Fixed fees are the way forward as Legal Aid cuts continue to bite

The UK’s criminal defence service has rapidly-evolved in recent years (hyperlink to crime blog part one) as a result of a number of factors, including legislative changes and the Government introducing competition into the market.

As the profession has changed, a culture has also developed in which criminal defence is increasingly perceived as being a ‘free’ service. This has largely been due to the majority of defendants receiving Legal Aid in the magistrates’ and crown courts for the last 30 years as there has been no means-testing in place.

However, things have changed and those accused of criminal offences, with the exception of people receiving benefits, are now subject to a detailed means test in which their assets and income are scrutinised.

 Legal Aid v privately-paid cases

Defendants are now paying the price, not only from their personal finances, but in the quality of the representation they receive. In the past, there was very little difference between the standards of the defence services funded by Legal Aid and those received by a privately-paying client.

We foresee a clear distinction between the quality of service provided under Legal Aid and a privately-paying client soon becoming all too apparent as cuts to Legal Aid payments to solicitors and counsel continue to bite.

 Compromising standards

Standards will most probably be maintained in the most serious cases, that are likely to be well paid under Legal Aid, such as class A and B offences, including large-scale conspiracies and fraud cases.

The cases that will be hit the hardest are those heard in the magistrates’ and crown courts for a wide range of matters, such as thefts, assaults, drug cases and burglaries.

As a result, some clients will have to pay privately if they want to be represented.

Others will have to pay because their case does not meet the interests of the justice test or because they do not qualify for Legal Aid based on their level of income and the value of their assets.

Do privately-paying clients receive a better service?

They certainly benefit from more efficient levels of customer service – their telephone calls are attended more promptly and they receive regular updates and conferences. In contrast because of the low fees not as much time and attention can be dedicated to cases under Legal Aid.

An increasing number of private clients go to court in better shape than those funded by Legal Aid, which was not the case 25 years ago.

There was also a time when private clients, who won their case, could expect to get the best part of their money back. Unfortunately costs can now only be recovered at Legal Aid rates as a result of Schedule 7 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

Fixed fees are the answer

Clients understandably want to know how much their defence services are going to cost them. The only way defendants can be sure of the final cost is by asking for a fixed fee. Estimates, based on hourly rates, are of little use and are effectively, an uncontrolled Direct Debit into defendants’ assets.

There is no case in which a fixed fee cannot be quoted. We usually cost more straightforward cases, such as driving offences and minor thefts, from a menu of charges with a simple fixed fee based on whether or not the case is contested and the anticipated length of trial.

Providing a fixed fee in more complex cases requires extensive knowledge however, it is still achievable. We base our quote on the anticipated volume of relevant papers, the length of the trial and advocate’s fees.

If we underestimate our quote – there are more papers or the trial lasts longer than anticipated, the loss is ours to absorb – a fixed fee, is a fixed fee. In time, as Legal Aid cuts continue to hit, an increasing number of clients will shop around more for quotes. There will be true competition in the market then.

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