Committal fee cut ‘leaves defendants unrepresented’
Defendants are being left unrepresented in magistrates’ courts following the government’s scrapping of lawyers’ fees for committal proceedings in either-way offences, the Law Society told the High Court this week.
Lord Justice Burnton and Mr Justice Treacy heard the Society’s legal challenge to the lawfulness of the decision to remove the £318 fixed fees for committal proceedings in either-way cases.
The change came into force on 3 October 2011, since when solicitors have not been paid for work done in the magistrates’ court in either-way offences that are sent for trial to the Crown court. Such work may involve attending court on two or three occasions, to deal with bail, plea and mode of trial.
Giving an indication of the impact that the cut would have on firms, Sam Grodzinski QC of London’s Matrix Chambers told the court that a litigator would be paid £386 for an average two-day burglary trial dealt with in the Crown court.
Under the old regime, they would also have received £318 for the work done in the magistrates’ court. The removal of that committal fee, he said, represented a cut of almost 50%.
For the Society, Grodzinski argued that the government’s decision to cut the fee was ultra vires because it removed the obligation on the Legal Services Commission to fund the representation of a person granted a representation order, and meant that solicitors were being required to work for no payment.
He said that the change would encourage solicitors to advise their clients to plead guilty earlier, or accept summary trial. That improper purpose, said Grodzinski, was unlawful.
In addition the Society claimed the fee cut was irrational because the Lord Chancellor had failed to take account of the fact that, following abolition of the committal fee, solicitors facing multiple legal aid cuts would decline to take on unremunerated committal proceedings, and there would be a surge in the number of defendants who were unrepresented.
The Society said that the absence of remuneration for committal proceedings was incompatible with Article 6 of the European Convention on Human Rights since it creates the risk that defendants will be unable to obtain representation at the crucial early stages of criminal proceedings.
It also claimed that the Lord Chancellor had failed in his duty under the Equality Act, by failing to analyse the impact on defendants facing criminal proceedings who have communication or cognitive difficulties and who may, if unrepresented at the magistrates’ court, be in a worse position than those defendants without such disabilities.
In its submissions the Law Society noted the reductions in the fees paid to criminal solicitors and barristers doing legal aid work over recent years. It suggested that the cut creates a ‘real risk’ that solicitors would decide that they can no longer afford to represent defendants in committal proceedings in the magistrates without being paid to do so.
Chancery Lane also submitted a report from law firm management consultant Andrew Otterburn on the impact of legal aid cuts. Otterburn’s survey of 163 firms showed that average profit margin of 7% would fall to an average loss of 26% as a result of the cuts. At the 15 participating firms for which crime represents over 75% of fees, average profit margins would drop from 12% to 5%.
The report concludes that an important group of suppliers fulfilling the LSC’s statutory obligation to provide a criminal defence service is at risk.
The Law Society said it was still too early to gauge the full impact of the change on magistrates’ court representation, but noted the findings of a survey by the Lord Chancellor of court staff on 16 January 2012. It showed that four courts had reported the number of unrepresented defendants increasing by 20% to 50% or more, while four courts had reported an increase of between 5% and 20%. Other courts reported that they expected to see an increase.
Law Society research indicated that a significant number of firms had, since 3 October 2011, stopped acting under representation orders in committal proceedings while others were selective about the cases they attended, or were prepared to carry on acting for a limited time.
In a witness statement in support of the challenge, the Society’s head of legal aid Richard Miller said: ‘There are already reports of increasing numbers of unrepresented defendants and consequent delays, both by reason of adjournments and because court lists are taking longer. There is also a widespread expectation of delays as cases reach the Crown court without full preparation pre-committal.’
He concluded: ‘The very clear message that the Society is receiving is that these problems will increase as the financial reality of these changes feeds in to solicitors’ remuneration and they are forced to stop undertaking this work in greater numbers.’
Responding for the Ministry of Justice, James Eady QC of London’s Blackstone Chambers told the court that the abolition of the fee was expected to save approximately £25m, which he said represented a reduction of around 3% in average fee income for criminal litigators - a figure that Burton said was ‘misleading’.
He said the cut was part of a suite of reforms to criminal fees, and that following analysis, the Lord Chancellor had concluded was sustainable and would leave a sufficient supply of providers of sufficient quality. He denied all the contentions of the Law Society, in particular asserting that the abolition of the fee has had a ‘limited’ impact in a minority of areas.
Eady contested that solicitors would be working for nothing: they would continue to receive a fee for the whole case including the committal work, however that fee would fall by £318.
Treacy acknowledged that removing the committal fee was part of a series of cuts, but said that there must come a point when there is no more fat to cut. He asked: ‘Where is the analysis that concludes that you can act without cutting into the bone?’
The Society is seeking the quashing of the decision to remove the fee. If the action succeeds those solicitors who have attended committal proceedings for cases granted representation orders since 3 October 2011 will be paid for doing so.
At the end of the two-day hearing, judgment was reserved.