The attorney general is considering intervening to appoint an amicus curiae to assist the court on legal arguments expected to be made on behalf of defendants facing trial without representation in court, the Gazette can reveal.
A spokeswoman for Dominic Grieve QC confirmed that the request for an amicus curiae has been made by a judge hearing one of the seven serious cases that have been left without counsel for publicly funded defendants following cuts in fees introduced in December.
The spokeswoman said Grieve (pictured) is considering the matter.
An amicus curiae, or friend of the court, is someone who is not a party to the case, but who has a strong interest in it and puts forward to the court points of law on the issues involved, usually where they raise matters of public interest.
The judge requested the intervention to ensure equality of arms between the prosecuting authority, the Financial Conduct Authority (FCA), and the defendants who, although represented by solicitors, do not have counsel to advise or represent them.
The barristers who had been instructed returned the briefs following the 30% fee cut introduced in December, and the subsequent down-grading of the case by the Legal Aid Agency.
The judge said he has asked the attorney general to intervene, because the FCA is answerable to the Treasury rather than the attorney, and, he suggested, has a ‘legitimate interest’ in the issue of proper representation.
The intervention could be highly embarrassing for the Ministry of Justice, which is due to publish the final plans for its reforms to criminal legal aid this week.
The government's proposals to cut fees and restructure the defence market have been widely criticised by lawyers, who claim they will reduce standards and increase the risk of miscarriages of justice, without achieving the £220m savings the ministry says it is seeking.
The full scale of the problems being caused by cuts of 30% in legal aid payments to solicitors and barristers in the most serious criminal cases is starting to emerge as trial dates loom.
The solicitor in another very high cost case, whose publicly funded client is one of four in a six-handed fraud trial not represented by counsel, has written to the FCA, which is prosecuting the case, asking it to indemnify his firm against the costs of his client’s defence.
Trevor Francis, managing partner at London firm Blackfords, sent the letter following the prosecutor's suggestion that the unrepresented defendants seek representation from the Public Defender Service (PDS) – a small state-funded outfit run by the LAA to appoint counsel for defendants.
In the letter seen by the Gazette, the solicitor said the courts and lawyers are in ‘uncharted territory’.
Francis suggested that as the case is being brought by the banking and financial sector’s regulator against individuals who at the time of the alleged wrongdoing were employees of the banking and financial sector, the FCA, rather than the taxpayer, should be responsible for funding the case.
He said the FCA could consider indemnifying the firm for costs to enable the firm to adequately conduct the case with appropriately experienced silk and junior counsel of the client’s choosing.
Francis told the Gazette he is ‘incredulous’ that the prosecutor should suggest the defendants consider approaching the PDS for representation.
‘Retaining the right of defendants to choose their legal team is one of the only concessions made by the justice secretary Chris Grayling in the legal aid reforms.
‘I’m not instructed by my client to contact the PDS – my client doesn’t want an agent of the state to represent him. It’s as simple as that – in an adversarial system those bringing the charges do not get to choose who represents both sides,’ he said.
The PDS currently employs three silks and seven solicitor-advocates. A recruitment exercise for the service ended last week, but the MoJ declined to say how many applications had been received.
A day of protest action, supported by solicitors and barristers, will be held on 7 March in protest against the cuts. Lawyers will stage a rally at Westminster and then march to the MoJ.
In a related development, The Law Society Council yesterday held an emergency meeting to inform its response to the MoJ's final announcement on criminal legal aid.
By an overwhelming majority, Chancery Lane's governing body passed the following resolution: ‘The Law Society remains strongly opposed to the proposed fee cuts. It continues to have very grave concerns about the lord chancellor's proposal to adopt a two-tier structure for general and duty contracts.
‘In particular the Law Society questions that approach as well as the impact of those changes on access to justice and on the effective defence of innocent and vulnerable citizens, as well as the impact on diversity within the profession and the need to meet regulatory objectives.
‘The Law Society should continue to engage with the MoJ to ensure access to justice is maintained, and the diversity of the supplier base. The Society should continue to press for early release of the Otterburn and KPMG reports to the profession. The Society reserves the right to disengage, dependent on the outcomes of negotiation.
‘The Law Society calls upon the lord chancellor to commission and publish an equality impact assessment on his proposed changes prior to implementation of the same.
‘In the event that the lord chancellor's proposals proceed, the Law Society will press the MoJ to work with the Society to develop a support package, and commission and publish, before any further cuts in legal aid rates, an impact assessment of the initial cuts and other changes on the working of the criminal justice system and defence solicitor practitioners.'