Much has been reported nationally about the government’s legal aid cuts; lawyers even resorted to public protests about government proposals. Some of the proposals were modified, others abandoned for the time being, but some were implemented.
The reality, however, for many practitioners, particularly those who defend clients in the Crown Court, will have seen the ever increasing subtle ways in which the legal aid cuts have invaded the scope of Crown Court defence preparation.
Historically, the payment of legal aid to solicitors and barristers has been dictated by the government through the Legal Aid agency (previously known as the Legal Services Commission and, prior to that, the Legal Aid Board). Never was the amount of money paid to the defence teams, the business or concern of the prosecution. Times have changed and in ways which members of the public may not be aware.
For the vast majority of Crown Court cases (except those exceptionally complex or voluminous) the defence solicitors are remunerated by the number of pages of evidence served by the prosecution. This was not always the case but in 2007-8, the last government looked at cost savings for legal aid and the trend of cuts has continued into this present government’s plans.
‘Ex Post Facto’ Bills
Prior to 2008, solicitors’ bills in the Crown Court were sent to the National Taxing Team (an arm of the court service) where the bills were determined ‘ex post facto’ (after the event). This involved an examination of the solicitor’s bill, based on hourly rates. The rationale was that the taxing officer would assess whether the bill submitted was reasonable in all the circumstances and, in support of the bill, the solicitor would provide supporting evidence in the form of file notes setting out what work was done, why, and how it furthered the preparation of the case. The National Taxing team still exists but has a reduced role these days. The team remains a branch of the Ministry of Justice but was independent of the prosecution.
In 2007, the government introduced the “Litigator Graduated Fee Scheme” for solicitors, which came in after the start of 2008 contracts. The LGFS replaced the ‘ex post facto’ determination of solicitors’ bills. It is based on certain factors such as offence type, trial length and most significantly, the amount of documentary evidence served by the Prosecution. In other words, the more pages of prosecution evidence served would mean the more that the solicitors would be paid.
The Solicitors for the most part embraced the changes. It was a way of payment which, whilst not subjective, was transparent and enabled reasonably accurate projections for cash flow and the like. It did of course have its faults and on occasions threw up some bizarre calculations. A murder case, for example, which under the old regime of payment would require often extensive preparation by the solicitors, often now has fees greatly reduced because the number of pages of evidence might only be in the hundreds or even less. On the other hand, there are always those cases where the page count has the opposite effect whereby a less serious case but with more pages of evidence yields more of a fee than under the old system.
As with any scheme implemented by the government, there were guidelines and provisions. The definition of “pages of prosecution evidence” includes all:
- Witness statements
- Documentary and pictorial exhibits
- Records of interviews with the defendant
- Records of interviews with co-defendants
which form part of the served prosecution evidence, but does not include any documents provided on CD-rom or by any other means of electronic communication…
A caveat was that a document which has existed in paper form but which the prosecution has converted (or scanned) into digital format is included within the number of pages of evidence.
However, a document which is served in electronic form and never existed in paper form is not included within the pages of evidence. Such a claim for payment has to be made under the rules of “special preparation”.
In recent months and even years, however, there has been an increasing reduction in the amount of pages being presented in cases by the prosecution. It can be no coincidence that in the times of austerity when the Lord Chancellor has made announcements as to how the legal aid rates are to be cut, the prosecution as a body of the government have played their part in reducing the fees claimable by the defence.
It may be a cynical view but the Prosecution have been able to actively determine how much the defence lawyers are paid. This has been done for some time now by the following means:
- Serving less pages of evidence
- Failing to fully transcribe the tape recorded interviews
- Serving large amounts of telephone, email, or other technical evidence electronically on disc
In the most recent months, however, new and more subtle approaches have been adopted; reducing the font size of the witness statements and reducing the spaces between the lines! Both practises have the effect of increasing the amount of information onto a single page thus reducing the amount of pages to be served! In one recent case the font size was not much bigger than this; fine, if magnifying glasses are provided with the papers!
In a number of cases dealt with by this firm, we have found that more and more material is being served “electronically” which has the effect of reducing the pages of evidence. In two very recent, extreme cases the prosecution has perhaps gone too far. Telephone evidence was served onto a disc in a format which was actually unreadable by the defence at all and only available to view with software seemingly only available to the prosecution itself!
Rest assured, some solicitors do not accept these practices and often challenge them in costs courts, but it is a time consuming practice. Whilst we continue to embrace change, it is a worrying trend of increased interference by the Prosecution into sacred areas; defence preparation.
Written by Matthew Corn