On 3rd October, 2011, a number of changes were introduced by The Criminal Defence Service (Funding)(Amendment) Order of 2011. the purpose of these changes were two-fold; to reduce the criminal legal aid budget and to discourage solicitors from advising their clients to elect trial at the Crown Court.
The
latter reason had a number of benefits for the Ministry of Justice, The latest
figures (taken from here)
show that the average administrative cost per case in the
Crown Court is over £2,800 –
considerably more than the equivalent cost in the magistrates court. To this
figure must then be added the costs to the legal aid fund and it goes without
saying that the majority of the criminal share of that fund is spent on Crown
Court cases.
It cannot be argued that, whatever the merits, a defendant electing
trial at the Crown Court had financial benefits for the defendant’s legal
representatives in legal aid cases. A higher magistrates’ court fixed fee would
be payable, together with the litigator’s fee at the Crown Court.
Accordingly, for cases where legal aid was granted on or
after 3rd October 2011, a fixed fee was introduced for both
litigators and advocates in cases where a magistrates’ court had accepted
jurisdiction but the defendant had elected trial by jury but no trial at the
Crown Court was commenced. The fees were
set at such a low level that keeping the case in the magistrates’ court became
more profitable for solicitors.
To reinforce this, the Funding Order abolished payment for
work done in the magistrates’ court prior to, and including, the formal
committal for trial.
This left a problem; How would the Legal Services Commission
(the LSC) know, when assessing claims for litigator and advocates fees in the
Crown Court, how the case had reached the Crown Court? Had the defendant
elected, or had the court declined jurisdiction?
Easy! Amend the
respective claim forms to include a section asking (by tick box) whether
jurisdiction was declined by the magistrates or whether the defendant elected
trial by jury. However, the LSC were
dealing with lawyers and, obviously, lawyers cannot be trusted to tell the
truth. Accordingly, the amended form asks for supporting evidence of the mode
of trial decision in the magistrates’ court to be provided. No supporting
evidence? Substantially reduced fee will be paid!
This gave more work for the “form designing” department at
the LSC to do. They came up with the
LAC1
This form is to be completed by the defence giving details
of the defendant’s name, offence faced, and the name of the magistrates’ court
and then signed by the Court Legal Adviser or Court Associate to confirm that
the defendant had been “directed” to the Crown Court by the magistrates’. The
form also requires that the defence also give further vital information to the
LSC; the number of the court room the hearing took place in, and also whether
the hearing was in the morning or afternoon.
One cannot but hazard a guess that such questions are merely there to
fill up space to justify an A4 size form.
However, it is not now uncommon for a defendant to be
unrepresented at the committal stage because these proceedings are no longer remunerated
under a legal aid order. No solicitor was involved to get a LAC1 signed. How will the supporting evidence be provided to
the LSC to ensure the full litigator and advocate fee is paid for the Crown
Court work?
The simple and sensible answer would be for the solicitor to
send to the court a completed LAC1 for signature and return. This is where the most ridiculous bureaucracy
kicks in. I have been astonished by many of the decisions of the LSC in the
past but this one beggars belief, especially in the current financial climate.
It will thus come as no surprise that sending a LAC1 to the
court is not allowed! The legal advisers
have been told that they cannot backdate these forms. Why? They do not know. They are just not allowed
to do so!
All is not lost, however.
The LSC will accept an extract from the court register confirming that
jurisdiction was declined by the magistrates as “supporting evidence”.
So, the solicitor writes to the court not enclosing a LAC1
but requesting an extract of the register. This extract will not be from the
date of the committal but from the date jurisdiction was declined. The extract
may not tell you in which court room and in what session the decision was made
but this, apparently, is no longer important.
Extracts from the court register are not free. How much they cost depends to which court you
are making the application. This week we have been quoted £5 by one court and
an exorbitant £60 by another. No cheque from us, no extract. Do not fear, however, because.... THE LSC
WILL REIMBURSE YOU!
Let’s get this straight then. The no-cost and easy option of
sending the prescribed form to the court for signature is forbidden
Instead, the LSC (who are funded by the Ministry of Justice)
will reimburse up to £60 to the solicitor who has sent a payment to Her Majesty’s
Courts and Tribunal Service (who are ... yes ... funded by the Ministry of
Justice)
You couldn’t make it up!
