WSN Policy Briefing on Consultation Document: Review of the Legal Aid for Crown Court Proceedings (Costs) Rules (Northern Ireland) 2005, as amended

Transcription

1 WSN Policy Briefing on Consultation Document: Review of the Legal Aid for Crown Court Proceedings (Costs) Rules (Northern Ireland) 2005, as amended This document outlines an ongoing consultation exercise from the Department of Justice for Northern Ireland (hereafter, DOJNI) in respect of proposed changes to legal aid for Crown Court proceedings in NI (i.e. reductions to the remuneration levels for solicitors and counsel engaged in legal aided cases in the Crown Court). 1. Purpose of consultation: the consultation document reviews, and sets out proposed alternatives to, the current statutory provision governing Crown Court legal aid in NI namely, the Legal Aid for Crown Court Proceedings (Costs) Rules (Northern Ireland) 2005, as amended (hereafter, the 2005 Rules). The rationale underlying the proposed changes is that, compared to levels in England and Wales, 1 NI remuneration levels for Crown Court legal aid representation are too high and do not, therefore, represent good value for money. 2 For the current financial year, DOJNI is forecasting a shortfall of 11m between the assigned budget for legal aid and projected expenditure. Within this context, the department is seeking to broadly align legal aid levels across the jurisdictions, and the proposals set out a range of possible options to achieve this policy goal. In short, then, DOJNI is seeking views on alternative ways of reducing the levels of fees paid to legal aid representatives in the Crown Court in NI, in 1 Remuneration in England and Wales in respect of Crown Court legally aided cases is provided for under Graduated Fee Schemes (GFSs) through the Criminal Legal Aid (Remuneration) Regulations DOJNI, Consultation Document: Review of the Legal Aid for Crown Court Proceedings (Costs) Rules (Northern Ireland) 2005, as amended, 2013, DOJNI: Belfast, p.3.

2 order to bring these fees broadly into line with current fee levels in England and Wales. 2. Background DOJNI research has indicated a significant disparity between fees paid to legal representatives in Northern Ireland and those paid in England/Wales, in respect of legal aided cases in the Crown Court. The comparative sample showed that fees paid in NI under the 2005 Rules are 46% higher for solicitors, 41% higher for junior counsel/solicitor advocates (with more than three years standing) and 29% higher for senior counsel, than would be paid in England/Wales for the same cases Context The UK government recently brought forward changes to legal aid remuneration in respect of Crown Court cases in England and Wales under the Criminal Legal Aid (Remuneration) Regulations 2013 (hereafter, the 2013 Regulations). This legislation introduced graduated fee schemes (GFSs), which provide litigators and advocates with a small basic fee (scaled in accordance with the class of offence), which is enhanced by variable fees. The latter is scaled in accordance with the number of pages of served evidence, the number of prosecution witnesses and the trial duration. 4 In this sense, the fees paid under the GFSs are determined by the size and complexity of the case. 5 DOJNI is required to review the operation of the rules on legal aid, conducting a formal review of the levels of prescribed fees and rates of payment at least biennially. 6 This is the second biennial review of the 2005 Rules. In undertaking the review, DOJNI has been persuaded of the merit of following the remuneration model in England and Wales. 3 Ibid. 4 Ibid., p.9. 5 Ibid., loc. cit. 6 Ibid., p.4. 2

3 4. What is being proposed? It is important to note that the options set out in the consultation document do not make any changes in respect of the eligibility of defendants applying for Crown Court legal aid. Rather, the options relate wholly to how solicitors and counsel are to be remunerated for legally aided Crown Court cases. 7 The consultation document sets out 3 possibilities for change to reduce legal aid expenditure in Crown Court proceedings in NI: Amending the 2005 Rules to reduce the current standard fees (in such a way as to address the disparity between NI levels and those in England and Wales) Introduction of new scheme based on the existing England and Wales GFS Schemes Introduction of new scheme based on the England and Wales GFS schemes, to include changes that follow from the recent Ministry of Justice consultation process on fee changes in England and Wales DOJNI is also seeking views on the following notions, although the document does not contain any firm proposals in respect of either: Introduction of competitive tendering for criminal legal aid Introduction of criminal defence service 5. Analysis Misgivings about the potential impact of the proposals on access to justice in NI tend to centre around the controversial and contested link between cuts in legal aid and the quality and scale/availability of legal aid representation. Research affirms that falling legal aid rates [have] undermined incentives [for legal representatives] to provide [a] quality service to clients. 8 And, the evident danger 7 Ibid., p D. Bindman, Criminal solicitors losing moral compass and not just because of falling legal aid pay, 10 July [Online]. Available online at: See also: D. Newman, More than money, in J. Robins (ed.), No defence: miscarriages of justice and lawyers, 3

4 here is that substandard legal services and poor client-representative relations might negatively affect case proceedings and/or outcomes. Furthermore, legal critics have pointed out the likely long term adverse implications of these cuts for access to justice. A key issue here is the potential impact that the cuts to legal aid remuneration might have on the financial viability of counsel and solicitors firms, particularly smaller firms. For example, commenting on the English and Welsh cases, the Bar Council has observed that savage fee cuts for advocates at Crown Court level, especially in respect of longer trials, will... destroy the defence Bar. 9 From this perspective, we should be concerned at the potential negative impact of the proposals on access to justice for female defendants in Crown Court cases in NI: of the 2,215 defendants dealt with before the Crown Court during 2012, 9.9% were female. 10 Clearly there are wider implications to consider here, since case outcomes for female defendants can affect entire families given, for example, women s role as primary care givers. 6. Key questions to consider Will solicitors and counsel in NI be financially dissuaded from undertaking legal aid representation in a newly reduced fee environment; and, if so, precisely how might this impact access to justice for defendants (including vulnerable women and persons under 18) in Crown Court cases? Solicitors Journal Justice Gap Series, Justice Gap: London, [Online]. Available at: 9 Bar Council, Bar Council response to the Transforming Legal Aid: delivering a more credible and efficient system consultation, Bar Council: London, 2013, p DOJNI, Consultation on Section 75 Equality Impact Assessment on the Legal Aid for Crown Court Proceedings (Costs) Rules (Northern Ireland) 2005, as amended, DOJNI: Belfast, 2013, p.8 4

5 For example, is it possible that the proposed changes might lead to a reduction in the quality and scale of legal aid provision, such as adversely affects legal representation for defendants? In sponsoring the proposals, the Minister of Justice, David Ford, has committed to bring[ing] legal aid expenditure under control, whilst ensuring that access to justice is maintained. 11 But, given the link between legal aid cuts and reduced quality of service, is this policy aim realistic/achievable? Going forward in the context of these cuts, what additional measures/mechanisms might government potentially put in place to monitor and safeguard access to justice for female defendants in legally aided Crown Court cases? 7. Next steps The closing date for this consultation is 25 October Your feedback on the proposals would be appreciated. Please forward any comments you might have on the issues discussed in this paper to policy@wsn.org.uk by 27 September A draft version of the WSN response will be sent in due course for your consideration. The full consultation document is available to download on the DOJNI website: Contact details Caroline Walsh Research & Policy Coordinator policy@wsn.org.uk 11 DOJNI, Consultation Document, op. cit., p.3. 5