriate for us to offer comment on the details of the scheme at this point in time. However, we have received evidence indicating a worryingly high level of demoralisation among criminal defence solicitors and threats to the economic sustainability of criminal defence firms, with negative implications for the criminal justice system—especially for defendants. We return to this issue below.
  3. We consider it regrettable that the Law Society has had to resort to bringing a judicial review to pursue its grievances about the LGFS. We recommend that the Ministry of Justice take urgent steps to avoid this dispute having to be resolved by the courts. Whatever the outcome of the judicial review, we consider there should be a wider review of criminal legal aid.

Recent changes to the AGFs

  1. We consider it regrettable that the Criminal Bar felt compelled to take direct action in response to the new Advocates’ Graduated Fee Scheme, given the potential for adverse impact on defendants and complainants, as well as on the functioning of the courts. However, the underlying reasons for the dispute can be understood, including the failure to ensure that fees keep pace with inflation, the staged fee reductions from April 2010 onwards, unhappiness about aspects of the revised AGFS and the Criminal Bar’s genuine and heartfelt concerns about the future of their profession and under-funding of the criminal justice system.
  2. While we welcome the Government’s decision to offer additional funding for the AGFS and the Criminal Bar’s decision to accept the offer, we do not believe that ending this specific dispute has resolved the underlying issues and it is clear that many barristers remain deeply unhappy about their situation and about the future of the criminal justice system.
  3. We acknowledge the challenges facing the Ministry of Justice in reworking the AGFS so that it is fair to advocates at all levels of seniority, and in ensuring that it is future-proofed against inevitable changes in the profile of Crown Court cases. We also recognise that the Ministry of Justice has made genuine efforts to address the concerns of the Criminal Bar. To provide for ongoing collaboration with the legal profession on refinements to the AGFS, we recommend that, without any further delay, a system of annual review be built into the AGFS, overseen by a panel which incorporates representatives from the Criminal Bar and solicitor organisations, Criminal Legal Aid 39 alongside Government representatives. The panel’s remit should include considering the inter-dependency between the AGFS and the LGFS, and the impact of changing the former on the operation of the latter.

Expenditure on criminal legal aid

  1. As we have observed, there is a common law right to legal advice, together with a right to legal representation for an accused person under Article 6 of the European Convention on Human Rights. We conclude that there is compelling evidence of the fragility of the Criminal Bar and criminal defence solicitors’ firms placing these rights at risk; we conclude that this risk can no longer be ignored.
  2. We also conclude that current difficulties in recruitment to the Criminal Bar could potentially have a negative impact on future recruitment to, and diversity within, the judiciary—in particular for judicial office holders in the criminal courts.
  3. Given these risks, we welcome the decision of the Ministry of Justice to consider legal aid for criminal law within the LASPO post-implementation review, as a first step in understanding the crisis that criminal legal aid is facing. We recommend that the output from this workstream be used to underpin a comprehensive and independent review of criminal legal aid, with the aim of devising a scheme that is sustainable and user-focussed; the review should adopt a similar approach to that of the recent independent review in Scotland. This review should be launched no later than March 2019 and should be concluded within 12 months.

Declining expenditure on the Criminal Justice System

  1. An effective criminal justice system which successfully prosecutes those who commit crime but which also protects the innocence of the accused unless the prosecution can prove their guilt is one of the pillars on which the rule of law is built. The effectiveness of the system also demands that the fabric of the criminal courts is properly maintained. We conclude that the under-funding of the criminal justice system in England and Wales threatens its effectiveness, and in doing so undermines the rule of law and tarnishes the reputation of the justice system as a whole.
  2. Our justice system is widely admired and the UK is a jurisdiction of choice for many individuals and corporate bodies that need to resolve disputes; nonetheless, it faces competition from other jurisdictions. We conclude that the under-resourcing of the criminal justice system undermines the prospects of successfully promoting our legal system abroad, a stated objective of the Government.
  3. We recommend that that the Government conduct an urgent cross-departmental review of funding for all elements of the criminal justice system, including criminal legal aid and the Crown Prosecution Service, with the aim of restoring resources to a level that enables the system to operate effectively; the details of this review should be published in advance and its timetable must ensure completion in time to influence the conclusions of the 2019 Spending Review.

Criminal Legal Aid Disclosure of unused material

  1. We conclude that the pressure placed on defence lawyers to fulfil their professional obligations by reviewing unused prosecution material without remuneration is fundamentally unfair and—with the continual increase in the amount of such material—likely to become unsustainable, and increasingly prejudicial to the defendant. We recommend that restoring legal aid payments for reviewing unused material above a certain page threshold be considered as part of the comprehensive and independent review of criminal legal aid that we have recommended above.

The link to the full justice committee report can be found here.