Leaders at the Bar have agreed an interim deal with the Ministry of Justice to end the fee impasse that has threatened to disrupt high value legal aid fraud trials, with discussions to reform the payment scheme for the most costly cases underway.
A joint statement issued by the Bar Council and the Government today (7 July) confirmed that ad hoc fixed-fee arrangements have been accepted by self-employed barristers to act on a number of specific ‘very high cost cases’ (VHCC), which barristers had previously collectively refused to act on under newly-reduced legal aid rates.
The move follows the Court of Appeal’s decision in May overturning a finding from Southwark Crown Court that the ‘OpCotton’ VHCC fraud trial should be stayed, after the defendants failed to find any barrister prepared to represent them on reduced legal aid rates.
Handing down the appeal in that case, Lord Justice Leveson found that it was wrong to halt the trial when there are a sufficient number of Public Defender Service (PDS) advocates – barristers employed by the state under the banner of the legal aid agency – able to act.
Under today’s decision the Government has agreed it will not further expand the PDS, which the Criminal Bar Association claimed ‘ensures the rights of a client to be represented by whomever he/she wishes are respected.’
VHCC cases were subject to a 30% funding cut in September 2013 and in a joint statement today the Bar Council and MoJ said: ‘Arrangements have been put in place, under which self-employed barristers have been instructed to represent defendants in a number of Very High Cost Cases. Given that normal working relationships have been restored, the Government has confirmed that there is no need to expand the PDS further.
‘The Bar Council, together with the Criminal Bar Association and the Circuit Leaders, have agreed with the Government to resume discussions as soon as possible on an alternative to the VHCC scheme and on the long term future of criminal advocacy, including the review of the Advocates Graduated Fee Scheme.’
CBA chair Nigel Lithman QC, said in today’s ‘Monday Message’ on the association’s website: ‘There will be those who want to know the nitty gritty detail and sums involved. Suffice it to say that the fees offered have been accepted by the individuals concerned and enable these cases to be done. They have signalled their content with the outcome negotiated on their behalf and consider these fees to be appropriate and acceptable. This has always been a commercial decision by those offered these cases. It is not an issue on which the wider membership of the Criminal Bar can impose their views.’
Total expenditure on VHCC in 2013/14 was £57m according to MoJ statistics, a decline of 16% compared to the previous year, while the overall criminal legal aid budget came in at £0.9bn.