The nationwide protest over fee cuts and reforms by criminal legal aid lawyers entered its second month as the action transferred to the Crown Court.
In a second ballot, members of the Criminal Bar Association (CBA) voted by 55% to 45% to join solicitors in the action that they began on 1 July, the date on which the second tranche of 8.75% cuts was implemented.
Since that date, solicitors, with near unanimity, had refused to take new cases in the police station or magistrates’ court, with the exception of police station duty work. Following its vote, the CBA agreed to join the protest from 27 July, refusing new cases and implementing the “no returns” policy.
A few days in advance of that date, solicitor groups met Justice Secretary Michael Gove to discuss a way forward. The CBA was not present due to what all the lawyers’ groups described as a “confusion and misunderstanding”.
Following the meeting, the solicitor groups announced that the action would transfer to the Crown Court and work recommence in the police station and magistrates’ courts. The move initially prompted concern and threatened to break the unity between the two professions, as some barristers felt the change in tack transferred the financial risk of action onto them.
The solicitors’ groups explained that after three weeks, the action was on the brink of “collapse”, as some of the bigger firms could not sustain it financially and were ready to “pull out”. The “new phase”, they said, would make continued action more sustainable.
In an emergency meeting, the CBA executive agreed to continue to support the protest action, which, at the time Counsel went to press, remained on-going.
A second meeting between the solicitors’ groups and Ministry of Justice (MoJ) officials took place, with the CBA in attendance to observe.
In a note that followed the meeting, the Criminal Law Solicitors’ Association and the London Criminal Courts Solicitors’ Association said that it had involved a “frank exchange” in relation to the impasse.
The practitioners made it clear that the profession could not sustain the reduced fee rates and the MOJ stated it would not consider any representations about the new two tier contracting arrangements, due to begin next year.
Further talks are due to take place with the aim of resolving the situation and the profession has been asked to provide alternative savings to the government.
The Bar Council’s Ethics Committee has published a note to barristers on the refusal of work on grounds relating to fees.
The note reminds barristers of the exception to the Cab Rank rule, which allows them to refuse work where a “proper” fee for the required services has not been offered.
Since November 2003, criminal defence graduated fee work has been excluded from the provision of the Code of Conduct deeming them to be proper fees.
In deciding whether a fee is “proper”, barristers must consider whether they “in good faith” regard the fee as proper, and if in good faith they do not regard it as such, whether they are acting “reasonably and justifiably’ in reaching that decision.