The King (on the application of the Law Society of England and Wales) v The Lord Chancellor
| Jurisdiction | England & Wales |
| Judge | Lord Justice Singh,Mr Justice Jay |
| Judgment Date | 31 January 2024 |
| Neutral Citation | [2024] EWHC 155 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: AC-2023-LON-000888 |
and
[2024] EWHC 155 (Admin)
Lord Justice Singh
Mr Justice Jay
Case No: AC-2023-LON-000888
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Tom De La Mare KC, Jason Pobjoy, Gayatri Sarathy and Emmeline Plews (instructed by Bindmans) for the Claimants
Sir James Eadie KC, Catherine Dobson, Adam Boukraa and Isabella Buono (instructed by the Government Legal Department) for the Defendant
Adam Wagner (instructed by Hay & Kilner for the First Interested Party and by Mr Edward Elwyn Jones for the Second Interested Party) for the Interested Parties
Hearing dates: 12–14 December 2023
Approved Judgment
This judgment was handed down remotely at 10 a.m. on 31 st January 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Lord Justice Singh AND Mr Justice Jay
Lord Justice Singh and
Introduction
This is the judgment of the Court.
This claim for judicial review arises from recommendations made by Sir Christopher (now Lord) Bellamy KC in the ‘Criminal Legal Aid Independent Review’ (“CLAIR”) Report dated 29 November 2021. The Claimant is the Law Society of England and Wales. The Defendant is the Lord Chancellor. Although the Lord Chancellor accepted and has implemented many of the recommendations made by Lord Bellamy, the Law Society challenges two aspects of the response to the report:
(1) The failure to implement the “Central Recommendation” in full, that is Recommendation 5 of the Report at para 16.4, that additional funding of at least £100 million per annum (an overall increase of some 15%) was required for criminal legal aid solicitors' firms;
(2) The alleged failure to implement Recommendation 3(i) at para 16.2, that an Advisory Board should be established and that the Ministry of Justice (“MoJ”) should consider, in conjunction with the Advisory Board as appropriate, the extent of unmet need in criminal legal aid and how those needs should be met, referred to by the Law Society as the “Non-Intervention Recommendation”.
In outline, the four grounds of challenge are that:
(1) The Lord Chancellor has breached the duty to provide criminal legal aid in accordance with section 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“Ground 1”).
(2) The Lord Chancellor has acted irrationally (“Ground 2”).
(3) The Lord Chancellor has failed to provide adequate reasons (“Ground 3”).
(4) The Lord Chancellor has breached the duty to make adequate enquiries (often referred to as “the Tameside duty”, after the leading case on the subject, Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, at 1065) (“Ground 4”).
Ground 4 was added with the permission of Fordham J shortly before the hearing before us but logically comes between Grounds 1 and 2, which is how we will deal with it below.
We are grateful to all counsel and solicitors in this case, including those acting for the Interested Parties, for their written and oral submissions, and for their diligent preparation and presentation of this important case.
The Facts
The Fee Schemes
The principal focus of these proceedings has been three of the various fee schemes laid down by secondary legislation for the remuneration of publicly-funded solicitors' work in the field of criminal justice. Each of these schemes is administered by the Legal Aid Agency (“the LAA”). What follows is a necessarily simplified version of the regimes currently in place, principally under the provisions of the Criminal Legal Aid (Remuneration) Regulations 2013, as amended from time to time.
The schemes in question are the Police Station Advice Scheme, the Magistrates' Court Fee Scheme and the Litigators' Graduated Fee Scheme (“LGFS”). Little time was spent during the hearing examining the detail of the Magistrates' Court Fee Scheme and we may therefore address it quite briefly. In short, if the solicitor has applied to the LAA and obtained a representation order for a case in the Magistrates' Court (in other words, the accused has satisfied both the means and the interests of justice tests), the level of remuneration will depend on whether the work on the case qualifies for a Lower Standard Fee, a Higher Standard Fee, or a non-standard fee. Payment is based on a combination of hourly rates, fixed fees and thresholds.
The Police Station Advice Scheme was first set up in 1986 to meet the pre-requisites of the Police and Criminal Evidence Act 1984 (“PACE”). Section 58(1) and PACE Code C provide suspects with a right of access to private, independent legal advice which is not subject to any means test. In general terms a suspect who wants legal advice may not be interviewed or continue to be interviewed until such advice has been received, and the custody officer must act “without delay” to secure its provision. Further detail appears under para 89 below.
Currently, there are approximately 190 police station and Magistrates' Court duty solicitor schemes across England and Wales, and in addition 15 Magistrates' Court schemes in London. As at January 2023 there were 1,127 law firms (or “providers”) holding a contract to deliver criminal legal aid advice, and 4,023 duty solicitors on the duty schemes. Advice and assistance under this scheme may also be given by police station accredited representatives who are either employed by or consultants to the solicitor's firm, or they may be supplied by independent agencies. There were 3,053 of these in June 2021.
The Police Station Advice Scheme will normally require the physical attendance of the solicitor or accredited representative at the police station, typically for the police interview. The suspect is also entitled to telephone advice. Precise figures are unavailable and those set out in the voluminous documentation before us vary, but according to Dr Vicky Kemp, who gave evidence to Lord Bellamy, only about 50% of suspects seek advice at the police station.
For administrative purposes, individual police stations and courts are grouped into geographical duty scheme areas. These are aligned to postcode areas (or groups of postcodes) and a provider's scheme eligibility is based on the postcode location of their office or offices. Providers on the rota will receive an allocation of duty rota slots in proportion to the number of duty solicitors they engage, although they can rely on the wider pool of solicitors and police station accredited representatives to conduct some of the attendances. Under the terms of the Specification to the Standard Crime Contract, providers are contractually required to ensure that they are able to service the rota slots allocated to them. If they are unable to cover a case for any reason, for example owing to a conflict of interest, they must make alternative arrangements to cover that slot, which may include handing the case back to the Defence Solicitor Call Centre (“DSCC”) so that it can be deployed to another provider. The DSCC, operating a backup system, will either allocate the case to another provider within the scheme, or will contact providers from neighbouring schemes. Beyond using “all reasonable endeavours”, there is no contractual requirement to accept back-up work.
It is part of the contractual requirement that a provider accepts 90% of cases referred to it on the rota. This is a Key Performance Indicator (“KPI”), compliance with which is monitored by the LAA through Provider Activity Reports.
Once a case has been accepted, a solicitor must use reasonable endeavours to contact the client by phone within 45 minutes, and that target must be met at least 80% of the time. Under clause 9.48 of the Specification, there is an obligation to “arrange attendance at the Police Station, if necessary, within 45 minutes”. In some areas the LAA has relaxed that requirement in recognition of the travelling times often entailed, although even in those areas the expectation is that the solicitor will use best endeavours to attend at the time agreed.
Since January 2008, fixed fees are paid under the Police Station Advice Scheme for all work relating to police station attendance, and these vary according to geographical area, the highest fees being paid in Central London and Heathrow. These fixed fees cover travelling time, however long that may be, and are not paid if the police interview is cancelled. There is also an “escape fee”, normally three times the fixed attendance fees, ostensibly to deal with exceptional cases. Only some 0.2% of attendance claims result in an escape fee being payable.
Turning now to the LGFS, this scheme was introduced in 2007 and is based on a series of fees and proxies to arrive at the final fee. The final fee will vary according to: the basic fee for the offence in question; whether there is a guilty plea, a “cracked” trial (i.e. where a trial does not proceed for some reason such as a late guilty plea), or a trial; the length of the trial (i.e. the “Trial Length Uplift Element”); the number of pages of prosecution evidence (“PPE”); whether more than one defendant is represented; and any necessary adjustment for transfers and retrials. The calculations are complex, and need not be set out for present purposes, but the central point is that the higher the PPE, the higher the fee. The LGFS is the most significant part of criminal legal aid spending by far and it cross-subsidises other types of work. More specifically, the evidence of Professor Abigail Adams-Prassl is that the PPE and trial length uplift elements of the LGFS...
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