The Criminal Legal Aid Protocol and a Moral Quandary

It is unlikely to come as a surprise to readers of this blog that there is at present a ‘boycott’, by many firms who do criminal legal aid work, of work done at new legal aid rates. The background to this action, which will be referred to as the protocol in this article, is that on 01/07/15, new rates of pay began for criminal legal aid work. The new rates constitute an 8.75% cut from the previous rates, which themselves were 8.75% lower than the rates before that. Prior to these two cuts, the criminal legal aid payment rates had not increased for twenty years.

Many criminal legal aid firms have made a calculation that they will not or cannot work at the new rates: some feel that it is simply not possible adequately to represent their clients when the payment is so minimal.

It is hard to assess the number of firms participating and the number of firms refusing to participate in the protocol; however, it is clear that many firms are participating whole-heartedly. The magnitude of this participation should not be underestimated. Criminal legal aid firms do not, in general, operate with a significant profit margin or with large reserves of money which might constitute a ‘fighting fund’. Therefore, the financial risks to many firms of this protocol, now 14 days old, is very considerable. It is a reflection of how strongly many firms feel about the new legal aid rates that they are willing to participate in the protocol which may, for some firms, have very severe financial consequences.

The protocol is not without its moral concerns. Some struggle with the idea of leaving clients in the police station to be represented by the duty solicitor, some of whom may be vulnerable or who may have been clients of the firm for many years; many struggle with leaving defendants unrepresented in court.

But on the other side, some firms have in fact seized this protocol as an opportunity to grow their business. There are reports and rumours from many courts across the country: not only are some firms continuing to represent their own clients – which is disappointing to those firms who are participating, but is entirely within the rights of the participating firms – but they are attempting to ‘poach’ unrepresented defendants who would, but for their firm participating in the protocol, be represented by someone else.

Not only is this unethical and morally questionable, it also, in many cases, may be contrary to the SRA Solicitors’ Code of Conduct. In particular, outcome 8.3: ‘you do not make unsolicited approaches in person or by telephone to members of the public in order to publicise your firm or in-house practice or another business’.

While it is easy to understand why a firm would refuse to participate in such an action – as every firm will no doubt feel the financial pain of such a decision, and some may consider that the possible outcome of the action would not justify the financial pain of the protocol itself – it is much more difficult to understand how some firms are actively trying to profit at such a moment, by taking other firms’ clients.

Whatever the outcome of the protocol, however, it has undoubtedly already had positive impacts. It has brought much of the profession closer together, and indeed united much of the criminal Bar with criminal solicitors; and the firms have sent a strong signal to the public and to the Ministry of Justice that the importance of access to justice cannot be ignored. The firms who have participated and who continue to do so should be saluted for that.

The views expressed do not necessarily reflect those of the firm or its partners.