Dear Lady Justice Macur
As you are aware many Counsel are refusing to accept instruction in post-1/4/18 “legal aid” matters due to a general dissatisfaction at the Bar with the new Advocate Graduated Fee Scheme (AGFS).
This has placed solicitors and their clients in a very difficult position. We hope this letter will be helpful in explaining the approach we have recommended to our members in the context of the Law Society and the Solicitors Regulation Authority advice regarding our professional responsibilities.
The current dispute is not of our making, although we recognise that it is rooted in the ongoing program of a permanent erosion of value of payment for work in criminal legal aid and a history of cuts since the mid-1990s. We understand the disquiet of many at frankly uneconomic rates paid for a great deal of the work.
As Solicitors we have adapted to the two decades of cuts by substantial changes in working practice. Like the supply chain of supermarkets and manufacturers most firms operate on a “just in time” basis and are lean organisations. We have to respond on a daily basis to the unexpected; clients arrested and requiring police station representation, people walking into our offices for advice, overnights in custody in the Magistrates Court and overnights in the Crown Court arrested on warrant.
In addition Duty Solicitors are committed to 24 hour police station rotas and court rotas, including Saturdays, and must meet strict contractual criteria to complete 14 hours criminal litigation per week (which does not include Crown Court advocacy) and a contractual minimum of police station and Magistrates Court attendances per month. This particularly impinges on the availability of those with dual Higher Court Advocacy and Duty Solicitor roles.
There are other issues. In particular our professional indemnity insurance sets a limit on the type of work firms can do and obviously constrains us in our judgement about who can be deployed to do what. Those constraints and our professional responsibilities are reflected in the Law Society and SRA advice.
Clients are the lifeblood of every firm. We succeed or fail by recommendation and reputation. We are in a very different position to Counsel and have very different skill sets. Protecting our clients from adverse outcomes and acting in their interest is paramount. However in a finely balanced system without a “surplus” of unused resource the unavailability of Counsel will make our management of cases very difficult.
We have urged our members to communicate through the DCS the difficulties they encounter. It may be anticipated that in simpler cases with a clear path to plea, completion of a PTPH form and written communication may enable a trial date to be set and issues and witnesses identified.
In more complex cases there are issues which pose real problems and which require the expertise of trial Counsel, for example fitness to plead, defences to murder, offering alternative pleas and issues around defence statements.
We must also inevitably prioritise bail applications using the resources we have and can obtain to make them.
We hope that good and timely communication about our difficulties will enable your Judges to make sensible decisions about the progress of individual cases. Our members cannot undertake advocacy for which they are not qualified or ticketed. To do so would be foolhardy and a breach of their professional obligations. The statutory framework regarding advocacy has been usefully summarised in a document prepared by the CBA.
It will not generally assist firms for multiple demands to be made requiring the attendance of Solicitors or Partners at court when the Criminal Bar Association ‘s dispute has already imposed an additional layer of stress in the management of clients and cases. We hope Judges may be encouraged not to adopt a practice of calling for Solicitors to attend in the absence of Counsel.
In a situation where inevitably a large number of cases will be without representation by advocate, we hope, that assisted by timely communication, a pragmatic and reasonable approach will prevail.
We do take the view that proceeding to sentence without representation is a dangerous course. A written note submitted to the Court is not an adequate replacement of an advocate. Sentence hearings are dynamic and do require a properly competent advocate. Again good communication and some flexibility of listing will assist
We hope this letter is helpful and that the management of cases will respect the difficulties Solicitors have in husbanding and allocating the resources that are available.
Given the urgency of the challenges we face I have arranged for this letter to be copied to the Resident Judges of the London Crown Courts and other Courts such as Maidstone, St Albans and Luton.
We would be very happy to meet if that would assist.
President of the London Criminal Courts Solicitors Association
Chair, Criminal Law Solicitors Association