VHCC fee cuts: A sign of things to come in criminal defence work?

Having been engaged in fieldwork over the last 6 months, I've neglected to keep up blogging. With a new year approaching, I'd like to try and renew it with more posts - so here's the first.

Today, a variety of changes kick in relating to the funding of criminal legal aid in England and Wales. Chief among these is a reduction of 30% (possibly more in some cases) in the level of fee paid to lawyers for Very High Cost Cases (VHCCs) in criminal work. These involve lengthy preparation, complex issues, technical knowledge and extensive proceedings in court. They are the toughest cases and thus are generally handled by the best practitioners. VHCCs usually involve serious offences such as fraud, terrorism, murder, sexual offences, drugs, etc. Any threat to the integrity of these criminal cases is therefore of great significance.

The cuts in fees affect legally aided VHCC work - in short, those who cannot afford to pay to defend themselves and are reliant on the state. In light of the large reductions in effect from today, an indeterminate but apparently significant number of criminal defence advocates will be returning ongoing VHCC work and refusing future briefs. The concern this raises is that defendants in VHCCs will not be able to obtain representation, effecting the fairness of trials. 

An example of this was recently cited by retired Court of Appeal judge, Sir Anthony Hooper. In R v P [2008] EW Misc 2 (EWCC), a convicted drug dealer faced confiscation of the proceeds from his offences. The values involved ran into the millions and the issues were complex. No lawyer could be found to represent the defendant due to the low fees, 'deemed' (as the Bar's terminology expresses it) as insufficient remuneration for the level of work involved. It was held that the proceedings should be stayed as the defendant could not have a fair hearing. The confiscation therefore did not take place.

This case may represent an harbinger of trouble to come. If the logic of the judge in R v P is followed, potential offenders may escape justice if left without representation in VHCCs involving serious matters. Equally, if proceedings are not stayed, unrepresented defendants may be faced with serious challenges to their Article 6 rights. Judges will have to deal with this; delays may be caused; appeals will likely increase; miscarriages of justice could occur.

The Government has expressed its confidence that replacements can be found in place of those lawyers rejecting the fees. Presumably, these 'supply' lawyers will not be of the same quality; after all, if large numbers of the best representatives turn their back on VHCCs, why would anyone at the same level, with the same experience, choose to fill the void?

Those with something to gain from this situation are the less experienced (and possibly less able) defence lawyers, who see the opportunity to act in a VHCC as being more valuable than the fee offered. As such, one would logically presume that the quality of VHCC representation would inevitably diminish. This in turn implies that the Government's insistence that its reforms to legal aid will not damage quality cannot be accurate. 

The VHCC cuts and their aftermath may therefore represent a test-run for the broader roll out of fee cuts next year, which may only leave two outcomes for defendants: no representation or poorer representation.