The litigator graduated fee scheme was introduced solely to cut costs and defence firms are struggling to cope, alleges John Storer


Criminal Defence Service director Derek Hill's letter about the litigator graduated fee scheme (LGFS) (see [2008] Gazette, 15 May, 11) is just another example of the Legal Services Commission's (LSC) increasing use of 'spin' in trying to justify a further decrease in available funding for criminal defence matters. He trumpets that a firm could earn £1,000 if a robbery case goes to a one-day trial. No mention is made of the many hours of work that a solicitor's firm must do to get a case to a one-day trial.



A robbery case starts life in the magistrates' court, where it will be sent to the Crown Court for trial under section 51 of the Crime and Disorder Act 1998. We are in a rural location. There is every possibility that the defendant will be in custody and, though arrested in our local area, taken to a court anywhere between 16 and 32 miles away from our office. Say we spend an hour travelling on the case, 30 minutes perusing the disclosure, an hour with the client, 12 minutes discussing bail with the prosecutor, an hour waiting to get into court, and an hour of advocacy making a bail application - the solicitor's costs at legal aid rates have already amounted to almost £200, and we have not yet started preparing the case for the Crown Court.



In fact, £1,000 is roughly equivalent to 21 hours' work by a grade B fee-earner. We are being paid to do 21 hours' work for an offence for which the defendant could receive life imprisonment.



Mr Hill does not mention in his letter that there is no additional fee for perusing unused material. A bundle of unused material of 150 pages (again, not unusual in a case going to trial) could account for five of the 20 hours the LSC has kindly allocated to us to prepare this defendant's trial. Every criminal defence lawyer knows the importance of careful perusal of unused material - indeed, within the past two years we have had a client acquitted of a double murder as a result of information we found in the unused material. Unfortunately, it would appear the LSC does not recognise its importance and thus has not included it as 'pages of evidence'.



Having completed the case, and a community order or suspended sentence order having been imposed, we are then supposed to deal with any breach for no extra fee whatsoever. Mr Hill says this is not a problem because we are familiar with the case and can deal with it quickly and efficiently. Strangely enough, most criminal defence firms have more than one client. The file will have to be taken out of storage and read to refresh the memory. Instructions regarding the history of compliance and details of the alleged breach need to be taken from the client. Advice needs to be given as to whether the breach should be admitted and then instructions have to be prepared for the advocate.



All of this to come out of the 21 hours being paid for when we took the case initially. The temptation will be, of course, to tell the client we are too busy to represent him on the breach and send him elsewhere.



You are not paying us a fortune, Mr Hill. The LGFS was brought in for one reason only - to cut costs. Once again it is the criminal defence solicitor who bears the brunt of those savings. At a time when business overheads are rising faster than for many years, every criminal defence firm in the country is seeing a major cut in its income from Crown Court work. It is becoming impossible to maintain the level of client care that most criminal defence firms once prided themselves on, and it is the defendants facing the most serious charges that are going to suffer. Please save your 'spin' for the readers of tabloids, who may well believe you are spoiling us 'fat cat' criminal lawyers. Do not insult our intelligence by trying to persuade us that you have done us all a favour by introducing LGFS.



John Storer is a partner at Criminal Defence Associates in Boston, Lincs