Divisional Court strikes down irrational and unfairly made decision to cut criminal legal aid

A Divisional Court comprising Lord Justice Leggatt And Mrs Justice Carr DBE has allowed a judicial review challenge brought by the Law Society to a decision made by the Lord Chancellor to introduce a 40% cut to the maximum number of pages of prosecution evidence (‘PPE’) that count for payment of criminal defence solicitors. The regulations that introduced the cut will be quashed (p.143 of the judgment).

In practical terms, the cut has meant a significant amount of work on the most complex Crown Court cases has been unremunerated since December. 

The Divisional Court’s judgment is critical of the way the Lord Chancellor’s decision was made. In particular, consultees were not told about or shown the analysis of costs trends officials had prepared for the Lord Chancellor on to answer the “crucial question” of whether a cost judge’s decision had caused a substantial increase in LGFS costs and undermined the policy intention of the scheme (para 93). The Court observed “no reason – let alone a good reason – has been given for not disclosing during the consultation process the LAA analysis and its results…” (§86), and concluded: “the failure to disclose this information was a fundamental flaw in the consultation process which made it so unfair as to be unlawful” (§97)

The Court also held (§94): 

“It should also go without saying that consultees are entitled to expect that consultation documents will not be positively misleading.  When a draft Impact Assessment is published which purports to set out the “evidence base” for the proposal, including an analysis of costs and benefits and a statement of key assumptions and risks, the reader would understand that any analysis relied on to estimate the increase in expenditure which it was the policy objective to reverse was described in the Impact Assessment.  The fact that the responsible Minister has certified that the Impact Assessment “represents a fair and reasonable view of the expected costs, benefits and impact of the policy” would further reinforce that understanding.”

As to the Lord Chancellor’s arguments that consultees ought to have deduced there was an analysis and sought it, the Court stated (para 93): “It is difficult to express in language of appropriate moderation why we consider these arguments without merit.  The first point, which should not need to be made but evidently does, is that consultees are entitled to expect that a government ministry undertaking a consultation exercise will conduct it in a way which is open and transparent.”

The Law Society was represented by Dinah Rose QC and Jason Pobjoy, and John Halford of Bindmans LLP.

For recent press coverage see here and here.

A copy of the judgment is available here.