The CLSA is aware that the Criminal Bar Association has recommended to its members that they may wish to decline to accept public funded work under the Advocates Graduated Fee Scheme for Legal Aid Orders dated post 1st April. We are aware that this was a decision that members of the Bar have not taken lightly and represents the consequences of cumulative attacks on the Criminal Justice System including real-term and actual cuts in funding for the entire system including legal aid for decades.
The CLSA understands why our colleagues at the Bar have taken this difficult decision and we support the Bar’s fight for a properly funded Justice system which the public deserve.
However, the AGFS issue is not the only fight. There is of course the LGFS issue, which is currently subject to Judicial review. At some stage there will be a full review of the LGFS as there has been with the AGFS . There are many more areas of contention .At this time unity between the professions is essential now and in the future to ensure not only the survival of our once fair , just and much envied CJS but also the survival of the lawyers who are so important to the running of the system
We are aware that a number of Chambers and their members across the country have decided with their consciences that they will be declining further AGFS work from 1st April. This is likely to have a significant impact on the availability of Counsel which will impact on our members and their ability to instruct advocates for Crown Court matters. Members should be aware of their obligations to record steps taken to locate advocates and should they be unable to locate Counsel, they should notify the court and the client promptly and may have to consider appropriate legal arguments if their clients cannot have a fair trial.
The CLSA is liaising with the CBA and will provide as much information as we can on any barristers who are not accepting work.
Many CLSA members are also Higher-Court Advocates. They face the same issues as the Bar and we are aware that many are also now declining to accept publically funded work post-April 1st. That should be a decision taken by individual members and their firms. Our members should consider their professional obligations and should not allow themselves to be forced into acting as an advocate in a case where by reason of skill, experience, or lack of time to prepare, they do not believe they can properly discharge their duty by acting. The AGFS scheme is not remunerated under the terms of the 2017 Crime Contracts and firms are under no duty to provide Higher Court Advocacy under the contract. Should firms choose to instruct an HCA at their firm or another, they must be satisfied that the choice of counsel is appropriate and record their decision on file.
Members will have regard to the requirements of the 2017 contact:
Clients’ interests and independence
7.2 In performing Contract Work, you must act in the best interests of your Clients and be uninfluenced by any factor other than the Clients’ (and potential Clients’) best interests. Any breach by you of this Clause 7.2 will deemed to be a Fundamental Breach.
7.3 Where you instruct Counsel or in-house advocate to conduct Crown Court advocacy services, before giving such instructions you must consult the Client about the use and the selection of Counsel or in-house advocate and advise the Client of:
(a) the name;
(c) experience; and
of this Counsel or in-house advocate to conduct advocacy in each such case having regard to the nature of that case and its complexity and the existence of alternative Counsel or in-house advocate whom the Client may choose to be instructed (subject to availability). In circumstances where you have determined through your reasonable enquiries that there is no alternative Counsel or in-house advocate actually available, you must also advise the Client of that fact.
7.4 Where Counsel or in-house advocate is instructed pursuant to Clause 7.3, if the chosen Counsel or in-house advocate becomes unavailable you must take all reasonable steps to instructs another Counsel or in-house advocate of equivalent standing and, so far as is practicable, advise the Client of the merits and suitability of the proposed replacement.
7.5 You must keep a Record (in accordance with the provisions of Clauses 8.3 and 8.4) to demonstrate your compliance with Clause 7.3.
7.6 If you become aware of any act or omission that would justify a claim against you by a Client, you must promptly advise the Client to obtain independent advice (and keep a copy of your letter on the Client’s file).