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Image from ‘More Rough Justice’ by Peter Hill, Martin Young and Tom Sargant, 1985

When someone is wrongfully convicted – or serving an unfair sentence – their first thought might be to get hold of an experienced appeal lawyer. However not only has the pool of such lawyers shrunk over the last few years – but the remaining lawyers are currently under attack from the Legal Aid Agency which administers the legal aid scheme through its aggressive audit practices. The net result will be that more  lawyers will continue to withdraw from publicly-funded work.

Legal aid for criminal appeal work has, like many other areas, been cut over many years but remarkably it is now one of lowest paid of a wholly underfunded system. Defence lawyers have not had a fee increase for 20 years.  Following the second tranche of 17.5% cuts which came into force at the start of the month, an appeal lawyer will receive just £247.50 to review a Court of Appeal case and £412.50 if it is before the Criminal Cases Review Commission (CCRC).

A hard-pressed appeal lawyer will be paid the same whether it is an assault case running to a few pages or a murder with several boxes of papers. Little wonder therefore that only the most dedicated remain looking at miscarriage cases under the public funding scheme.

The system is also skewed against proper funding of disbursements – costs such as counsel’s fees and experts’ fees.

Finally even if you, against all odds, do find a solicitor to review your case, only limited legal aid will be given to the barrister representing you at the Court of Appeal and invariably no funding will be provided for the solicitor who will be expected to appear at court pro bono.

This is particularly disturbing when now the Court of Appeal expects new representatives to do so much work before lodging an appeal, including obtaining the original legal team’s comments on the case and confirming all the original facts (R v McCook [2014] EWCA Crim 734).

Everyone remains silent however on who is funding all this additional work.

If that was the only problem, then frankly appeal lawyers could live with it.

Nil assessed
The problem however is that the Legal Aid Agency (LAA) now appear to have adopted an aggressive audit strategy and are currently auditing criminal appeal firms out of business. All legal aid firms operate to a contract with the LAA and a specification which prescribes what can and cannot be done. No one would of course suggest every appeal case should be funded no matter what an appellant has to say. Some appeals will simply have no hope and that is why every case should be subject to a stringent sufficient benefit test assessment.

Those assessments for the purposes of criminal appeal cases are set out in Part B of the specification to the criminal contract – and it is, as ever, the interpretation that the LAA is now seeking to apply to that specification that is causing so much difficulty around the country.

Many firms are facing huge rafts of files being ‘nil assessed’ due to cases not passing the ‘sufficient benefit’ test and are being asked to repay the LAA. Where firms are asked to do so, despite acting in good faith, they are left in a wholly unsustainable position.

A point of principle CLA 56 makes clear that it is for the law firm to determine whether providing advice on a particular case is manifestly unreasonable. Yet there is now evidence from a number of firms that the LAA is arguing on audit that cases are manifestly unreasonable without providing any adequate justification for doing so.

The LAA is pressing every provider to provide objective evidence to demonstrate a case should be undertaken. Yet when they are challenged, they are unable to provide any effective answer but simply say ‘they had the principles in mind’ when deciding a case did not have sufficient benefit. This is clearly wholly subjective. If that wasn’t bad enough, there are other concerns as to the LAA’s approach which raise fundamental issues for the appeal system.

For example, the LAA is currently arguing that if there is an existing appeal then the case is out of scope. Of course, when someone is wrongfully convicted they may hope that there will be an appeal. If not, they will be told by the Court of Appeal that they must appeal within 28 days. Many therefore put their own appeal in or will apply to the CCRC to get things moving. A large number will have been told they can appeal sentence but not conviction, therefore having an appeal sentence running but no help with a conviction appeal.

The LAA’s position is that if any of those examples apply, then the case is out of scope and they cannot have legal aid.

Therefore those reading this article in custody should be aware that if they are lodging any applications, they are unlikely to get legal aid. One wonders what the Court of Appeal’s view of this is – a policy which is effectively encouraging unrepresented appellants to clog the system or for appellants to delay appeals so they can get legal aid.

The nonsense continues.

The idea that once someone is convicted that they could go to their original legal team for advice is just plain crazy. But the LAA argues that there is a presumption that the advice should come from the holder of the original representation order.

Invariably, original trial counsel will advise no appeal and say everything was ‘fine and dandy’ with the trial. The only option for a wrongfully convicted person is get fresh legal advice. That is what the legal aid system is for. An auditor recently commented that when the new regulations came in the LAA didn’t think they would have many appeal cases going forward – as if miscarriages of justice would suddenly just disappear.

In many cases, funding extension applications will be made. The LAA grant extended funding and firms rely on those grants to get on with the job.

Despite this, auditors are now seeking to go behind such decisions. The LAA is pressing firms to explain every single point of a previous advocate’s views and undertake disproportionate case assessment research in every case to prove the ‘sufficient benefit’ assessment to an inappropriate level.

Firms can appeal to an independent cost assessor but this process equally seems flawed with different assessors’ reaching different conclusions on the kinds of issues raised in this article. This leaves legal aid lawyers in a wholly unsatisfactory situation.

And what does this effectively mean for an appellant if these restrictive rules are imposed in their current form across the board? The pool of Criminal Appeal Lawyers will quickly diminish.

• You will not get legal aid if you have any form of appeal or CCRC application currently running.
• The LAA wants you to have good grounds before you even instruct a lawyer.
• The LAA will take your original counsel’s advice as set in stone unless you have clear evidence to contradict it (to objective certainty).
• The LAA will make your lawyer effectively determine your appeal to avoid funding your case at the outset.
• The LAA make it almost impossible for you to get funding if you have had more than one previous appeal lawyer.
• Your solicitor cannot rely on a grant of extended funding by the LAA who may go behind it at a later stage.
• The LAA, it appears, doesn’t think there is a miscarriage of justice problem in the UK.

What should you do? Don’t blame your current lawyer who may be trying to help you but raise your objections in the strongest possible terms over these unlawful and irrational restrictions on access to justice with the LAA. If you are a lawyer who is facing aggressive auditing from the LAA, you should consider fighting such auditing. We are aware of a number of firms now interested in bringing a judicial review.

A line in the sand has to be drawn over these audits. We owe it to those who have suffered miscarriage of justice to not allow the Ministry of Justice, through the LAA, to effectively destroy the opportunity for those most in need to access good quality legal aid representation .