Legal Aid Fees Dispute: “The reality is this is happening across the north”

The dispute between the Northern Ireland Justice Minister, David Ford, and solicitors over cuts to legal aid fees in Crown Court Proceedings seems to be intensifying.

The Belfast Telegraph reports

Pearse MacDermott, from the [Solicitors Criminal Bar Association (SCBA)], said: “Recent action has been taken as it is felt that the rates of remuneration introduced will jeopardise access to justice, particularly in more complicated and serious criminal cases.”

Cases can spend months being heard in magistrates’ courts before they are passed to the Crown Court.

Mr MacDermott added 100% of briefs in Belfast proceeding from the magistrates’ to Crown Court since Wednesday have involved solicitors refusing to take them and the same action had been taken across other parts of Northern Ireland.

That claim is echoed by comments in a BBC report of another case where solicitors for four defendants have come “off record”.

Brian Archer, a solicitor for one of the accused, said it was with regret that he and his colleagues were coming off record, but that felt they had “no alternative”.

Outside the court Fergal McElhatton, who had been representing another of the suspects, insisted the action was now widening.

He said: “My understanding is that in terms of Enniskillen Magistrates’ Court alone 11 firms have advised they will come off record on any preliminary enquiry, as and when they are held, and will not appear at the Crown Court.

“The reality is this is happening across the north. This has been rolled out in Derry, Downpatrick and Craigavon.”

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  • Just thinking about an ethical angle on this dispute.

    If solicitors are highly likely to refuse to represent a client once it gets to the crown court, it is arguable that they should be refusing to take on the case in the very beginning, which is usually at the Police station before charge. At the very least, they should be explaining that to the client over the telephone just after being contacted by the custody sergeant so that the suspect can make an informed decision and try for another solicitor. Of course, I have said before that this could lead to cases being struck out. Perversely, the suspect might want to stay with the solicitor in the hope of that happening. In fact, there is a danger that the number of “not guilty” pleas will rise because of this dispute and thus excaserpate the clogging up of the system.

    Meanwhile, here is another thought. A fee hungry solicitor decides to try and grab a slice of the criminal law work by taking advantage of the dispute. He tells the local PSNI that he is ready and available 24/7 to advise a suspect at the police station and will not withdraw his services if the matter goes to the crown court. He also makes his availability to do represent clients at the local magistrates’ court. I would imagine that at the back of their minds, there is a fear amonst solicitors that will happen.

    The action by the solicitors will only have a chance of success if they all stand together. I imagine that David Ford will hope that some of the solicitors break ranks and stab their bretheren in the back.

  • Cynic2

    The Executive has got to tough this one out. Literally they cannot afford not to

  • DC

    The cases will have to be struck off and other solicitors will have to takr up these cases.

    Newspapers should find out the names of these legal eagles that are withdrawing. A list of these solicitors should be published. Then the public and politicians should write into the Law Society and ask that organisation to ask its members (solicitors etc) to open up their books to the NI Executive to see if these particular claims stack up i.e. solicitors can no longer afford to run these cases.

  • George

    Are barristers also allowed refuse a case on the grounds of money north of the border or is it just solicitors?

  • Driftwood

    Legal Aid, and the correspondent bureaucracy involved, are making a killing off the present status, as is the Law Society as a whole. The head of the legal aid end had to be suspended from his job over the whole farce. Nothing has been done to respond to this as David Ford doesn’t want to know about the sham, in case it reflects on him.
    Isn’t Stormont just simply wonderful?

    Millions of pounds wasted, because Alliance will not speak out against their masters. hard to take if you’re waiting on a CT scan.

  • Hopping The Border

    DC.

    What a ridiculous statement. When other professions/workers strike is a list of all the names of the strikers published in the local press?

    Similarly, under what pretense should firms open their books to the executive? Does something similar occur when other workers strike? Which department would oversee this?

    The government and the entire country already know/can access the amount in legal aid that is received. So what is it you/the executive want to know – how much solicitors’ outgoings are? To check whether they are being truthful – again is this behaviour replicated in other professions?

  • SDLP supporter

    This is an issue that David Ford must tough out and he will win everyone’s support and respect if he does so. The core issue here is that it is taxpayers’ money which is paying llegal aid and they are entitled to best value. If Newton Emerson is right that hourly rates in NI are three times those paid in GB, this is a gravy train that must be de-railed permanently.

    Given the over-supply of parasite lawyers in NI (troubles over, conveyancing almost dead, etc), the usual suspects on the preferred supllier list should be excluded permanently. There’ll always be solicitors/barristers excluded for so long from the gravy train willing to take over the work.

    It’s a bit like the miners’ strikes in the seventies and eighties. No matter how horrible the government (and Thatcher’s was) when any interest group pits itself against a democratically-elected government, as Scargill so stupidly did, there can only be one winner.

  • DC

    To check whether they are being truthful

    That’s exactly the reason.

  • DC

    Oh by the way the Law Society regulates solicitors and such claims should be investigated – i.e. legal aid fees do not cover court work – so that – as regulators – the Law Society can show government the proof.

    If there is proof then by all means those solicitors have a right to withdraw, if not they have been telling porkies.

  • DC

    If the Law Society refuses it should lose its ‘self-regulation’ role and be struck off.

  • Old Mortality

    “when any interest group pits itself against a democratically-elected government, as Scargill so stupidly did, there can only be one winner.”

    Unfortunately, this is not a democratically elected government and at least some members of it are likely to be in sympathy with the solicitors who may well be the source of generous donations.

  • TeddyT

    People are simply missing a number of points here.

    Firstly, the principle of Legal Aid, like a free health and education service, is a truly admirable thing. The concept that the poorest person in society can avail of the same expert representation that the richest in society can is an ultimate statement of equality. This a fledgling democracy and our current politicians are blessed with an opportunity to shape institutions that can be the envy and example to the rest of the world. The Criminal Justice System is key to this. We need to have a professional and civil police force based on community needs. We need a Prison Service that is humane and rehabilitates (remember over 80% of current prisoners have diagnosed mental health problems). We also need a Court System to challenge the state and ensure equality for all citizens, Legal Aid is fundamental to this. David Ford wants an American style public defender system, because it’s cheap. Unfortunately for David Ford the Scottish Public Defender System has been a disaster both in cost and more importantly for cases where miscarriages of justice occurred. When was the last miscarriage of justice in this jurisdiction? According to the Solicitors the dispute is over £600,000 of a budget. They came with a cut proposal that was within budget. David Ford came back and forced through this new proposal that has now been deemed untenable.

    Secondly, Legal Aid is not the problem for Court Service costs. The Legal Services Commission runs Legal Aid, previously it was run by the Law Society. When the Legal Services Commission took over the system the cost rose by over 500% immediately and has increased every year thereafter. How many consultants from outside firms are working there for £200 per hour? Why is the Northern Ireland Court Service when one takes away the Legal Aid Budget still the most expensive Court Service in the EU per head of population?

    Thirdly, it is the barristers and NOT the solicitors who were paid massive fees by Legal Aid in the infamous VHCC cases. In all these cases solicitors had to submit an itemised schedule of work, outlining dates and time spent working on the file. If they could not justify the work they were not paid it. Barristers on the other hand simply submitted a fee of what they thought the case was worth and were paid it by the Court Service. The Bar were always paid more than solicitors per case.

    We get the politicians we deserve. If we accept cuts designed to erode the fundamental pillars of our society then we deserve to turn Belfast into Baltimore. The US is a real shining example of social justice.

    Finally, cuts to Health Services and Education are more important but we should not accept these either. There is plenty of fat to be cut out first!

  • DC

    Firstly, the principle of Legal Aid, like a free health and education service, is a truly admirable thing.

    Wrong.

    The health service is free at the point of use for *everyone*, and third level education is having high fees added on upfront.

    The poorest should receive quality legal advice but not over and above that what the less poor and other people should get – who don’t get subsidised. Now that’s an equality issue.

    The legal system is in a mess – it is prohibitively expensive for the vast majority of people (from the lower- to upper-middleclass) who can’t afford to use it to asset their rights.

    Plus the solicitors and lawyers don’t give a toss for these poor clients and I would hazard a guess that they prob – on the whole – fed up with them, but where would the law be without criminals from the less well off walks of life, probably be in the same state as the church would be if there were no longer any sinners.

    The law should lay off the working class and the less well off and generally give people a break who are struggling.

  • DC

    Another thing – both the education and health sectors are in full state control and the vast majority are under public sector contracts.

    In fact this has just made my mind up about the private sector moving from the periphery to the core of NHS service delivery – no way.

    We see today in the legal profession just where this ‘private sector’ approach will take us.

  • Comrade Stalin

    The concept that the poorest person in society can avail of the same expert representation that the richest in society can is an ultimate statement of equality.

    Indeed it is, but it’s not all a one way street. There is at least one solicitor practice I’m aware of whose entire caseload consists of family legal work which is funded by legal aid. People in difficult family circumstances who are not entitled to aid are more likely to find a way to settle the various disputes, rather than sit in a courtroom and have solicitors argue about who gets the breadbin or the kitchen clock.

    When was the last miscarriage of justice in this jurisdiction?

    You’re seriously asking ?

  • TeddyT

    A couple of points in response to DC and Comrade Stalin:

    1. Everyone avails of criminal Legal Aid without having to subsidise it. Rich, poor or middle income. The only test is that if convicted you face imprisonment or serious financial hardship. It is in this sense the perfect implementation of equality.It is not open to just the poor but these proposals will ensure that only the richest will get the best representation. Everyone gets it now.

    2. Yes criminal lawyers need criminal clients. I don’t know how that is exploitive (I also don’t think the Church and Sinners analogy works). It’s not fair to say lawyers don’t care. Of course some don’t but the good ones, in my experience, do care otherwise people would not use them. Criminal lawyers get their client through reputation not through some preferred suppliers list (although this is something being pushed also by Court Service). That acts as quality control.

    3. The legal profession shouldn’t be under full state control like the health and education services. That’s were it’s independence stems. It should be funded properly by the state to challenge the state, it can’t also be run by the state (again that is what a Public Defender System is). If someone is charged with an offence the state has the full and unlimited investigative resources of police and CSI, coupled with the legal resources of the Public Prosecution Service. An average case in the magistrates court cost £400 in legal aid to defend, the cost to prosecute at least 10 times that! People really need to look at the whole picture and not in a simplistic and tabloidesque way. Legal Aid is important.

    4. Criminal Legal Aid is different from Family Law Legal Aid, which is under attack. I agree that there are areas in Family law where legal aid is unnecessary ie a Divorce. However, it also protects the vulnerable eg abused women, fathers denied access to children, grandparents concerned that there may be abuse, etc. It is necessary but yes needs to be reviewed.

    5.When was the last miscarriage of justice in this jurisdiction?

    You’re seriously asking ?

    Probably the conviction of Danny Morrison. Unless I’m missing something

  • DC

    TeddyT – thank you for your considered response, apologies if mine have been a little shrill and strident but something has to be done to reform the legal system.

    In relation to:

    The legal profession shouldn’t be under full state control like the health and education services. That’s were it’s independence stems. It should be funded properly by the state to challenge the state

    Surely that’s a false argument – funded by the state to challenge the state? It may as well just be brought in under statutory control with solicitors also brought in line with public sector contracts – which are on strict payscales.

    Your argument then must be that it is impossible to challenge politicians on the quality of healthcare provided – which at times can be a life and death matter for the patient. And this isn’t the case. Politicians are taken up on quality and treatment and accountability is there.

    I see no reason why solicitors shouldn’t be on more than an SO salary in the NICS – based on a fair allocation of work, or at times whenever there are some tricky cases, casework could be shared and consulted on with other SOs and by a manager – a DP who would need to have a similar level of knowledge as a barrister.

    What is knowledge other than the ability to read information and use it analytically. As people have commented on other threads about this so much knowledge is available online – the barriers are coming down on accessing even the most obscure kinds of cases each with their own set of unique outcomes in law. Go online and you will be able to find even the most knotty cases at your fingertips in a matter of minutes, using relatively cheap legal subscriptions like lexus nexus etc.

    When I mentioned this cheap and easy access to legal information – to my brother-in-law – who is a solicitor in London – he quipped that is why the legal profession attempts to wrap its language up in Latin – as a form of protectionism designed to add an additional ‘specialism’ and with that additional fees!

  • DC

    5.When was the last miscarriage of justice in this jurisdiction?

    You’re seriously asking ?

    Probably the conviction of Danny Morrison. Unless I’m missing something

    No, no – Christy Walsh!

    (Nb – file under humour)

  • Skint Taxpayer

    Living on an average wage with increasing stealth taxes I think people are waking up to the fact that every facet of society is directly or indirectly funded by an ever decreasing circle of ‘net’ taxpayers. I use the term ‘net’ cautiously as we all avail of public services in return BUT I think we need to cut down public sector costs. Sorry Legal Profession but, much as you do provide an important service, so do for example refuse collectors. The difference is if a bin collection strike occurs, that hits the wider public. Legal support withdrawal will cause difficult issues for individuals, but as this will hit well lined pockets I don’t think there will be much sympathy. The sooner these elements of the legal profession (higher paid echelons of court services and all) realise that everyone’s pockets are emptying the better. Stick with it Mr. Ford and take it all the way.