Judicial review ‘end game’ in sight for criminal solicitors

The government’s contentious plans to overhaul legal aid representation in police stations and magistrates’ courts are to once again be scrutinised by the High Court this week.

The Lord Chancellor, Chris Grayling, faces another judicial review over his controversial proposals which have been widely criticised by the legal profession as damaging to the rule of law and will ultimately lead to an increased risk of miscarriages of justice.

The government is seeking to reduce the number of on-call solicitor contracts in police stations and magistrates’ courts from the current 1,600 to 527 across England and Wales. London and rural areas are expected to be the worst hit if the contracts are allowed to go through.

September 2014 saw the London Criminal Courts Solicitors’ Association (LCCSA) and the Criminal Law Solicitors’ Association (CLSA) win their first judicial review against the Lord Chancellor, following an earlier consultation on the duty contracts, which was found to be ‘so unfair as to result in illegality’.

Just prior to the Christmas period, the High Court called to a halt the tendering process following an application for interim relief by the LCCSA and CLSA. That decision was the last defeat of 2014 for an embattled Lord Chancellor who altogether suffered seven defeats in the courts over the course of the year.

The latest judicial review brought by the same group of lawyers will argue that the way the new solicitor contracts are to be introduced is both discriminatory and unfair. In addition, the Law Society is bringing its own legal challenge within the same judicial review hearing. The two-day hearing starts today, 15 January 2015.

Commenting on the hearing, the Law Society president Andrew Caplen said: “Having proper legal representation when accused of a crime is a fundamental right for everyone. The Law Society sought this judicial review because we believe this basic right is under threat. We must protect the right to an effective, publicly-funded defence system to prevent the risk of a sharp increase in miscarriages of justice.

“We are challenging the government’s changes to the way duty solicitors are provided to those accused of a crime. Our grounds include that the justice secretary failed to take into account or he misunderstood the impact of the availability of investment and financing needed by solicitor firms and the speed of market consolidation required to meet the timetable set out by government.”

Caplen added that the government has not denied that underlying its plan is a massive fee cut: “These challenges, brought by the Law Society and also put forward by the CLSA and LCCSA, are about introducing a system that has fee cuts as its primary goal. The cost to society, caused by possible market failure as a result of this process, would be devastating.”

Concluding, Caplen said: “If the government’s plan goes ahead, the most vulnerable in our society will be hit the hardest. The damage to the livelihoods of those who undertake this vital work will be irreversible, leaving huge swathes of the country will no legal representation.”

While the Ministry of Justice (MoJ) have repeatedly defended the need to reduce the number of duty contracts for solicitors doing criminal work due to the inheritance of the deficit following the financial crisis, the LCCSA and CLSA have argued that the required savings from the criminal legal aid budget have already been made due to a drop in crime and following the first wave of 8.75 per cent cuts to criminal legal aid, introduced last year.

President of the LCCSA, Jon Black, said: “If this ‘pile ’em high, sell ’em’ cheap’ approach to justice is forced through in police stations and magistrates’ courts, the ramifications for justice would be appalling. High street solicitor firms will die off, replaced by massive legal warehouses dispensing tick box justice.

“A fair defence will become a matter of luck as legal standards plummet, it will become increasingly common to see quick-fix guilty pleas which reflect the profit margins of the law factory rather than the strength of the case against the accused. In short, if these ‘reforms’ with their accompanying cuts go through, miscarriages of justice will once again creep back into our so-called ‘justice system’. In the end victims too are failed as they’re left wondering whether the right perpetrator has been brought to justice.”

Black continued: “We can’t stand by and allow the ideological will and political ambitions of a Lord Chancellor to go unchallenged when the consequences are so serious not just for the legal profession but more importantly for everyone in society.”

Speaking at the All-Party Parliamentary Group (APPG) on Legal Aid hosted by the shadow solicitor general Karl Turner MP earlier this week, Black admitted that it will be “the end game if we lose this judicial review” with potentially two-thirds of legal aid providers going out of practice.

“When less people are properly represented in our courts there really is no justice system,” argued Black. “The MoJ want to replace our legal aid legacy with legal aid factories churning out cases and tick-box justice for those lucky enough to be represented.

“We as an association, along with the CLSA, have been urging the government to think again about its proposals for duty solicitor contracts, initially with price competitive tendering and then moved on to duty solicitor contracts. We have been pushing and trying to explain to them that this will not work. They have not listened. It is an irrational, unfair and discriminatory process.”

Black asserted that the MoJ process is weighted towards large corporate firms and not towards traditional high street practices. “If we lose, only 527 out of 1,600 providers will survive and follow the civil experience where, despite warnings as to the impending disaster, miscarriages of justice and unrepresented defendants will become so common and will fill our courts and prisons. That is why we are urging the MoJ to learn from their mistakes and not continue to drive on with ideological proposals without heeding the warnings that have been given by the profession.”

This article was first published in Solicitors Journal on 15 January 2015 and is reproduced with kind permission.