This is an extract from our response to the legal aid consultation paper dealing with
“Procurement of Criminal Legal Aid services”
Duty and Own Client Contracts
This split has never applied to any contract previously. This proposal does not have the support of solicitors firms despite the stance taken by the Law Society in capitulating to the proposal apparently under threat of something more sinister. The Law Society had no support or mandate for that decision and the criticism of it for taking the stance it did has been widely publicized.
Even the Big Firms Group does not support this approach. Letting Duty Contracts separately from own Client contracts is a divisive and unnecessary approach to the provision of criminal legal aid services. Many firms will struggle to survive without duty work. This is more so in the large urban areas such as London where the population is more transient and firms have a higher number of duty clients. However, building a client base of own clients often starts with providing advice as a duty solicitor and receiving return work or recommendations as a result of having provided a good service to that client. This will be lost to firms without a duty only contract.
It is likely that the loss of revenue to many firms of not having a duty contract will so fatally undermine their business as to render it unviable. Small and medium sized Enterprises will close in their hundreds as a result. Bigger firms will struggle with these contracts given the insultingly low fee on offer. It is simply not possible to provide a reasonable service to clients on the fees so large or small firms will ultimately fail or cease to employ qualified staff. Quality will suffer.
It is impossible to answer the consultation in anything but broad terms because the proper facts are not known to any party including the Government. The Otterburn report will be instructive and it is an example of the indecent haste to produce this consultation document that we are now seeking to respond to matters about which nothing is known in detail.
Keeping the Public Defender Service despite it higher cost than private practice does not demonstrate a concern for wasting public funds. The PDS should not be given an advantage over private practice and should be closed as it cannot demonstrate that it is good value for money for the tax payer.
No comment can be made on procurement areas, size of contract, type of supplier as the is no information upon which to make any comment and no information upon which Government can base any proposal. It is of course common to pilot such new initiatives. No pilot is to take place in this instance which flies in the face of normal Government policy on such issues.
How is the current system of fixed fees “overly complex and administratively burdensome”? It is a system of fixed fees and applies in the police station, magistrates court and Crown Court as will the new system of fixed fees. Simplifying it by reducing the number and size of the fees does not make the new system better or easier to manage. Indeed there are issues with some of the simplifications that will increase the burden on administration within the LAA, particularly in relation to Magistrates Court cases.
In short the argument that the fee structure needs to be simplified is nonsense and a lie used to justify a fee cut.
Police Station Fixed Fees
Paying the same national fee for every police station is not acceptable. It operates against areas where the crime investigated is more complex and time consuming such as London. Mr Grayling, when speaking to the Justice Committee in mid October 2013 said that the fee structure for police station payments paid a different fee per police station for no apparent reason. It is not possible to be that stupid or uninformed about the history of the funding that you are seeking to cut and still maintain any position of authority. If Mr Grayling does not know why the fee is different per police station, he is not fit to hold the office which he does. He should be enlightened. If no-one in the MOJ knows the answer either, we will enlighten you. If he does know the reason, he lied to the committee.
When fixed fees were introduced into police station work, the fee was set at the average cost of all cases undertaken at that police station in order specifically to reflect the fact that different areas had different crime profiles (in particular London), the level and seriousness of crime was considerably different to less populated areas. Equally in some rural areas, travel time was higher than in urban areas. It is obvious that in London there is more serious crime than there might be in, say, Pembrokeshire. It is equally obvious that more serious crime takes longer to investigate and suspects are kept in custody for longer periods and questioned over longer periods. Therefore more work is required by the solicitor and the fee for that work should be greater to reflect the extra work required on average.
To equalize fees will adversely areas where there is a higher level of complex criminal investigations and London in particular. Equalizing the fees and then cutting the average by 17.5% produces a 34.6% average cut to all London police stations. This is simply unacceptable.
It is simply not possible to provide a service to clients at £160 per case. Even the simplest case in London will take no less than 3 or 4 hours including travel time. It is rare to be in and out of a police station any quicker and the delays are never the fault of the solicitor. The police run the investigation and are in charge of the time that it takes.
In some cases, many hours are required. In terrorist, serious crime cases (such as murder or drugs investigations), the suspect can be in the police station for several days. It is likely that in these cases, on every occasion, the adviser will be working for a figure below the minimum wage. Thirty to forty hours is not unusual for a terrorist or murder case. At £160 this could be £4 per hour
It is not acceptable and will undermine the trust of the suspect in his lawyer. No-one could feel comfortable knowing that their legal adviser is being paid less than he would if he worked in McDonalds.
The fee is far too low. The equalization is prejudicial to London and other urban areas and disincentives representation in serious cases – those that need it most and at the highest level. The quality of advice will fall as paralegals will be used in preference to solicitors especially on the more serious cases. The costs threshold insures against this to a limited extent and has to be maintained in any modification of the scheme.
It is also the case that the fees now suggested are below what would have been available to a bid of minus 30% under the previous PCT proposals in London. The situation is absurd and completely unjustifiable.
To replace the simple fixed fee structure in the Magistrates’ Court with one flat fee is preposterous. It produces a much greater cut than the advertised 17.5%.
Currently there is a fixed fee structure which has worked reasonably well since 1993. There is scope to claim a lower fee or a higher fee or if a lot of work is done to claim a fee commensurate with the amount of work done and the fees are higher for trials than guilty pleas. Under the new system the one fee will be of £258.71. There will be a threshold at which you escape fixed fees.
However, the fee structure provides a stark financial incentive to represent clients who will plead guilty at the earliest opportunity and not trouble the court with a trial. Solicitors must put their clients’ interests before their own financial interest in the advice that they provide but the fee structure is designed to put pressure on legal advisers to advise guilty pleas early in the case. This is deliberate as per the quote from Lord McNally mentioned above. It is immoral. The fees payable are so limited that firms will struggle to survive financially if they frequently have clients running trials.
Clients are already advised to plead guilty early if that is appropriate as they will receive more credit on sentence. However, providing a financial inducement in this way is wrong. There is a huge financial disincentive to represent any client on a trial or on any case of complexity where more than minimal work is required (e.g mentally ill clients, foreign nationals, children)
The reduction on a guilty plea for a case which could be tried in either the Magistrates court or the Crown court is between 5% and 50% (the former figure on the previous lower fee so this would be the case where the case was dealt with in one hearing). For a guilty plea on a summary only matter the fee increases by 16.75% against the previous lower fee (so for a one hearing case) but decreases by 45.8% on a previous higher fee case (where more work was required). However, for a trial the reduction is between 31.6% and 67.36% (depending on which fee would previously have been appropriate).
This flat fee is also lower than the previous PCT proposals. Overall the average cut is 34.45% not 17.5%.
There is also a hidden cost. The threshold is important and has been accepted as such as it has been maintained. However, it is now likely that in many more trials, the case will cross the threshold and have to be assessed by the LAA thereby increasing their administrative burden rather than decreasing it.
Crown Court cases under 500 pages of prosecution evidence
The new structure pays a series of flat fees (one per case) depending on the nature of the offence and whether the page count is in one of 5 bands of 100 pages. There is no differentiation between trials and guilty pleas.
Mr Bird produced a schedule of these fees for the LCCSA which is included in their response (and attached to ours). It takes the fee currently payable at each category of offence for guilty pleas, cracked trials and a three day trial with page counts of 100, 200, 300, 400 and 500 exactly and compares the fees with those to be paid in each band under the new proposals.
The result is stark. There are significant financial advantages to the lawyer if their client pleads guilty and huge reductions in fees if their client takes the case to trial.
Here are a few typical examples:
• A fraud case where the value of the fraud exceeds £100,000 with 500 pages, the flat fee would be £2837.50. This represents a reduction of 40% against the current fee payable if the case were a three day trial and an increase on the current fee of 7.6% if it were a guilty plea. A trial of this nature may take 50 to 80 hours depending on the complexity.
• In a rape case with 500 pages, the fee is £5331.67. The preparation for such cases is quite likely to exceed 100 hours. This fee is a reduction of 33.29% on the current fee for a three day trial but an increase of a massive 75% if the case were a plea when much less work would be required.
• On an assault case (ABH) with 200 pages of evidence the new fee is £1139.17. This represents a cut of 57% on a three day trial and an increase of 19.6% on a guilty plea. This is a common scenario and it is likely that one might expect a solicitor to do a minimum of about 25 hours in preparation for a three day trial.
• A burglary case with 300 pages of evidence. The new fee is £1220. This is a reduction of 56.5% on a three day trial fee and an increase of 17.8% on the current guilty plea fee.
• Causing death by careless driving while under the influence of drink. In such a case typically there may be about 300 pages of evidence. Often the client may never have been in trouble before with the police and will be facing a prison sentence of some length and the ruination of their career and family life. These cases involve expert evidence which can be highly technical and a three day trial is likely to take about 35 to 50 hours of preparation. The current fee is £4281.50 and this would be reduced by 46% to the new flat fee of £2311.67. The same fee would be payable for a guilty plea on which much less work would be required which is an increase on the current fee of 32.2%
Overall the decreases for trials run from (with one anomaly – a murder with only 100 pages of evidence!!!!) 21% to 73% with most cuts in the region of 50%. The fees for guilty pleas run from cuts of 20% to increases of 107% with most cases being an increase on current fees of around 30%.
Overall these fees produce an average cut of 19.5% not the 17.5% stated by Government.
It has to be understood that it takes time to prepare a case properly for trial. This is why until now it has been accepted that it is appropriate to pay a higher fee to the lawyer for preparing a trial than a guilty plea. There is no incentive to advise a not guilty plea as the extra fee requires a lot of extra work.
The following are basic steps in the preparation of any trial:
• Read the evidence – as a rough guide it will take you about 2 minutes to read a page of evidence properly.
• Make notes on what you are reading,
• Prepare schedules of the evidence which cross-references it and highlights anomalies,
• produce chronologies that draw the evidence together,
• consider the application of the law to the evidence,
• take instructions on the evidence from a client who may be in custody (add 2 hours per visit due to travel and security issues) or may have any number of different problems from being highly stressed to mentally ill or on occasions dangerous to you as an individual.
• You will need to trace and interview witnesses for the defence either character or to the facts of the case. Often they will not come to you so you have to go to them.
• You have to advise on the strength of the evidence, the difficulties the client faces in running a trial, the likely sentence if convicted or if they pleaded guilty at an early opportunity.
• You will need to consider the unused material and draft defence statements, and documents in opposition to prosecution applications to introduce hearsay or bad character evidence.
• Experts may need to be located, instructed and met in conference.
• Advocates need to be briefed and the case discussed as it progresses as well as meeting the client in conference with them to discuss the case.
Proper preparation of trials takes time. If each one loses your firm money, it is likely that the more junior staff will be allocated to undertake this work.
The quality of justice for those who find themselves on the wrong end of the law, especially if they are innocent, will deteriorate with these proposals as firms have to seek a balance between providing a service to their clients on the rates to be paid and remaining, if possible, a financially viable business.
The message to lawyers from Government is: get your clients to plead guilty as early as possible and do as little work as possible on the case. Every trial will be run at a loss especially if it is properly prepared.
As stated above the fees are unsustainable and Des Hudson, the Chief Executive of the Law Society, has said that he does not believe that solicitors can represent their clients to the requisite professional standards on these fees.
It is an analysis of this nature that brings to the surface the concern that the fee reductions are not about austerity at all but about control over and interference in the ability of defendants to receive a fair trial if publicly funded. It belies the attitude of Government that all defendants are criminals and not deserving of public funds and those that represent them are an irritant to the course of justice deliberately putting hurdles in the way of the prosecution in order to secure unwarranted acquittals.
One might be able to write this attitude off as paranoia until you see the very words of Lord McNally that fees are equalized “to encourage prompt resolution of cases in a way that is consistent with our overall CJS objectives”. Writ large is Government policy: we want to financially incentivize lawyers to get their clients to plead guilty as early as possible. This is disgusting and not worthy of a dictatorship let alone a Government of a country which considers itself a beacon of democracy and justice.
As stated above this fee structure deliberately places the interests of the adviser into conflict with the interests of the client. This potentially causes a problem in every case where a guilty plea is advised. In any case where a solicitor has a conflict of interest with his client, that conflict has to be discussed with the client and a decision taken as to whether the solicitor can continue to act for that client. We submit that under our code of professional conduct we are bound to identify a potential conflict in every case where we advise a guilty plea and there will have to be a conflict of interest discussion with every client who is being advised to plead guilty. There may be cases where we will have to withdraw from acting as a result of that conflict especially if the client’s trust in the solicitor is undermined by the fact that the solicitor is being financially incentivised to advise a guilty plea. This is a matter for the Law Society and Solicitors Regulation Authority to consider very carefully. It simply should not be the business of Government to interfere in the work of defence lawyers and to create such unnecessary problems in this way.