The Sentencing and Punishment of Offenders Act 2012 (LASPO), which came into force on 01 October 2012 made significant changes to the system through which successful defendants and appellants in criminal proceedings may recover their legal costs. Amendments to legislation gives the Magistrates Court the power to cap the amount of ‘legal costs’ a defendant can recover, meaning in most circumstances only a proportion of legal costs incurred by a private individual can be recovered. In relation to Crown Court proceedings, legal costs cannot be included in a defendant’s costs order.
Faced with the prospect of unrecoverable legal costs, more defendants are using legal aid suppliers. The current proposals via the government now add further insult to injury by the removal of client choice in legal aid cases.
The Ministry of Justice (MoJ) will publish a second “short” consultation on its finalised legal aid proposals in September. The initial consultation paper “Transforming Legal Aid” has been the cause of much unrest among legal aid lawyers. A key element of the proposal is the removal of the client’s choice, which the Law Society of England and Wales has deemed “unlawful”.
Under the government plans, defendants will no longer be able to choose a specialist lawyer to act on their behalf – for example, a firearms specialist dealing with complex areas of law. Instead, they will be allocated a legal aid lawyer (or supplier) who, because of the way the contracts will be distributed, may be based miles away, have limited knowledge of firearms laws and, under the pay proposals, may have a strong imperative to do as little work as possible or seek to persuade the client to plead guilty irrespective of the merits of their case.
It is acknowledged that there is a need for savings and for greater efficiency within the criminal legal aid system, but is price competitive tendering (PCT) the answer?
The proposal included measures to cut a further £220m from the £1bn annual budget for criminal legal aid. Contracts for criminal defence work would be auctioned off to individual organisations, such as partnerships, legal disciplinary practices, joint ventures or alternative business structures including companies like G4S and Tesco. Those firms lucky enough to secure a contract will be few and far between as the government plans to reduce the number of suppliers from around 1,600 to 400.
Initially, lord chancellor Chris Grayling tried to defend the removal of client choice by saying that restricting client choice was necessary to guarantee volumes of legal work. It is suggested that clients will be allocated to a local supplier based on their date of birth or, as ridiculous as it may sound, based on their star sign. A further objection came from the realisation that each supplier is required to act for a defendant until the case is concluded. If the defendant is arrested in more than one procurement area, this could involve more than one supplier acting for any one defendant at the same time. It is difficult to see how this will lead will to any concrete savings.
These proposals have generated a wealth of criticism, in particular from existing legal aid lawyers whose main concerns are that the changes will put profit rather than justice at the heart of legal aid, especially as lawyers will be paid the same fee regardless of a guilty or not guilty plea.
In response to the significant feedback, the justice secretary has agreed to retain client choice and has indicated he is open to alternative proposals that meet the same core objectives including delivering the same level of savings. Anyone can find themselves requiring legal advice from a legal aid solicitor. Without the choice to instruct a specialist lawyer, you run the risk of being convicted, losing your livelihood and potentially your liberty.
The Ministry of Justice welcomes submissions on its proposals at https://consult.justice.gov.uk/ digital-communications/transforming-legal-aid. There is also an e-petition which remains open for signatures at https://e-petitions.direct.gov.uk/petitions/48628.