On 7 April 2021, the Ministry of Justice (MOJ) published its response to the consultation on remuneration for pre-charge engagement. The consultation followed the recent update to the Attorney General’s Guidelines on Disclosure which recommended that pre-charge engagement between the prosecution and the defence may be appropriate in some cases. Whilst this work is clearly beneficial to the effective operation of the criminal justice system, it is not remunerated under the current Criminal Legal Aid scheme. The consultation sought views on the government’s proposed approach to remedy this. The Crime Contract Amendments come into force on 7 June 2021 and allow agreed pre-charge engagement work to be charged at the hourly rates set out in the Criminal Remuneration Regulations.
In 2018, the Attorney General’s Office published its review of disclosure in the criminal justice system. The review recommended that the Attorney General’s Disclosure Guidelines should include guidance on pre-charge engagement and that the MOJ should review how such work is remunerated, once the relevant guidance on the scope and content of pre-charge engagement was implemented. These guidelines were published at the end of 2020 and defined “pre-charge engagement” as a voluntary process of engagement between the parties to an investigation that can take place any time after the first Police and Criminal Evidence Act 1984 interview and before any suspect has been formally charged. You can read our summary of the Attorney General’s Disclosure Guidelines here.
In order to remunerate legal representatives for undertaking pre-charge engagement work for clients who rely on legal aid, the MOJ proposed a new unit of work, with an upper limit. Under this scheme, it was proposed that defence practitioners are to be remunerated where it has been agreed between the relevant parties that pre-charge engagement may assist the investigation and a full written record of the discussions has been made. This proposal was duly put out to consultation.
In the MOJ’s response to the consultation, it identified three main themes raised by consultees:
- The need for a “written agreement” between the relevant parties before pre-charge engagement can be provided means that in the event of a difference of opinion, which results in a failure to reach agreement on the appropriateness of pre-charge engagement, no payment can be claimed. In addition, the requirement creates an unnecessary administrative burden for practitioners. In response, the MOJ confirmed that the agreement can be informal, but will require a file note detailing an oral or written agreement on which a pre charge engagement fee is to be claimed.
- The MOJ’s estimate of average time spent on pre-charge engagement (1 to 2 hours) was unrealistic. In response, the MOJ set out the basis for its estimation, namely that pre-charge engagement would only take place in 1% to 3% of police station attendance cases. The MOJ agreed for some cases, pre-charge engagement will take longer than others because of the needs of individuals who might require interpreters or appropriate adults. However, while there is an upper limit on pre-charge engagement that can be self-granted, claimants will be able to apply for an increase to this limit via the LAA where appropriate.
- Most respondents had concerns that the fees proposed for this type of work were low and not sufficient. In response, the MOJ noted that in terms of the level of hourly rates, this was not in scope for consideration in this consultation. This is reflected in the fact that the rates are the same as currently set out in the Criminal Remuneration Regulations. However, the MOJ did commit to undertaking an evaluation of the volumes of work and whether the proposed hourly rates and the upper limit fairly pays for the work done in due course.
The MOJ also responded to concerns that the proposal further reinforces the disparity between privately funded clients who have the means to pay for their criminal defence, and those without such means. However, the MOJ considered that as the Attorney General’s Disclosure Guidelines require at least informal agreement in all cases, whether publicly or privately funded, pre-charge engagement will only be undertaken where it is appropriate.
Overall, it is a positive and fairly momentous step that the MOJ has acted on calls for remuneration for pre-charge engagement work in the context of legal aid. For suspects who privately fund their defence, practitioners will dedicate substantial time and energy to pre-charge work. In order to reduce the imbalance within the system, suspects who fund their defence via legal aid should also be able to rely on access to pre-charge engagement between their representatives and investigators / prosecutors. It is only fair that said legal representatives are properly remunerated for that work.
However, concerns remain that the level of pre-charge engagement has been drastically underestimated by the MOJ, not only in terms of the number of hours of pre-engagement work that an individual case will require, but also in terms of the volume of cases where pre-charge engagement will be appropriate. This is partly due to the way in which the benefits of pre-charge engagement have previously been characterised by the Attorney General’s Disclosure Guidelines, which identified pre-charge engagement as a way of assisting the prosecution only. There will likely be cases where pre-charge engagement would assist the defence in bringing an early conclusion to proceedings but this has not been considered by the Attorney General or the MOJ in any depth. This imbalance of purpose may mean that there is a difference of opinion as to the merits of pre-charge engagement, for example, in a case where the police have a fixed view of a suspect’s culpability. It will also likely have impacted the MOJ’s assessment of the number of cases in which pre-charge engagement will be appropriate.
The fact that pre-charge work, often previously undertaken pro bono, is now being remunerated is a step in the right direction. It will, however, be important to monitor and review how often engagement is agreed, the volume of work this generates and the impact it has on the efficiency of police investigations.
The use of pre-charge engagement is one of the most effective tools in the armoury of a defence practitioner and can be particularly effective in cases involving children and young people under investigation. The YJLC has extensive experience in this area and will be sharing more detailed guidance on this area of work in due course. In the meantime, the YJLC is very happy to share best practice via the advice line for any practitioners who would like support in this area.
Criminal Defence Solicitor