Criminal legal aid reforms do not go far enough, says CILEX

Government plans to reform the ‘crime lower’ fee schemes do not adequately address the concerns of the Criminal Legal Aid Independent Review (CLAIR), CILEX warned in its response to a Ministry of Justice (MoJ) consultation in March.

CILEX called for a “realistic and sustainable rate” for pre-charge engagement (PCE) work if the benefits of it are to be realised.

Responding to the MoJ’s Crime Lower consultation, CILEX argued that the overriding considerations within CLAIR’s recommendations were that fixed fees did not consider the complexity of cases.

In relation to harmonising police station fees, option one in the consultation would see the £16m available used to increase the lowest fees excluding London, and the second increase the lowest fees including London. The latter would mean a slightly lower figure outside London than the former.

CLAIR recommended restructuring the system to establish a lower standard fee, a higher standard fee and a non-standard fee. This would “better represent the complexity of work undertaken”, CILEX said.

It continued: “CILEX does not believe the proposal in either option one or option two sufficiently enacts CLAIR’s concern regarding fixed fees as it still does not fully reflect the complexity of cases.”

Forced to choose, CILEX “reluctantly” stated it preferred option two: “Option one would be unfair to London firms also undergoing budgetary pressures, whilst London practitioners also suffer from a cost-of-living crisis.”

CILEX acknowledged, however, that both options go “a long way to reducing the variation in different fee schemes and will ensure that there is parity in cases no matter where they are geographically (excluding the London/non-London divide)”.

In response to the call for feedback on how the regime of payments for PCE was working, CILEX practitioners reported that very few cases were identified for it. “CILEX believes that specific considerations and guidance should be made to ensure that appropriate cases are flagged for pre-charge engagement work, ensuring correct information is brought to the attention of the police/prosecution by the defence lawyer.”

Further, the pay for PCE was not viable, meaning “a realistic and sustainable rate” was needed to drive the cultural change required.

The response backed the move to a separate Youth Court fee scheme and said enhanced fees for indictable-only and triable-either-way offences may incentivise experienced practitioners to undertake more work in this area – but, insisting that all Youth Court cases were serious, CILEX said summary offences should be included too.

It argued that the discarded option of making a certificate for counsel automatically available for all indictable-only offences should be implemented too. Having counsel “is fundamental to ensuring that appropriate advocacy is provided, especially arguments in mitigation for the defendant. CILEX therefore questions why this proposal was removed as an option”.

The response also expressed disappointment at the decision not to move forward for now with CLAIR’s recommendation to introduce a standard fee model for both prison law advice and assistance and Criminal Cases Review Commission matters.

“Refusing to make changes, which are valid and needed, to the system is not adequate, and CILEX calls on the Lord Chancellor to either seek funding for this within the justice budget, or to request further funding from the government.”

Then CILEX president Emma Davies commented: “It is frustrating that we continue to see these piecemeal tweaks to criminal legal aid. While they represent a measure of progress, the impact is nothing like it would have been had the CLAIR been fully embraced and implemented, as the government should have done.”