Criminal legal aid changes – what will they mean?

The consultation paper detailing the Government’s proposals for reform of criminal legal aid was published on 9 April 2013. The proposals are expected to save an ambitious £220 million per year from the £1 billion annual budget, by 2018/2019.

The paper has generated severe criticism from lawyers and campaigners, and sparked fear that the changes will bring about miscarriages of justice and tendering for criminal defence work which may result in substandard representation. The Law Society has questioned whether the tendering will save the vast sums of money claimed by the Government, and has expressed doubt over whether any money will be saved at all. There is also concern that the proposed timeframe for implementation of the changes is unrealistic and will result in cases not being adequately prepared.

So, what does the paper propose and what would the potential impact be on defendants?

The consultation paper introduces price competitive tendering where providers bid for legal aid contracts. Under the proposed model, tenders would be invited for all criminal legal aid services with the exception of Crown Court advocacy and Very High Cost Criminal cases. The procurement process is divided into two stages; firstly the ‘pre qualification questionnaire’ which would evaluate the applicant’s experience and capability and, secondly, the invitation to tender, including an evaluation of the provider’s quality and capacity to deliver the service, and an assessment of the bid price. Successful applicants in a procurement area would be awarded an equal share of access to cases in that procurement area. Contracts would be granted for a three year term, with the option for extension for a further two years.

Competitive tendering may result in firms undercutting one another and contracts being allocated to firms who are not able to provide the best quality service for their client. Defendants would no longer have the right to choose their own lawyer and would have to stay with that lawyer for the duration of the case (save in exceptional circumstances).

Other proposals include the reduction of costs for criminal legal aid fees, restrictions on legal aid for treatment issues and ‘weak’ judicial review cases, the reduction of expert fees in criminal, civil and family cases by 20% and the imposition of a financial eligibility threshold, whereby any defendant with a disposable household income of £37,500 or more would be ineligible for legal aid in the Crown Court. There is also a rule proposing to restrict recent immigrants’ access to legal aid, thereby making justice dependant on nationality, rather than need.

The proposals ostracise particular groups in society and severely restrict access to justice. The Government may win short-term support for these changes, with headlines proclaiming huge savings to the taxpayer and deriding lawyers’ salaries, however, the longer-term ramifications of these cuts has not been carefully looked at. The President of the Supreme Court, Lord Neuberger has warned of the dangers of legal aid cuts, “[i]f you start cutting legal aid you start cutting people off from justice … And that’s dangerous”.

The consultation is open until 4 June 2013 and the government will respond to the consultation in autumn 2013. The consultation paper is available here: http://www.justice.gov.uk/downloads/consultations/transforming-legal-aid.pdf

Corker Binning is a law firm which specialises in general criminal work of all types, business crime and regulatory litigation. To speak to one of our criminal defence lawyers, call us on 0207 353 6000.