The legal aid payment scheme for very high-cost criminal cases will hit lawyers in the pocket and limit access to justice, writes David Farrer QC

Following a limited trial and little worthwhile consultation, the Legal Services Commission (LSC) introduced a legal aid payment scheme for very high-cost criminal cases on 1 April.

The great majority of the criminal bar, following informal discussions, decided not to sign contracts.

The consequences were almost immediately apparent.

Representation for defendants in such cases became difficult, sometimes impossible to obtain.

The Lord Chancellor then decided to reopen negotiations with the Bar Council, at least ostensibly unconditionally.

Negotiations have begun and are scheduled to conclude before the end of May.

The Department for Constitutional Affairs refuses to suspend the operation of the scheme during negotiations.

The Bar Council chairman has invited practitioners to consider working on a pro bono basis on such cases in the interim without commitment beyond May 2004.

Why has the criminal bar reacted with such uncharacteristic resolution? Given the undoubted threat to the smooth running of the criminal justice system, is such a stance justified?

The first point to make is that this is not a strike, since nobody is under any contractual obligation to sign up to anything.

The cab rank rule does not apply.

The government, itself effectively a demand monopoly, refers to the market.

When bar representatives protested some time ago at the terms to be imposed, they were told that the LSC would 'test the market', apparently confident of a docile response.

Of course, rates of pay are an issue.

Why should experienced counsel work for less than the legal executive or trainee is earning for his instructing law firm, let alone the rates paid to accountants or doctors who are expert witnesses?

Far more fundamental, however, in the view of many of us, is the crippling blow that the present scheme inflicts on defendants' basic human right to proper representation.

The overriding aim in the civil servants' minds as they have drafted the new rules seems to have been the removal of any duplication at all in the preparation of cases.

The bar is excluded from the initial allocation of preparatory work.

The case manager, almost certainly free from the inhibitions imposed by any practical experience of defending complex cases, then prescribes how much preparation is needed.

His consent must be obtained if further unforeseen work is needed, often as a result of judicial request during the trial.

Counsel are routinely excluded from viewing the unused material if that task is allocated to an employee of the solicitor's firm who probably will not attend the trial.

In a recent fraud case, prosecuting counsel had to draw the attention of the defence silk to material highly damaging to the credibility of an important prosecution witness because the latter was unaware of its existence.

There has been at least one instance of the defence leader being prevented from reading all the evidence.

No self-respecting professional would work under such constraints.

More importantly, the risks of inadequate representation and serious injustice are obvious.

Sensible barristers do not want unnecessary duplication of work.

We recognise the need to control costs in these cases, but this is not the way to set about it.

Skimping preparation produces neither justice nor, in the long run, economy.

Temporary disruption of the court programme may be a small price to pay for proper representation.

David Farrer QC is head of chambers at 7 Bedford Row in London