After years of cuts and ‘stealth’ erosion, moves to slash almost a third from rates in very high-cost cases (VHCC) herald the death knell for effective defence representation in such cases – denying to individuals in serious and complex investigations access to justice.
The government is relentlessly pushing forward with further cuts to criminal legal aid proposed in the ‘Transforming Legal Aid’ consultation. While VHCCs are to be exempt from price-competitive tendering (PCT), they suffer a 30% cut in already reduced rates. This will no doubt be welcomed by the public, who are treated to a feast of stories in the press about ‘super-rich criminals’ claiming legal aid and ‘fat-cat lawyers milking the system’. Serious miscarriages of justice are set to increase substantially if these reforms go ahead.
While all will agree that we need an efficient legal system, the reality of the cuts is masked from the public, leaving the individuals involved in these cases potentially prejudiced because it is now impossible to offer an effective defence service funded by legal aid.
While years of rate reductions have been openly publicised, what the public and many in the profession are not aware of is the erosion by stealth of time allocated for defence teams to prepare cases. Lawyers outside criminal practice may not be familiar with the fact that these cases fall under a separate contracting regime. Every second spent on them has to be agreed in advance with a Legal Services Commission contract manager.
As with all assessed cases, the test of time allowed for fee-earners is that of ‘reasonableness’. However, we are now in the ludicrous situation where we are literally granted a few seconds to read each page of evidence as we mount a defence in some of the most complex cases.
In the face of huge cuts in rates and time, the present interpretation of the word ‘reasonable’ leads us to two possible conclusions. Criminal practitioners are far brighter and more efficient than any other breed of lawyer on the planet. Or we have entered a surreal ‘Alice in legal-land’ scenario where anything is possible.
VHCCs are remunerated depending on which category they fall into. The categories range from 1 to 4. The majority of VHCCs, which are usually complex fraud cases such as alleged mortgage frauds, misleading accounts, fraud by abuse of position, large tax evasion cases and duty evasion cases, are classed as category 3.
These cases usually have tens of thousands of pages of evidence and multiples more of unused material. The bulk of work is carried out by grade B fee-earners, who are solicitors or legal executives experienced in this work. The present rate for their preparation is £79 per hour. Under the new proposals that figure is reduced to £55.
The time allowed on a VHCC is allocated on a ‘seconds per page’ basis by case managers. Recent years have seen that time reduced from around one minute per page to 30 seconds, to the present situation where the time offered is sometimes a few seconds. Defence teams have recently been offered under 15 seconds to read each page of material – and this does not take into account that the document has to be opened and closed on a computer. It takes a minute at the very least to read a page and consider, note and cross-reference the material.
The inference that contract managers have been put under ‘political’ pressure to reduce time allowed for defence teams to consider prosecution evidence is difficult to resist.
Taken as a whole, the future is bleak for justice. Important evidential issues and points of defence are more likely to be missed in very large and complex cases. The ability to defend clients properly in the more serious and complex cases will be adversely affected. And yet, obscured by the ‘fat-cat’ lawyers tag, this will go largely unnoticed by the public. That is until they have to call on a system that is broken.
Anthony Barnfather is head of the regulatory team at Pannone