Criminal law

By Anthony Edwards, TV Edwards, London

Legal AidA series of regulations made under the Legal Aid Act 1988 have recently been brought into effect.

All solicitors are now required to give notice to the Legal Services Commission if they have begun a high-cost case on or after 1 August.

This is any case which may last more than 25 days at trial or involves total costs inclusive of the costs of solicitor, advocate, disbursements and VAT of 150,000.

There will be no immediate consequences, as at this stage the commission cannot oblige a solicitor to enter into an individual case contract.

The position will begin to alter however, on the 2 April, 2001.

Subject to negotiations on price many solicitors may welcome the opportunity to begin to work with the new systems and in particular the need for case plans allowing regular cash flow payments against evidence of the completion of the identified work.

On 1 September 2000 a new reg 48 was introduced into the Legal Aid in Criminal and Care Procedures (General) Regulations 1989.

It significantly limits the ability of the court to appoint a silk alone as the only advocate in the case or to appoint more than one advocate in any case.

The criteria are complex and will need detailed consideration.

Solicitors will need to remember that there is a continuing obligation to keep the level of representation under review so that if circumstances change the court must be advised and the necessary amendments made.

On 2 October 2000 significant changes were made in the rules about legal aid contributions.

Ahead of the coming into force of the Access to Justice Act 2000 (which will introduce a different regime) the grant of legal aid in all the youth court matters has now become merits only provided that the legal aid application was made on or after the 2 October.

In the adult courts an application is merits provided that each of the three following conditions are met:l The defendant was charged to the police station.l There is no indictable-only offence.l The matter is considered by the magistrates court.It is not normally possible for solicitors to recover the costs of researching the law.

However, this is not the case (R v Perry) where the law being researched is new, developing or unusual.

The Lord Chancellor's Department has recently issued instructions to Determining Officers which will be applied also by the Legal Services Commission that research into the impact of the Human Rights Act and in particular into decisions of the European court of Human Rights will fall into the definition of new and developing law.

Clearly, this cannot continue permanently, but will be the case for many months as solicitors adjust to the new position.