LNB news: Ministry of Justice publishes response to pre-charge engagement consultation

Lexis®Library update: The Criminal Legal Aid review proposed a new unit of work with an upper limit for advice to remunerate defence legal representatives for work undertaken in pre-charge engagement (see: LNB News 29/03/2021 110). Twelve responses were submitted, all of which originated from the legal profession. 66% of responses were from individuals and 33% were from representative bodies.

The proposal was met with some scepticism regarding fee rates, the potential for additional bureaucracy and clarity regarding VAT. The government responded by stating that it will undergo an evaluation to determine whether the proposed hourly rate and upper limit constitute fair remuneration. With regard to the added bureaucracy of obtaining mutual agreement from both the defence and prosecution for pre-charge engagement, the government responded by indicating the agreement can be informal and may take the form of a file note detailing an oral or written agreement. Furthermore, the government clarified that fees documented in the original consultation were exclusive of VAT.

In response to some consultee comments, the government clarified that letters of representation and free-standing letters to the Crown Prosecution Service urging them not to proceed with a case did not fall within the definition of pre-charge engagement.

75% of consultees commented that the assumption that one to two hours of work would be representative of the average time spent on pre-charge engagement was incorrect. The government reiterated that it projected pre-charge engagement would take an average of one to two hours.

Consultees felt that vulnerable groups and people requiring interpreters may be negatively affected by the proposals if unaccompanied by appropriate adults and solicitors, and pre-charge engagement may take longer with these groups. The government acknowledged that pre-charge engagement may take longer in these cases, and that claimants will be able to apply to the Legal Aid Agency (LAA) for an increase on the upper limit to fees where appropriate.

Consultees also felt that adverse equality impacts could be mitigated by remunerating solicitors for all the work they undertake, and some believed that allowing solicitors to authorise the use of interpreters and mental health professionals without having to apply beforehand to the LAA would be beneficial. The government stated that the LAA’s existing systems should be utilised to authorise funding on a case by case basis.

Respondents to the consultation held the view that the proposed changes would explicitly disadvantage publicly funded defence solicitors as, in order to receive remuneration, agreement would have to be reached between relevant parties. The government’s view is that the Attorney General’s guidelines, which place an obligation on the police to engage in pre-charge engagement where it is appropriate to do so, are a sufficient protection.

The consultation document can be found here.

The full text of the government response can be read by following this link.