Birds Solicitors
Response to Consultation Document
Transforming Legal Aid
3rd June 2013
About the Firm
Birds Solicitors is a firm of criminal defence specialists. The firm was established on 2nd October 2000 and deals with crime at all levels from the most mundane to the most serious of cases. We act in serious fraud cases (we were members of the defunct Serious Fraud Panel and VHCC Panel) and are therefore regularly involved in VHCC cases.
Our client base extends beyond the locality although we have a large core of clients from south west London and therefore are a vital resource for the disadvantaged members of society in that area and in particular the local youth. Gang culture is unfortunately rife in this part of London and many of these young men find themselves in our office, some more regularly than others.
We have a specific expertise in protest work and animal rights in particular. We are one of a small number of firms of choice for animal rights protestors arrested throughout the country and regularly deal with cases, large and small, at distant court locations. In this context it is not uncommon for us to represent multiple defendants. These cases have included three VHCC cases in the last 4 years. We have acted in other protest work including the student protests, environmental protests and relatively recently represented 25 of the 35 people arrested during the forced eviction of the Dale Farm travellers site in Basildon.
We have a national reputation for appellate work and applications to the Criminal Cases Review Commission. We constantly have an appellate caseload of approximately 50 plus cases and run this via highly qualified solicitors and do not rely on less experienced paralegals. We have been responsible for overturning numerous convictions many of which have been referred to the Court of Appeal by the Criminal Cases Review Commission. We also represent claimants in applications for compensation from the Home office for miscarriages of justice. We also have a small prison law department of two solicitors.
We have 22 solicitors, 15 of whom are duty solicitors and 7 are higher courts advocates, two legally qualified paralegals and four support staff. Steven Bird is the co-author of the Police Station Advisers’ Index (in its 4th edition) and has contributed chapters to Taylor on Criminal Appeals (2nd edition) and a publication on the CCRC by Michael Naughton. We provide a monthly service of articles to Westlaw and JustCite. Mr Bird is on the editorial board of LexisNexis PSL and a committee member of the London Criminal Courts Solicitors Association (LCCSA) and the Criminal Appeal Lawyers Association (CALA) of which he is Treasurer. The firm deals solely with criminal law although since early 2009 has introduced a prison law department.
We are highly recommended in the top tier of both the Legal 500 and Chambers & Partners directories as one of the top firms in London for criminal work. Both Steven Bird and Tim Greene are highly recommended in Chambers & Partners as individuals and Steven Bird is also listed as a leading individual in the Legal 500. Claire Bostock is recommended in Chambers and Steven Bird, Tim Greene, James Nicholls, Martyn Fisher and Evans Amoah-Nyamekye were all recommended in the recent first edition of SuperLawyers.
We believe that we are a firm which has a deep understanding of the criminal defence field including the business viability of the current proposals. Because our cases range from the minor to the most serious, from the police station to the Magistrates Court, the Crown Court and into the Appellate Courts, we are qualified to speak about the system as a whole and would be a firm which the Government might expect to be likely to bid for Contracts. We state now that under the model proposed in this paper, we will not bid either as an individual firm or as part of a group as the proposals are not financially viable for any firm, however constituted, if that firm is to retain any professional integrity. If the proposals are followed through, it is unlikely that we would be able to continue to operate as 85% of our turnover comes from legally aided work.
Ministerial Foreword
It is unusual to comment on a Ministerial Foreword in any consultation document but this one is extremely worrying in its inaccuracy and cannot go uncorrected. Mr Grayling appears to have been very badly briefed and it is deeply troubling that the whole basis for the paper is based on misconceptions that one might expect from a tabloid newspaper but not from the Ministry of Justice. This is too serious to be driven by sound bite over evidence. The Lord Chancellor informed the Law Society Gazette that Price Competitive Tendering (“PCT”) was not a matter of ideology but a “financial necessity”. We are pleased to hear that it is not an ideology of this Government as it can be swept away more easily if that is the case. We do not believe that it is a financial necessity either for the reasons set out below.
The Minister makes the following assertions upon which we wish to comment:
1. “Access to justice should not be determined by your ability to pay, and I am clear that legal aid is the hallmark of a fair, open justice system.”
We agree with this opening comment. The problem is that the proposed system will do the exact opposite. Removal of client choice will lead to a lowering of quality for those who cannot afford to pay for their own lawyers. We may have developed a two tiered legal system as a result of 15 years of continual cuts and re-structuring but under these proposals it will become very much worse as those not able to pay will be allocated to and stuck with companies acting for them who they did not choose and for whom a trial will be a financial inconvenience. Even if you choose to fund a lawyer privately and win, you will not recover any of your costs if you would have been financially eligible for legal aid and will only recover costs at legal aid rates if you were financially ineligible. Justice should not just be for the rich. At the moment it is not, but under PCT it will be.
2. “Unfortunately, over the past decade, the system has lost much of its credibility with the public”.
When pressed by Catherine Baksi in his recent interview with the Law Society Gazette, Mr Grayling admitted that he had no actual evidence of this but had received a lot of letters and emails apparently unrelated to criminal legal aid. On the other hand the Bar Council commissioned a poll by ComRes which found that the public were largely supportive of criminal legal aid as a necessity in a civilised society.
The poll found that 71% of the respondents were concerned that cuts to criminal legal aid could lead to innocent people being convicted of crimes they did not commit if forced to use the cheapest defence lawyer available. It also found that 67% agreed that legal aid was a price worth paying for living in a fair society and 75% felt that the poorest would be hit hardest by the proposed changes. Furthermore 68% agreed that at less than 0.5% of annual government spending, “legal aid is a worthwhile investment in our basic freedoms”. This is hard evidence not unsubstantiated comment based on receiving a few emails.
3. “Taxpayers’ money has been used to pay for frivolous claims, to foot the legal bills of wealthy criminals, and to cover cases which run on and on racking up large fees for a small number of lawyers, far in excess of what senior public servants are paid.”
There are three points here. Criminal legal aid does not deal in frivolous claims. He is referring, it seems, to actions by prisoners or potential judicial reviews. Lawyers will take a view on certain claims and decide whether they are of sufficient merit to warrant public funding. This does not mean that every case taken on will win. Indeed it should not even be close to that as lawyers should be challenging the treatment of prisoners and seeking to hold public bodies to account, especially this Government who are regularly on the end of the judicial reviews of which they seek to limit the funding. Is there not just a slight conflict of interest here? In many judicial review cases, agreements are reached out of court and the matter is never tried. This does not mean that the claim is frivolous. A letter to the Telegraph by 90 eminent QC’s who engage in judicial review work deals with this point far more eloquently than we would be able to do (http://www.telegraph.co.uk/news/uknews/law-and-order/10085014/Leading-barristers-warn-over-legal-aid-cuts.html).
“Wealthy criminals” obtaining legal aid to fight their cases is a subject which is bound to draw some public attention. There was a time when legal fees could be paid from restrained funds and such funds often were used to fund a defence thereby not troubling the legal aid budget. The Government legislated in about 2001 so that restrained funds could not be used and the “wealthy defendant” had to turn to legal aid – they had no choice. A reversal of this restriction would most likely be welcomed by many although we would add the caveat that if acquitted all funds paid out should be reimbursed by the State. This is, we understand, before Parliament at the moment in the Crime and Courts Bill 2012/13. We would be interested to know what figure the Government expects will be saved from the legal aid budget once this Bill is enacted.
Cases which rack up large fees for a handful of lawyers way above what senior public servants are paid – it beggars belief that it can be a serious reason fundamentally to change a system to deal with a few large bills from a few defence lawyers working on very large and complex cases. If the Crown chooses to prosecute people and serve a room full of evidence, what are the defence lawyers to do but read it? It is called defending your client. We cannot understand why, if this is a major issue, we need to reduce the fees for defending the vast majority of small cases in both courts where the fees are already so small that further cuts are akin to hacking at the bone rather than trimming away any perceived fat.
We are equally baffled by the reference to the pay of senior public officials as it seems totally irrelevant. If I wanted to buy a pound of apples, would I be complaining because it cost more than a pound of pears? I suspect that these senior public officials, whoever they may be, are likely to be paid a fixed salary likely to be in six figures, be able to claim expenses from public funds, be entitled to pensions at public expense and even in some cases live in grace and favour accommodation. This is not a necessary, reasonable or relevant comparison.
4. “Under the previous government, the cost of the system spiralled out of control, and it became one of the most costly in the world.”
One would assume that “spiralling out of control” in this context can only mean the cost of the system is increasing year on year on year at a great rate. This is something that must be easy for the Government to prove and no doubt they will have looked at the historic figures before embarking on the drafting of the consultation paper and letting the Lord Chancellor make such a bold comment.
Surprisingly there is no single source for these figures but the LCCSA has collated them from various MOJ and LSC documentation. The concrete evidence shows that the spiral is downwards. The figures for 2001/2 to 2008/9 come from the Parliament website and show an increase from 2001/2 to 2003/4 but then the figure starts to drop and continues to drop and drop and drop. The figures are as follows:-
2001/2 £1.21 billion
2002/3 £1.31. billion
2003/4 £1.37 billion
2004/5 £1.35 billion
2005/6 £1.33 billion
2006/7 £1.26 billion
2007/8 £1.23 billion
2008/9 £1.21 billion
2009/10 £1.2 billion (source LSC press release)
2010/11 £1.14 billion
2011/12 £1.08 billion (PCT consultation document)
2012/13 £1.025 billion – projected figure in LSC business plan 2012/13 but likely to be as low as £950 million when finally published after the close of the consultation.
2013/14 £0.941 billion – projected figure from LAA 2013/14 business plan
What should also be borne in mind is that these figures include VAT so the Treasury gets back 15%, 17.5% or 20% depending on which year you are looking at. This means that when VAT went up to 20% from 17.5 % on 4th January 2011, there would have been an upward pressure on the cost of legal aid. The exact figure is hard to calculate but 2.5% of £1 billion is £25 million. In fact the figure for 2012/13, the first full year at higher VAT, is likely to come in as low as £950 million better than the forecast £1.025 billion. This figure was put to the LAA at a recent Criminal Contract Consultative Group (CCCG) meeting and was not disputed.
This has led to us having the most expensive system in the world: Apples and pears again. We have a different system to most of other European countries. The legal aid bill is likely to be higher in an adversarial system. The National Audit Office prepared a briefing report for the Justice Committee in February 2012 called ‘Comparing International Justice Systems’ which compared the cost of the criminal justice systems of countries around the world. This is the criminal justice system as a whole not just legal aid and would appear to be a much fairer comparison especially for a Ministry in charge of the whole system. The average national spend was 0.33%. The spend for England and Wales was 0.33%. Our spend is absolutely in the middle, right on the average figure.
5. “Earlier in this Parliament, the Government took significant steps to reform legal aid, to bring costs under control particularly in relation to civil claims. In the current financial climate, it is now necessary to make further savings by embarking on the next phase of reform, mainly focused on criminal cases.”
This suggests that criminal legal aid has been immune from cuts in the past or at least the recent past. That is simply not correct. There have been no increases in rates since about 1998 – no-one can quite remember when the last upward change was as it was so long ago but this is the conservative estimate. Criminal legal aid has suffered austerity measures for 15 years, right the way through the supposed boom times. There is no more to cut.
Many of the cuts come from re-structuring and where relevant the base rates remain the same as they were in 1998. Inflation, however, has not remained at zero and £100 in 1998 would be worth £153 today if adjusted for inflation.
As an example of what that means to legal aid rates, the London advice and assistance rate (the rate used in appeals and reviews work) for preparation remains at £49.70. Inflation adjusted from 1998 that figure would be £76.04. The Government proposes to cut this rate by 17.5% to £41 which in 1998 would have been £26.80 per hour. In real terms (inflation adjusted) the proposed cut to this rate is about 66% on where we were in 1998. They proposed rate is below that of most plumbers and car mechanics (if we are looking for comparators).
The cuts are so numerous it is difficult to remember them all but here are just a few:
• payment for more than one telephone advice call,
• routine telephone calls on police station work,
• enhanced rates on indictable only duty police station cases,
• enhanced rates on out of hours duty cases at the police station,
• payment for travel and waiting,
• payment for pre-committal based on what you had actually done, then a fixed fee of £318 (then nothing at all),
• enhanced rates in the Crown Court of 100% or 200% on serious fraud cases,
• not being financially penalised when your client elects Crown Court trail and either pleads or the Crown drop the case,
• not being financially penalised when this happens on a non-elected case by payment of a fixed fee which is roughly half of the trial fee having prepared the case fully for trial.
6. “The principles which underpin these proposals are simple: to ensure that those who can afford to pay do so; to make certain that legal aid is not funding cases which lack merit or which are better dealt with outside court; and to encourage greater efficiency in the criminal justice system to reduce costs.”
They may be simple. That does not make them right or fair. Simple is not always good or possible. The criminal justice system is not a simple process. We are not selling cans of beans or delivering a lorry load of bananas to a supermarket. We are dealing with the lives and liberty of those prosecuted by the State and who are already not on a level playing field against the might of the State. Simple is not enough.
Even Lord Carter said in 2006 that those firms working within the criminal justice system were some of the most efficient around. We have to be as the rates are so poor!
7. “The hardworking public pay for legal aid, and we must deliver a system which commands their confidence and spends their money wisely… This is a comprehensive package of measures to restore the public’s faith in the system”
The system already commands their confidence as evidence by the aforementioned ComRes opinion poll. The public does not need its confidence restored. We are also hardworking taxpayers.
8. “For criminal advocacy, we intend to reform the fee structure, to ensure that cases are resolved as quickly as possible, which will mean less time required of lawyers, and lower costs to the legal aid bill. The impact of these changes will also help remedy the great disparity which had emerged within the legal profession by reducing the payments to that small number of lawyers earning very high fees whilst protecting the majority of barristers who should not lose out as a result of our proposals. Indeed, some of the lowest fee earners will be better off.”
Financially incentivising lawyers to advise guilty pleas is abhorrent. It appeared recently with the elected cracked trial cases and is set to continue here. It sets the lawyer’s interests against that of the client and must be contrary to the SRA principles against conflicts of interest and the requirement to act with integrity. Given that there may be players in the market who are not firms of solicitors, integrity of the non-qualified worker facing targets to get as many pleas in as possible may become a real issue. It is not one we should even be contemplating. It is simply wrong.
9. “Though in Britain today we face serious challenges, this must not undermine our determination for reform or our desire to achieve the best value for the taxpayer. These proposals are bold but fair, and I look forward to hearing your views.”
So there we have it “bold but fair”. Others might say insane. The comments setting out the rationale for the paper are as evidence free as it is possible to be. You are now hearing our views. We hope someone will be listening.
The Financial Case for these changes
We are constantly told that we live in times of austerity and no-one can be immune from it (except MPs if the recent press is accurate). The Lord Chancellor has specifically said that the legal sector cannot be immune from cuts. As stated above criminal legal aid has been cut constantly for the last 15 or more years so we are well aware that the “sector” is not immune from cuts. The problem is that the cuts have been so deep that the supplier base is teetering on the edge of an abyss and the Government is standing behind them nudging them ever closer to the edge.
The foreword suggests a loose-ness or unfamiliarity with the actual evidence available in this area. The Government has set out that it wants to save £220 million by 2018-19 and believes that these radical changes are required to do that. This is simply not the case.
One would imagine that someone within the MOJ would have made a reasoned calculation to come up with a figure as precise as £220 million. It can only have been calculated by reference to a percentage saving or a fixed sum saving either from a known base or to reach a set goal by 2018. The only other option is that it has been plucked out of the air at random and we are sure that the Government would not base policy on such a whim.
The paper was released on 9th April 2013 and was presumably drafted in the months leading up to April. What figures were available to work on at that time? The figures for the financial year 2011/12 had been published in the summer of 2012. The figures for 2012/13 have yet to be published and will not be available until after the consultation period closes on 4th June. At the time of preparing the paper the financial year 2012/13 had not ended so one can only assume that they were working on the 2011/12 figures which are the only ones referred to in the paper itself.
In 2011/12 the criminal legal aid spend was in very round figures £1.1 billion. The sum to be saved is neatly 20% of that figure. It would be a safe bet that the required saving was calculated at 20% of the spend in 2011/12. This is further backed up by comments at some of the MOJ road shows around the country when it was said that if not enough firms were to bid for PCT contracts an administrative cut of 20% would be imposed. Knee jerk rhetoric though this must have been, it does shed a bit of light on the likely calculations for the required savings. Knee jerk rhetoric it must have been because the MOJ accepts in the paper that continued administrative cuts would be unsustainable for the profession in the long term. This was also the apparent view of the MOJ representatives at the recent London road show presentation. They can hardly go on to make such a cut in the light of their own belief in its likely consequences.
Therefore we can infer that the MOJ wants to save £220 million from the 2011/12 figures by 2018. At some roadshows this was confirmed by the MOJ panel as correct (e.g. Birmingham). So where are we with savings since 2011/12?
The figures for 2011/12 do not reflect some of the cuts that had been introduced from 2010 to 2012. There have been so many that it is difficult to keep up. Four spring to mind: a 10% reduction in police station fixed fees, the abolition of the committal fee, the introduction of a tiny fixed fee for litigation and advocacy combined for elected cases that crack in the Crown Court and the further reduction in the advocacy fees.
The figures for 2012/13 are not yet available but a week after the consultation document was published the Legal Aid Agency published its business plan for 2013/14, the current financial year. The projected spend for criminal legal aid in this financial year is £941 million, a reduction on 2011/12 of £139 million (£1.08 billion – 941 million = 139 million). As stated above the CCCG met recently and the expected spend for 2012/13 was accepted by the LAA to be in the region of £950 million. This figure is below the projected spend in the LSC 2012/13 business plan which set the cost at £1.025 billion. However, we will soon know which of these figures is more accurate. If it turns out to be the case that £950 million is more accurate, the projected spend for 2013/14 will be pessimistic in Government terms and it is likely that the actual costs will be significantly less than the projected figure.
The most recent cuts will continue to affect the amount spent as will the continued reduction in the number of cases coming before the courts. Legal aid spending is reactive and when the level of prosecutions drops significantly, the spend will go down.
As mentioned above the fact that these figures include VAT seems to have been ignored. An expected spend of £950 million for the last financial year and the huge reduction on the previous year takes into account the fact that VAT increased from 17.5% to 20% on 4th January 2011. The rise in VAT should have led to an increase in the costs for that financial year probably in the region of £25 million but despite this hidden increase in cost, the actual spend has fallen by £130 million.
Has the MOJ considered what the effect of zero rating legally aided legal services for VAT might have on the profession, the criminal justice system or the Treasury? It would certainly reduce the MOJ budget by 20% in one fell swoop. We accept that it will not result in such a saving to the Government as a whole.
We would have expected the Government to be overjoyed at the effectiveness of their cuts in the criminal legal aid system to date and especially those in the last two years. We would have expected the Government to step back and take stock of the system as a whole and to consider from a reasoned perspective whether further cuts were necessary when they are well on target to reach the figures promised by Mr Grayling.
To be clear and using precise figures, a deduction of £220 million from the figure of £1.08 billion (the precise figure in the paper for 2011/12) means that the target figure including VAT for 2018/19 is £860 million.
It was reported in the Law Society Gazette on 17th May 2013 that, having been made aware that significant savings have already been made, the MOJ stated that the £220 million must be saved on top of what has already been saved: in effect £370 million on the 2011/12 figures – more than a third of the entire budget. This runs contrary to what was said by the MOJ at some of the roadshows. Mr Grayling seemed unsure about the figures when interviewed by Catherine Baksi for the Law Society Gazette on 20th May 2013 when he was still quoting the 2011/12 rounded up figure of £1.1 billion as the criminal legal aid spend. He was also quoted as saying that the fall in volume had not been matched by a fall in the cost of legal aid. He stated that “What we have is becoming more expensive” and in “very tough financial circumstances” introducing price competitive tendering “is not an ideological choice; it is a financial necessity.”
In this interview he sounded like a man badly briefed. The above comments are nonsense and are not supported by any of the evidence. As lawyers we deal in evidence not unsubstantiated rhetoric. As demonstrated above the cost of criminal legal aid is reducing year on year and in the last year or so has fallen dramatically. Criminal legal aid has been the subject of cuts for the last 15 or more years. There has been no rise in rates since about 1998.
It has recently come to our attention that the target figure may be closer to £800 million by 2018/19. This would be reached by aiming to save £220 million from the projected 2012/13 figure of £1.025 billion. This is not set out anywhere in the paper and, if true, is yet another figure to put into the mix. It is completely unacceptable that the Government consults on proposals of this nature and nowhere sets out in black and white what figure it wants to get to by 2018/19. It should be the starting point if the Government is interested in a transparent and honest dialogue through consultation. We have e-mailed a request to the MOJ to confirm what figure the budget is to be set at for 2018/19 so that we know exactly what the figure to be saved actually is.
The Minister seemed at the time of the Law Society Gazette interview to be off the pace on the figures. It seems to us that on the figures available and given the savings being made at the moment, the whole system of PCT is as unnecessary as it is unworkable. If the conservative target of £941 million is reached for 2013/14, the Government only needs to save a further £81 million in the four year period 2014-2018, which equates to £20 million per year. This is achievable but making no cuts at all as the down turn in volume is most likely to account for these savings in due course.
It may be that the system needs a review. However, it does not need urgent cutting as that work has been done and been done effectively. What is required is a considered and independent review of the Criminal Justice System as a whole, by Royal Commission or Public Inquiry, to review exactly where there may be savings to be made across the whole system. This may fall on legal aid, it may not.
The Lord Chancellor has lost the confidence and trust of the profession by not coming to them initially to engage in a constructive debate and to discuss the possibility of savings within the system. Bringing out this paper based not on evidence but misconceptions and allowing 8 weeks for responses is unhelpful and will get the response it deserves. It is not enough for him now to say that he wants alternative proposals from the profession. We cannot easily cost any alternative proposals and in fact further cuts are in danger of undermining the whole structure of criminal legal aid in any event as the supplier base is so fragile.
The criminal justice system works together and it is not a sensible approach to chip away at various parts of it as if they were unconnected. It all falls within the MOJ remit and must be considered as a whole. The savings required are miniscule in any event unless it is decided that goalposts will be moved to demand the £220 million on top of savings already made. This would be dishonesty of the highest order and we are sure that the integrity of the Lord Chancellor would not allow it to happen.
Eligibility, Scope and Merits
Restricting the scope of legal aid for prison law
Q1. Do you agree with the proposal that criminal legal aid for prison law matters should be restricted to the proposed criteria? Please give reasons.
No we do not agree with the proposed restriction.
It is our view that the current system involving the sufficient benefits test and where necessary prior approval from the LAA is sufficient to safeguard that legal aid funds are not spent on unmeritorious cases.
Recourse to the internal prison complaints system is not a sufficient safeguard for prisoners in the absence of the availability of legal advice. Issues of prisoner treatment are extremely important not only to the individual prisoner but to society as a whole as mis-treatment of people in prison cannot go unchallenged. The use of the complaints procedures for these cases and those removed from scope concerning re-categorisation etc is insufficient to safeguard the rights of those imprisoned to be treated fairly and justly within the system.
This is also likely to be a false economy as the number of matters referred internally to the complaints procedures would increase and presumably add further cost to the prison budget.
The current system allows for these cases to be monitored and only meritorious cases to be taken on under public funding. It seems incompatible with the human rights of prisoners to be refused public funding for a case which the LAA would currently consider worthy of public funds.
Imposing a financial eligibility threshold in the Crown Court
Q2. Do you agree with the proposal to introduce a financial eligibility threshold on applications for legal aid in the Crown Court? Please give reasons.
Q3. Do you agree that the proposed threshold is set an appropriate level? Please give reasons.
We do not agree with the imposition of a financial eligibility threshold in the Crown Court. If one is to be imposed, however, it needs to be high enough to ensure that those affected can actually afford to pay the fees. Currently that limit is too low.
The Law Society Gazette (30/5/13) reported that four out of five adults in England and Wales would be unable to pay for a lawyer were they accused of a crime, according to a survey by Populus commissioned by the six bar circuits and Criminal Bar Association. They would have to represent themselves or even remortgage their homes.
The poll showed that 80% of adults would be unable to afford the average £10,000 legal fees incurred for a three-day trial, and would be forced to represent themselves. Of the 2,036 adults who took part, 75% said that a person accused of a crime who cannot afford to pay their legal fees should be entitled to financial help.
This is important evidence of which the Government should take careful note. This is not rhetoric from lawyers but a poll conducted with members of the public, the same public that the Government claims has a loss of confidence in the legal aid system. This is further evidence, if any more were needed, that such a claim is incorrect.
The poll goes on to say that 64% of respondents said there would be more miscarriages of justice and wrongful convictions as a result of these changes to eligibility and 60%, said the cuts would hit those on middle incomes hardest.
We entirely accept that the limit is set at £37500 of disposable income for a household. As recently as 1st June, the Lord Chancellor has said that this would equate to an income of £100,000. We have seen no calculation to demonstrate this to be the case and suspect that the figure will be much lower.
The problem is compounded by the fact that under the proposals, costs could only be recovered by acquitted privately funded defendants at legal aid rates and only if they had applied for legal aid and been refused on means. Defendants would have to undertake an administratively expensive and wholly unnecessary exercise of applying for legal aid even where it is abundantly clear that they will not be eligible just to ensure they recover a tiny fraction of their costs.
This situation pertains in the Magistrates’ Court at the moment and is grossly unfair. It should be reviewed and repealed and not extended to the Crown Court where the discrepancies will become much greater. If the State chooses to prosecute a citizen for a criminal offence, denies them the right to a lawyer under legal aid but fails to convict them, it has to be incumbent on the State to compensate that person for the financial loss involved at the very least in their legal fees.
Given the removal of choice, it is most likely that other defendants will either represent themselves or seek to find ways of paying for lawyers of their choice even if eligible for legal aid. This will force people into debt and these individuals, if acquitted, will receive no return of their fees at all. This is unacceptable.
We would expect that the use of restrained funds to fund legal aid contributions will save money for the system. It would save more if these funds were able to be used to fund defences privately so that legal aid was not used at all in such cases. This would have to be coupled with full reimbursement if the case was not proved against the individual. We would be interested to know what this saving is expected to be and how much it will contribute to the required £81 million balance from 2014.
Introducing a residence test
Q4. Do you agree with the proposed approach for limiting legal aid to those with a strong connection with the UK? Please give reasons.
We do not agree that introducing a residence test is in any way appropriate. It would prevent individuals from accessing justice in a myriad of cases and is discriminatory and grossly unfair. As an example it is our understanding that this test would have prevented access to justice for the family of Jean Paul de Menezes which is perhaps the starkest example imaginable of why this test is completely inappropriate.
It is likely to adversely affect many of the most vulnerable people in society including children and those trafficked into the country. This is not an acceptable risk for the Government to take to save money.
Paying for permission in judicial review cases
Q5. Do you agree with the proposal that providers should only be paid for work carried out on an application for judicial review, including a request for reconsideration of the application at a hearing, the renewal hearing, or an onward permission appeal to the Court of Appeal, if permission is granted by the Court (but that reasonable disbursements should be payable in any event)? Please give reasons.
No we do not agree. This is plainly absurd. The numbers of cases that this would apply to is small and the potential savings vanishingly small. It is completely unacceptable to place such a financial risk at the door of solicitors. The case will be assessed for merits. Judicial review is an important check on the mechanisms of State and must be preserved at all costs. To make this change will discourage solicitors taking on challenges of this nature which will no doubt be of considerable benefit to the Government which often finds itself on the wrong end of such cases.
The case for these changes is simply not made out and the comments of the 90 QC’s signing the letter to the Daily Telegraph mentioned above adequately sets out the case against such changes and is a view that we fully endorse.
Borderline cases
Q6. Do you agree with the proposal that legal aid should be removed for all cases assessed as having ‘borderline’ prospects of success? Please give reasons
No we do not agree and it is mightily disappointing to see a Government suggesting that such cases should no longer receive funding when accepting that “the cases to which the “borderline” exception applies are high priority cases, for example cases which concern holding the State to account, public interest cases, or cases concerning housing.”
What more deserving cases are there of funding than those that challenge the State, are a high priority, have high public interest and relate to housing? It is disingenuous to limit such claims.
Introducing Competition into the Criminal Legal Aid Market
Even the title of this chapter is misleading and insulting. There is competition in the criminal legal aid market. This competition is based on quality of service to clients. Those firms who do not provide a good service do not have recommendations made to them or repeat business. This firm relies much more heavily on own client cases than duty allocated work and, as a result, is able to survive in a very competitive market and make a profit.
Case for reform
There is no case for reform. There is no financial case for it as set out above. There is no other case for it. Carter was rejected 7 years ago. The last Government sought to introduce PCT in about 2009 and realised that it would not work and could not work in the market for provision of criminal defence legal services. It cannot work now either. The market is too complex and the supplier base remains too fragile. If destroyed, as it would be under PCT, it will not be restored in the future. Once destroyed it is gone for ever and as Dominic Grieve said of the last PCT proposals:
“We really should be concerned about the lasting damage that could be done if we’ve got this wrong. It could permanently damage the provision of criminal legal aid”
These proposals are wrong and will permanently damage the provision of criminal legal aid.
One example of PCT that is not mentioned in the paper is that of the outsourcing of the interpreters’ contract or indeed that of tagging services. Both have been an unmitigated and utter disaster. The interpreters’ contract has caused untold delays and extra expense within the criminal justice system, often at the direct expense of criminal defence lawyers who do not get paid extra for each hearing aborted due to the lack of an adequate interpreter. More money has had to be paid to shore up the supplier.
The tagging contracts are under investigation for over claiming or in common parlance – fraud.
Economies of scale
It is irksome to hear the Minister say that these proposals will help small businesses. They will not. The suggestion is that businesses can “gear up” to take on larger contracts by merging or forming consortia or other such business structures. Economies of scale cannot be made in this way in most cases. The areas are so large that multiple office bases are likely and any consortia or merged enterprise would most likely have to retain numerous offices thereby making no savings whatsoever. If a merged business were to move into one office, this office would have to be paid for, adjustments made to adapt it for use as a large solicitors office, deposits for rent paid, leases for previous offices paid up to the next break clause, dilapidations paid for, equipment leases given up and paid up to the end of the term, moving expenses paid, signage and re-designing paid for in relation to stationery, websites etc, contracts for services paid up and new ones entered into, computer equipment replaced etc etc etc.
This firm has recently moved offices. We moved 100 yards. It cost us a considerable amount of money running up towards six figures. We had to adapt and furnish the new premises and pay dilapidations on the old premises. We were able to carry on certain leases but invested in new equipment, a new telephone system, internet provision, computer equipment and so on. Our new lease is for 12 years. We negotiated break clauses every three and a half years against the wishes of the landlord because we knew how uncertain the legal aid market is and how Governments love to interfere and seek “reforms” to the system on a regular basis – currently a major upheaval every three years and constant cuts in the meantime to keep things ticking over.
If these proposals come in, we will not bid. We will have until July 2015 to decide if we need to give notice to close the firm without incurring the expense of three and a half years’ extra rent. These changes are not cost free and the problem may be that those suggesting that firms can just gear up have never actually worked in business and know absolutely nothing about the impracticalities of their absurd suggestions.
There is talk in the paper of “firms having the confidence to invest in the restructuring required in the knowledge that they would be in receipt of larger and more certain returns” This is complete nonsense. There is only one certainty with these contracts: that you will go out of business. The contracts are for a short period, allow you access to a fixed percentage of an unknown amount of work of an unknown quality for which you will need to employ a large number of extra staff at extra cost and likely have to move premises at huge expense and for that you will be paid a very considerable amount less than you are at present.
Those firms with a good reputation who attract the good quality work and have a loyal and regular client following can only lose under this system. Factory processing of cases pushing everyone to a guilty plea on minor and uncomplicated cases only might give a firm an outside chance of survival. Survival not prospering. Although by the second round the price will have to go up as competition from the market will have been completely removed and only those with the first contracts will be standing if they have been able to survive that far.
Small and Medium Sized Enterprises
It is believed that these proposals in some way assist SME’s. The proposals will destroy over 75% of the 1600 SME’s currently providing criminal legal aid services. The rates are so poor and the “harmonisation” of fees for pleas and trials so absurd that it cannot sustain any size of business structure currently seen in the market. We are fed up hearing the argument about swings and roundabouts. With every consecutive cut, the roundabouts are being replaced with more swings (assuming swings are the bad piece of playground apparatus) and soon the playground will only contain swings or, perhaps more appositely by then, the swings will be removed and replaced with slides.
Q7. Do you agree with the proposed scope of criminal legal aid services to be competed? Please give reasons.
Q8. Do you agree that given the need to deliver further savings, a 17.5% reduction in the rates payable for those classes of work not determined by the price competition is reasonable? Please give reasons.
We do not agree with PCT at all and cannot therefore cannot agree with the scope of the services to be competed or the reduction on those not competed.
We have questioned the amount of savings that remain to be made. We have also made the point about pay cuts and freezing of rates since 1998 against an inflation rate of 53% in that time. Appeals and reviews is one area of work where a 17.5% cut is to be imposed. This will make the work even less viable than it is now. There is a reason why not many firms do this work: it is difficult, time consuming and very poorly paid. The rate remains as it was in 1998. The cut would be to reduce the rate from that figure by 66% when adjusted for inflation. This is unsustainable. However, the proposed contract will mean that every “winning” firm will have to undertake this work in as much quantity as comes to them. They have no choice and subject to the sufficient benefit test would have to undertake the work. It could only be undertaken at a loss even if undertaken by non-qualified staff.
This work is important and cannot be sidelined in this way. Numerous miscarriages of justice have been rectified via this funding route. If PCT comes in there will be a huge increase in miscarriages as firms will not be able financially to undertake the amount of work required in a trial when paid the same rate as a plea. The whole process mitigates against quality representation especially for anyone insensitive enough to the financial needs of the firm to insist upon having a trial.
Although not specifically stated in the document, it is understood that all winning bidders will have to provide advice as required under Appeals and Reviews and prison law. This will no doubt mean that solicitors of supervisor status will have to be employed by that firm. Currently there are few firms undertaking Appeals and Reviews work with any regularity and most firms will do their best not to deal with it as they do not feel they have the specific expertise to undertake that work. Currently it is possible to have a contract just for Appeals and Reviews work but it would appear that this will no longer be possible. It is something that we strongly object to as there may well be firms with this specific expertise who will not be able to or will not wish to (more likely) bid for a criminal contract but who may wish to continue doing Appeals and Reviews work. The rates on offer (£41 per hour in London) will be problematic and are likely to mitigate against this but the option should at least be available. There is no margin in £41 per hour (indeed it is likely to be below cost) and therefore no margin to be made by providing services to a contracted firm as an outsourced agent.
It is also bizarre that in these cases the client will have a free choice of lawyer regardless of geography and the firm will not be able to refuse to take the case if it passes the sufficient benefits test. This is even more bizarre when you realise the current antipathy of the LAA towards firms representing clients on these cases in distant prisons but may be explainable by the idea that disbursements are not remunerated. It is not clear if this concept extends to Appeals and Reviews work.
This is specialised work. The LAA is aware that there are few firms nationally providing a quality service in this area and that dabbling in it is rather dangerous and provides the client with no service at all. Indeed it is a positive dis-service as once badly advised on appeal they may be prevented from obtaining further advice from a firm of more experience due to the rules on claiming.
The cuts extend to the Court of Appeal and Supreme Court as well. They are equally unwelcome at this stage in the procedure. Where legal aid is granted for a litigator at the Court of Appeal it is usually because there is a complex matter to be considered that requires extra work by a litigator.
Confiscation proceedings are specifically excluded and it is not clear if they are to be subject to an administrative cut of 17.5% as well.
Q9. Do you agree with the proposal under the competition model that three years, with the possibility of extending the contract term by up to two further years and a provision for compensation in certain circumstances for early termination is an appropriate length of contract? Please give reasons.
No. We do not agree with PCT. A contract of this length provides no certainty except liquidation but that is inevitable regardless of contract length. It does ensure that if any companies survive this long, the second round of bidding will see a cartel type market and a rise in price.
Q10. Do you agree with the proposal under the competition model that with the exception of London, Warwickshire/West Mercia and Avon and Somerset/Gloucestershire, procurement areas should be set by the current criminal justice system areas? Please give reasons.
Q11. Do you agree with the proposal under the competition model to join the following CJS areas: Warwickshire with West Mercia; and Gloucestershire with Avon and Somerset, to form two new procurement areas? Please give reasons.
Q12. Do you agree with the proposal under the competition model that London should be divided into three procurement areas be aligned with the area boundaries used by the Crown Prosecution Service? Please give reasons.
Q13. Do you agree with the proposal under the competition model that work tendered should be exclusively available to those who have won competitively tendered contracts within the applicable procurement areas? Please give reasons.
Taking these four questions together, the answer is no as we do not agree with PCT at all.
Limiting contractors to a specified area is anti-competitive and will drive down quality. It will deprive certain defendants of specialist advice from solicitors that specialise in certain areas of work such as terrorism, protest work or baby shaking cases.
This firm specialises in animal rights work and we represent defendants all over the country charged with various often quite obscure offences related directly to protest or in some cases to animal rights protests specifically (such s145 SOCPA 2005). Our expertise in these cases can lead to advice as to an early guilty plea which is accepted due to the clients’ awareness of our expertise and trust in that knowledge. Alternatively it leads to an acquittal or the case being dropped as we are able to demonstrate to the Crown or the Court that the offence has not been committed. This is a frequent occurrence particularly in the Magistrates’ Court.
In a lot of these cases we act for multiple defendants. In two recent VHCC cases we acted for 7 out of 10 and 4 out of 7 defendants (having lost 2 and 1 in each trial to potential conflicts initially). Had the PCT proposals been in place as each client was arrested at a different police station around the country (there were 35 arrests, 25 of which were our clients, from Folkestone to Alton, to Merthyr Tydfil to Charing Cross), each would have had a different solicitor. Instead of the one contract on case one there would have been seven and there would have been four instead of one on case two. In case two we cost less than might otherwise have been the case as we had acted on trial one. We saved the LSC literally hundreds of thousands of pounds. The case involved over 50,000 pages of evidence. These savings would be lost under PCT. This expertise would be lost under PCT. These are costs which work negatively on the proposed savings but which the Government has not considered at all.
We are in South London. It is proposed that there are 18 firms in this area which will presumably stretch from Kingston in the west to Woolwich in the east and from Kennington in the north to Croydon, Bromley and Bexley in the south. It is an enormous area.
It can take a couple of hours to get across this area from Kingston to Woolwich. This mitigates against any economies of scale for the firm and will be an unacceptable burden on a resident of Kingston who on arrest is allocated a firm based in Woolwich or Lewisham, or Bexley. No choice means more cost for the client in time and money in travelling to see their solicitor.
The extra costs involved in clients ending up with more than one representative or in the case of many clients choosing to represent themselves will eat away at any savings made by introducing the scheme.
Q14. Do you agree with the proposal under the competition model to vary the number of contracts in each procurement area? Please give reasons.
Q15. Do you agree with the factors that we propose to take into consideration and are there any other factors that should be taken into consideration in determining the appropriate number of contracts in each procurement area under the competition model?
Please give reasons.
No as we do not agree with PCT at all. The numbers of contracts seem completely random. In London 18 contracts are to be tendered for south London, 27 for North and East and 38 for West and central. This will lead to a huge discrepancy in the value of the contracts and the amount of work to be undertaken.
The table below demonstrates the discrepancies for London, showing how many cases a firm in each area might expect to receive:
Scheme Type of case Per Year Per Month Per week
W & C PS 1130 94 22
MC 567 47 11
CC 220 18 4
N & E PS 1610 134 31
MC 1003 84 19
CC 216 18 4
South PS 2781 232 53
MC 1396 116 27
CC 367 31 7
What is the justification for this?
The PDS should simply be abolished as it is not cost effective. This would save some money for the system.
Q16. Do you agree with the proposal under the competition model that work would be shared equally between providers in each procurement area? Please give reasons.
No. We do not agree with PCT as a model. This demonstrates again why it cannot work. You are guaranteeing nothing but an equal share of an unknown number. Volume of cases is falling.
The quality of the work (how many cases would be above 500 pages) cannot be ascertained or guaranteed under this model.
Q17. Do you agree with the proposal under the competition model that clients would generally have no choice in the representative allocated to them at the outset? Please give reasons.
Absolutely not. We understand that because you are trying to guarantee an equal share, you have to deprive clients of the representative of their choice. However, this is completely unacceptable and perhaps the biggest reason why PCT cannot work.
Denying choice is contrary to s27(4) LASPO which has only just been enacted and in our view will be contrary to a proper interpretation of Article 6 of the European Convention on Human Rights.
The e-petition currently circulating and at the time of writing over 72,000 signatures is a very good indication as to the strength of feeling about this particular aspect of the paper. Mr Grayling’s comments to the Law Society Gazette that most people arrested were not great connoisseurs of legal skills was both unfortunate and inaccurate. Those arrested regularly are most certainly able to make an informed choice as to their legal representative and a bad lawyer does not survive very long in this arena.
Ironically those arrested for the first time, those who might not expect to find themselves in the criminal justice system are the ones who have little idea as to which lawyer to choose. However they usually ascertain quite quickly if the one they have been allocated as duty solicitor is any good, is right for them or whether they should change. Access to internet, the plethora of information available on line, friends and family recommendations all lead them to a lawyer of their choice at some point.
Choice is the main guarantee of quality within the system. It is a better guarantee of quality than any contrived administrative method to try to measure quality through accreditation or peer review. If choice is denied to clients, the incentive for the firm with a contract to maintain a quality service disappears as they will be guaranteed the same amount of work regardless of their quality of service. After the initial bidding process, the market is anti-competitive until the next bidding round. By then new entrants to the market are unlikely to materialise and the price may be driven up by the few bidders left and with no corresponding quality assurance.
It is the lack of choice and the resultant effect on the quality of representation that will lead to huge problems within the criminal justice system if this is implemented. This is exacerbated by the proposed payment of the same fixed fee for guilty pleas as for a trial in Magistrates’ Court work and in Crown Court cases with a page count of less than 500.
This will mean that the firm will be under a financial disincentive of some magnitude to prepare trials properly. Every trial would become a case on which money will be lost and in some cases the time taken to prepare the case would be so uneconomic as to give the firm a very real conflict of interest with their own client. This cannot be built into the system of legal aid. One can currently rely on solicitors and those working for them to act with integrity especially given the over zealous regulation exerted by the SRA. However, how will non legal entities employing inexperienced paralegals cope with such conflicts. The figures cannot work using experienced solicitors which is another reason why quality will fall.
It may be best to illustrate this with an example. If a client is charged with burglary on which there are 100 pages of evidence and they plead guilty, the current litigator fee is a little under £400 + VAT. If a client is charged with the rape of a 12 year old girl, the page count is 500 and the trial takes 5 days, the current litigator fee is just under £8000 + VAT. On a plea the fee is currently £3000. This last case will involve ABE video interviews to be considered, issues as to cross-examination of the complainant, potentially other child witnesses with ABE interviews and could engage a solicitor reasonably easily for something in the region of 100 hours or more. The burglary case is likely to take no more than 5 or 6 hours unless there are complications, mental health issues and so on. Unfortunately such issues are common place and often cases are less straight forward than they appear. Under PCT, a bid at 25% below the average (the minimum one might expect to win any truly competitive bid) would lead to a fixed fee for both cases of about £850 + VAT.
It does not take a genius to work out that you will need a lot of straight forward guilty pleas to minor offences to make up for the enormous losses on just one serious case like the above rape example. In this case it is likely that the solicitor preparing the case would be working for about £8.50 per hour and the loss to the firm between the two systems approaches a staggering 90%. No swings and roundabouts argument can justify these kind of figures – they are plain wrong, and frankly insulting.
The pressure on employees of firms in possession of a contract will be to spend as little time as possible on such cases when they are exactly the sort of case that needs experienced and careful consideration. They are time consuming and should be properly remunerated.
The flat fee for pleas and trials will have the same effect on Magistrates’ Court cases, exacerbated by the removal of the ability to claim on a time basis with enhancement for those cases that take up a lot of time. For instance, we recently dealt with a three handed 6 day trial in the Magistrates’ Court. Under PCT the fee for south London would be about £400, although presumably we would have been paid this for each of our three defendants. How can any firm prepare a trial of this nature for that price? We acted for three defendants and our fee has been assessed at over £20,000 such was the time that the case required. At £400 the case could not have been prepared to any standard at all. The cut here is over 98%. The hourly rate would be about £2. Can the MOJ explain how this can be justified at all in any proper system of justice and say with a straight face that quality would not be affected by a flat fee for trials and guilty pleas.
Of course the stock answer is that we can rely on the integrity of solicitors. This is currently correct as we regularly work on cases on which we are paid a fixed fee over and above what we are to be paid. At the police station on any murder case we work for free for at least £600 (12 -15 hours) until we get to the threshold where payment starts again. However, these types of cases and this level of reduction put an enormous strain on the solicitor-client relationship where there are clear and dangerous conflicts of interest.
These cases, especially the incidents highlighted in relation to litigators’ fees are not unusual or exceptional. They are regular and common place. Two more examples from our current case load to illustrate the point:-
• gross negligence manslaughter of an elderly relative in the care of our client who is a person of good character and in their 60’s. This is a case outside of our south London catchment but came to us because we have experience in this difficult area of law (manslaughter by gross negligence). The case has only 430 pages of evidence. It is extremely complicated and involves numerous experts. It is being handled by the managing director and has legal aid for silk and junior. The trial will be 10 days. Currently the trial fee is a miserly £7000. We have already gone beyond that figure based on the rates of pay that we would have expected pre-litigator fee (i.e £111.50 per hour as 100% uplift would have been payable on this case without question). Under the new proposals we could not have done the case at all as it is outside of our area. Had it been in south London, the rate of payment for this case would be £850 on a bid at -25%. Our client simply could not have a fair trial when the firm is being paid so little to prepare a very complicated case at such a low fee.
• A case of dealing in firearms with 440 pages of evidence and listed for a 5 day trial. This is a south London case. The case involves expert evidence as to whether certain items are firearms as defined. The litigator fee is currently a little over £6000. Again under the proposals on a bid at -25% the fee would be £850.
So that you can see the figures that we are working to and check their accuracy at Appendix A we set out a table for London covering the police station, Magistrates’ and Crown Court (less than 500 pages) figures extrapolated from the paper. It is perhaps of interest that the value of these contracts is not a particularly large figure that would justify an increase in the size of our firm by about 300% just to deal with south London. It is important to note that volume is falling and the share of work cannot be guaranteed. As your reputation will count for nothing obtaining the higher interest work and cases over 500 pages or VHCCs is pot luck.
There is no incentive for any firm to increase its overheads or to merge with the huge investment that entails for rates as derisory as those suggested in this document. Banks will not lend on these figures or on contracts of such a length.
The removal of client choice also removes from current firms the value of the goodwill of that firm. The firms effectively become worthless. The work put into establishing reputations of firms by solicitors who have worked so hard over the last 20, 30 or 40 years will be blown away in one fell swoop if these changes come in. Over a thousand small firms will become all but worthless. Thousands of solicitors have worked their entire professional lives to build up a practice with a reputation that they had assumed could be sold on as they approached retirement. These changes and the removal of choice specifically remove that value and render those hard earned professional reputations worthless. How do you think that might feel?
To summarise the objection to removal of client choice and to extrapolate its potential effects to the criminal justice system:
• Removal of choice guarantees an equal share of an unknown number of cases of an unknown type (e.g. they could all be minor matters)
• Clients cannot choose their lawyer based on their perceived quality.
• There is no incentive to provide a quality service above the bare minimum to keep a contract going (whatever that may be)
• The payment structure discourages quality work on trials especially in the lower court and on those cases with evidence under 500 pages – i.e the vast majority of cases.
• Employment of non legally qualified staff to prepare cases will be an imperative for any firm with a contract as costs will have to be cut to the bone (and beyond)
• Quality of advice will fall
• Quality of representation will fall
• Convictions will rise
• Miscarriages of justice will rise
• Prison costs will rise as more people are wrongly sent to prison
• The knock on effects to society as a whole are unimaginable – increases in benefits as those wrongly convicted of crimes cannot get jobs as they have a criminal record, increased levels of depression etc.
• New graduates will not come into criminal law
• The level of expertise drains from the system and this will affect both prosecution and defence
• The pool of skilled candidates for future judicial appointment in all courts dries up (many District Judges are ex-defence solicitors and an increasing number of judges also practised as solicitors. These changes will adversely affect the Bar as well)
• More clients will represent themselves as they cannot get a lawyer they want or a lawyer they trust
• Trials will take longer costing more money for the courts
• The whole CJS grinds to a halt.
There are so many knock on costs to these proposals that they will end up costing vastly more than they might save in the short term on legal aid payments. The debacle of the interpreters’ contract will seem like a picnic by comparison.
Q18. Which of the following police station case allocation methods should feature in the competition model? Please give reasons.
• Option 1(a) – cases allocated on a case by case basis
• Option 1(b) – cases allocated based on the client’s day of month of birth
• Option 1(c) – cases allocated based on the client’s surname initial
• Option 2 – cases allocated to the provider on duty
• Other
Q19. Do you agree with the proposal under the competition model that for clients who cannot be represented by one of the contracted providers in the procurement area (for a reason agreed by the LAA or the Court), the client should be allocated to the next available nearest provider in a different procurement area? Please give reasons.
We now get into the realms of the truly absurd. The system cannot work and if it is brought in one would expect the Government to have at least this basic concept worked out in advance. We are not statisticians and have no idea whether the stupidity of this suggestion would produce an equal share of the market. Personally one can well imagine that a firm allocated those clients whose surnames begin with X might not be as well served as those beginning with W.
As for question 19 – what other choice do you give yourself – heaven forbid you might allow the client to choose their representative.
Q20. Do you agree with the proposal under the competition model that clients would be required to stay with their allocated provider for the duration of the case, subject to exceptional circumstances? Please give reasons.
Of course we do not agree with this as we do not agree with PCT. You are forced into this absurd and potentially unlawful position by the impracticality of seeking to impose PCT on a market for which it is not appropriate. Transfers of legal aid will undermine the guarantee of equal numbers of cases. However, to prevent transfers risk unlawfulness, unfairness and further miscarriages of justice. It will lead to an increase in unrepresented defendants and will increase the time taken to try cases and therefore the costs of trying them.
Q21. Do you agree with the following proposed remuneration mechanism under the competition model. Please give reasons.
• Block payment for all police station attendance work per provider per procurement area based on the historical volume in area and the bid price
• Fixed fee per provider per procurement area based on their bid price for magistrates’ court representation
• Fixed fee per provider per procurement area based on their bid price for Crown Court litigation (for cases where the pages of prosecution evidence does not exceed 500)
• Current graduated fee scheme for Crown Court litigation (for cases where the pages of prosecution evidence exceed 500 only) but at discounted rates as proposed by each provider in the procurement area
Q22. Do you agree with the proposal under the competition model that applicants be required to include the cost of any travel and subsistence disbursements under each fixed fee and the graduated fee when submitting their bids? Please give reasons.
No, no, no, no and no.
We have given some reasons at Q17 above as to why block payments as suggested are unworkable and will lower quality. It is a basic principle that trials cost more in terms of time and money than a guilty plea. The lawyer cannot force a client to plead guilty although these provisions will put the interests of clients and their lawyers into sharp conflict whereby guilty plea advice may become more stringent than it ought otherwise to be. The rates are too poor and equalising the fees across offence type and across plea, cracked trial and trial is a recipe for utter disaster. Examples are given above.
Getting rid of the threshold on police station cases means that payment on the most serious of cases 9as currently) will become even less acceptable. Experience is required in these cases but experience is not paid for under the current system and will be even less remunerated under this proposal.
Why should firms not be paid the expenses of travel etc? It is not as if we can ask the police or the court to come to us! The size of the areas contracted will mean an increase in travel for firms and an increase in costs. It is not acceptable that the expense of this falls on the firms and not the fund.
Answering these sorts of questions becomes more and more exasperating as one realises the sheer hopelessness and utter idiocy of these proposals and one wonders what experience of the system the people responsible for drafting this document actually have. Most recently it was reported that MPs want to vote themselves a pay rise of between 10 and 20% despite the austerity of the times that we are frequently lectured on by them. Apart from the rank hypocrisy of it, one had to laugh at the justification that if you pay peanuts you get monkeys. In a nutshell that sums up these proposals.
You are seeking to pay even below the level of peanuts but expecting a professional service in return. You will get unqualified staff with no experience effectively sending innocent people to prison. This is the criminal justice system, we are not selling ice cream. Our role is as important as that of an MP if not more so. They would not work for these rates and neither will we.
There is nowhere in the questions to object to the idea that solicitors should send representatives to the Crown Court to assist Counsel. We used to do this in every case but once we were no longer paid for it we stopped doing it. Quality of service to the client has undoubtedly suffered as a result but firms cannot be expected to work without payment. If you are to introduce this as a contract term (which is ridiculous), there will have to be a set fee payable to cover the cost.
Q23. Are there any other factors to be taken into consideration in designing the technical criteria for the Pre Qualification Questionnaire stage of the tendering process under the competition model? Please give reasons.
Q24. Are there any other factors to be taken into consideration in designing the criteria against which to test the Delivery Plan submitted by applicants in response to the Invitation to Tender under the competition model? Please give reasons.
Q25. Do you agree with the proposal under the competition model to impose a price cap for each fixed fee and graduated fee and to ask applicants to bid a price for each fixed fee and a discount on the graduated fee below the relevant price cap? Please give reasons.
You cannot build any effective quality assurance into this scheme. We agree with nothing in the proposals to introduce PCT. We will not be bidding if this scheme is introduced. We will not and cannot therefore engage with these questions.
Your implementation timetable is also absurd in its brevity.
Reforming Fees in Criminal Legal Aid
Q26. Do you agree with the proposals to amend the Advocates’ Graduated Fee Scheme to:
• introduce a single harmonised basic fee, payable in all cases (other than those that attract a fixed fee), based on the current basic fee for a cracked trial;
• reduce the initial daily attendance fee for trials by between approximately 20 and 30%; and
• taper rates so that a decreased fee will be payable for every additional day of trial?
Please give reasons.
Please do not use the word “harmonise” which has rather pleasant connotations, when you mean cut.
We have stated above that a single fee for plea, cracked trial or trial is an absurdity. To make this suggestion of any of the fees in the paper demonstrates a complete lack of understanding as to what goes into the preparation and presentation of a criminal case. It is one of the single most damaging proposals in this paper in terms of quality of representation and one of the most dangerous in terms of the financial viability of the proposed scheme to firms mad enough to bid and in this particular context advocates unfortunate enough to find themselves instructed under it.
None of these changes is acceptable. The results of tapering are demonstrated as being absurd when you find the lowest rate falls as low as £14 per day albeit on a type of case where such a length of trial is exceptional.
These cuts will lead to people leaving the criminal Bar, new entrants will dry up and the future will be very bleak for prosecution and defence of criminal cases at any acceptable level and will have a knock on effect to the judiciary.
You are seeking to incentivise financially guilty pleas. You are thereby seeking to influence advice by making it financially better to give one type of advice as against another. This is not acceptable and should be no part of Government and no part of any respectable fee structure.
The fees cannot take any more cutting.
Q27. Do you agree that Very High Cost Case (Crime) fees should be reduced by 30%?
Please give reasons.
Q28. Do you agree that the reduction should be applied to future work under current contracts as well as future contracts? Please give reasons
VHCC work is the most complex that there is within the system. It must be adequately remunerated if lawyers of sufficient quality and experience are to undertake the work. If these lawyers do not undertake this work these cases will become even more unwieldy before the courts and take even longer to prosecute at greater ultimate expense.
The payment on such cases is tightly controlled by the LSC (now LAA). The rates have been eroded over time and now no longer reflect the ex post facto rates previously payable to serious fraud and other complex cases. Inflation will also have furthered the relative reduction.
A 30% cut is an enormous amount to take out of these rates. It will adversely impact on the quality of representation without doubt as these cases become uneconomic.
If the Government is concerned about the payment of large sums to a few QC’s as suggested in the foreword, those specific payments should be scrutinised in the same way that MPs expenses were scrutinised. The pain should not fall on everyone else.
To reduce the rate of pay mid-way through a contract is potentially unlawful. We are not experts in contract law but it would appear to be a basic principle that one party cannot unilaterally change the central term of the contract (that relating to payment) after the start of the contract. Firms would be entitled to consider the contract repudiated and refuse to work under the new terms. This would cause a huge problem for the clients and the courts. It is a basic principle of law and fairness that contracts are honoured. Is it seriously suggested that the Government would seek to renege on all of its VHCC contracts. That is nothing short of a scandal.
Retrospectivity in law is an unusual concept. Changing central contract terms after a contract is signed is a novel concept. That the State should be suggesting it is outrageous and insulting to the profession.
Q29. Do you agree with the proposals:
• to tighten the current criteria which inform the decision on allowing the use of multiple advocates;
• to develop a clearer requirement in the new litigation contracts that the litigation team must provide appropriate support to advocates in the Crown Court; and
• to take steps to ensure that they are applied more consistently and robustly in all cases by the Presiding Judges?
Please give reasons.
It seems it is now the turn of the judiciary to be insulted. No evidence has been presented in the paper to suggest that judges are allowing representation by more than one advocate in cases where it is inappropriate. The current regulations are adequate and appropriate and should be maintained.
Reforming Fees in Civil Legal Aid
Q30. Do you agree with the proposal that the public family law representation fee should be reduced by 10%? Please give reasons.
This is not our area of expertise and we have no experience at all of family work. However, we are aware that significant cuts have been made in this area previously and can see no justification for further cuts.
Most legal aid firms will operate on profit margins not much higher than 10% and often lower. To cut fees at this level must put some firms in danger of financial collapse.
Q31. Do you agree with the proposal that fees for self-employed barristers appearing in civil (non-family) proceedings in the county court and High Court should be harmonized with those for other advocates appearing in those courts. Please give reasons.
We have no experience in this area and would not consider ourselves qualified to make a comment.
Q32. Do you agree with the proposal that the higher civil fee rate, incorporating a 35% uplift payable in immigration and asylum Upper Tribunal appeals, should be abolished?
Please give reasons
We have no experience in this area and would not consider ourselves qualified to make a comment except to say that the proposal looks to us to be potentially discriminatory.
Experts’ fees
Q33. Do you agree with the proposal that fees paid to experts should be reduced by 20%? Please give reasons.
Experts’ fees were recently cut by about 10% in criminal cases. To reduce the rate by a further 20% is unacceptable. Experts play a crucial role in criminal work and to reduce the amount payable to them will seriously undermine the ability of defence lawyers to find suitable experts willing to undertake legally aided work. This is already a problem. It was a problem before the recent reduction and has become more of a problem since that time.
Reducing the rates may well have the effect of driving down standards and the quality of work. It may mean that experts set themselves up working from home in order to reduce costs, they may not be as inclined to keep abreast of recent developments and many will be lost to the system for ever.
Many miscarriages of justice in the past have resulted from poor expert evidence and have been righted by the reliance of better qualified experts. It is our opinion and experience that the Crown pays experts more than we are able to pay them under legal aid.
We have two recent examples of this. In an insider dealing case the FSA refused to divulge the rate paid to their expert when we were struggling to get authority at a sufficiently high level for our expert from the LSC. Eventually the LSC relented, we believe, because the judge was becoming increasingly concerned that the fairness of the trial may be compromised if we were unable to instruct a suitable expert to challenge the Crown case.
We currently have an ongoing trial where the Crown instructed an expert and gave away his report as it undermined their case. We are now seeking to instruct the expert but his rate is not accepted by the LSC as reasonable. This is subject to appeal at the time of writing.
Expert evidence is essential to help prevent miscarriages of justice. There has to be a level playing field between the defence and prosecution when it comes to paying experts. We know that is not currently the case and to reduce defence experts’ pay further will make it increasingly difficult to find suitably qualified experts to work under legal aid rates. This will negatively impact on the fairness of trials and could lead to innocent people going to prison at great expense to the public purse.
Impact Assessments
Q34. Do you agree that we have correctly identified the range of impacts under the proposals set out in this consultation paper? Please give reasons.
Q35. Do you agree that we have correctly identified the extent of impacts under these proposals? Please give reasons.
Q36. Are there forms of mitigation in relation to impacts that we have not considered?
The impact assessments are flimsy and inadequate.
These proposals will decimate BME firms in particular. They will adversely affect the BME, mentally ill and under privileged communities.
The impact assessment in effect accepts that there will be adverse impacts on clients and providers alike but seeks to justify the impact by claiming it is proportionate to save the money required. We do not accept that this is the case although of course we have no experience of undertaking impact assessments. It is a little bizarre to be asked to comment on whether anything else is missing from the impact assessment as this is a matter purely for the ministry.
The reduction in quality will of course adversely affect clients and this cannot be justified or proportionate in any circumstances.
Alternative suggestions
The Lord Chancellor has repeatedly said that he wants the profession to come up with alternative suggestions. We were given no prior warning of this before the consultation and it is disappointing in the extreme that there was no attempt to engage the profession in dialogue before wasting public money producing a paper as grossly flawed as this one.
There is no request in the document to consult on PCT as a concept but merely how it could be implemented. It will be clear by now that the profession in an unprecedentedly united voice says loud and clear that it cannot be implemented and is totally inappropriate for the provision of criminal defence services. We are not aware of it having been tried elsewhere in the world. We are aware of a recent change in New Zealand which is in the process of being reversed as it was such a disaster but we believe that was the imposition of fixed fees rather than PCT. There will be a reason that it has not been tried elsewhere if indeed that is the case. No doubt the reason is that it cannot work.
We have been given only 8 weeks to respond. There may be alternatives but before any alternatives can be suggested we need to know the truth about the numbers. We know £220 million is to be saved. We don’t know why that figure has been chosen. We do not know what the base this figure has to be saved from or the figure that the MOJ wants to get to by 2018/19.
The MOJ has been inconsistent in the figures. We have been told that it is £220 million from the figures in the paper i.e. the 2011/12 figure of £1.08 billion which gives a final figure to reach of £860 million. We have been told that it is to be saved from the 2013/14 projected figure of £941 million. This is simply ridiculous and cannot be right.
We have been informed recently that the final figure is about £800 million which is presumably based on the projected figures for 2012/13. This would in our view mean a reduction of £280 and not £220 million as the only honest and transparent answer to the question must be that the savings come from the published figures (i.e. £1.08 billion). We have emailed a question to the MOJ to clarify the position.
It is important and the MOJ knows that it is important because savings over and above what were expected have already been made following the most recent cuts. The final figure for 2012/13 is likely to be around £950 million so if we are working on the 2011/12 figures as a base, we have made a lot of progress and only have to find another £90 million in the next five years.
If the figure we are aiming at is a discount on 211/12 of £280 million (i.e £800 million target), we have to find another £150 million in five years.
It is respectfully suggested that PCT and the threatened cuts in this paper be removed from the table now. The MOJ needs to implement an independent review of the whole of the criminal justice system all of which is within its remit, to see which sections are wasteful and which are good value. Legal aid will be seen for the incredible value that it is once this type of review is undertaken.
The Government is taking steps to allow restrained funds to be taken into account when assessing contributions to legal aid. This will save some money but we, of course, cannot cost those savings. These will go some way to making up the £90 or £150 million. The rest may well come from the increasing fall in volume such that further dramatic changes and even further small cuts are not necessary.
Without honesty from the MOJ on the figures, we do not know how much we need to save. The goalposts cannot be constantly moved every time we point out a saving that has already been made. Honesty would dictate that the goal is £860 million by 2018/19 and we will get there with very little change at all. If the goalposts are shifting, the Minister needs to be held to account for any manipulation of the figures and the MOJ has to say with absolute certainty what savings are to be made. This cannot be a difficult question to answer.
We would suggest that the expensive PDS be abolished. We do not know how much that will save.
We could suggest a levy on the banks to fund the defence of large fraud prosecution. They were rewarded with £400 billion of public funds (or put another way over 400 years of criminal legal aid budgets) after bringing the economy to its knees a few years ago to put us in the mess the Government claims to be the cause of these proposals. This would remove a lot of money from the budget.
We could suggest a separate budget for VHCC work or terrorist cases. This may not be a money saver but it might allow tighter control (if this is required) of the larger cases that take up a disproportionate amount of the budget.
We would suggest that the MOJ retains the ability of firms to have an Appeals and Reviews only or a Prison law only contract.
None of these suggestions can be developed unless there is a dialogue between the Ministry and the profession and the Ministry can properly cost the suggested alternatives. Indeed if the Minister is serious about wanting alternatives to PCT, they will have to be costed and the Ministry will have to publish their findings on these costs. This would have to lead to a further period of dialogue before any further changes can be proposed. We would expect that if the Government seeks to take up any alternative suggestions, a further consultation on those changes would be required.
There may well be other ideas which could be considered but a dialogue with the profession without a gun to our heads is required along with a wider review of the CJS.
What is abundantly clear is that PCT will not work. What is not clear is how much the Ministry actually needs to save by 2018/19, i.e. what is the target figure for the budget at that date? We think we should be told.
Birds Solicitors
3rd June 2013
796.83
Birds Solicitors
Response to Consultation Document
Transforming Legal Aid
3rd June 2013
About the Firm
Birds Solicitors is a firm of criminal defence specialists. The firm was established on 2nd October 2000 and deals with crime at all levels from the most mundane to the most serious of cases. We act in serious fraud cases (we were members of the defunct Serious Fraud Panel and VHCC Panel) and are therefore regularly involved in VHCC cases.
Our client base extends beyond the locality although we have a large core of clients from south west London and therefore are a vital resource for the disadvantaged members of society in that area and in particular the local youth. Gang culture is unfortunately rife in this part of London and many of these young men find themselves in our office, some more regularly than others.
We have a specific expertise in protest work and animal rights in particular. We are one of a small number of firms of choice for animal rights protestors arrested throughout the country and regularly deal with cases, large and small, at distant court locations. In this context it is not uncommon for us to represent multiple defendants. These cases have included three VHCC cases in the last 4 years. We have acted in other protest work including the student protests, environmental protests and relatively recently represented 25 of the 35 people arrested during the forced eviction of the Dale Farm travellers site in Basildon.
We have a national reputation for appellate work and applications to the Criminal Cases Review Commission. We constantly have an appellate caseload of approximately 50 plus cases and run this via highly qualified solicitors and do not rely on less experienced paralegals. We have been responsible for overturning numerous convictions many of which have been referred to the Court of Appeal by the Criminal Cases Review Commission. We also represent claimants in applications for compensation from the Home office for miscarriages of justice. We also have a small prison law department of two solicitors.
We have 22 solicitors, 15 of whom are duty solicitors and 7 are higher courts advocates, two legally qualified paralegals and four support staff. Steven Bird is the co-author of the Police Station Advisers’ Index (in its 4th edition) and has contributed chapters to Taylor on Criminal Appeals (2nd edition) and a publication on the CCRC by Michael Naughton. We provide a monthly service of articles to Westlaw and JustCite. Mr Bird is on the editorial board of LexisNexis PSL and a committee member of the London Criminal Courts Solicitors Association (LCCSA) and the Criminal Appeal Lawyers Association (CALA) of which he is Treasurer. The firm deals solely with criminal law although since early 2009 has introduced a prison law department.
We are highly recommended in the top tier of both the Legal 500 and Chambers & Partners directories as one of the top firms in London for criminal work. Both Steven Bird and Tim Greene are highly recommended in Chambers & Partners as individuals and Steven Bird is also listed as a leading individual in the Legal 500. Claire Bostock is recommended in Chambers and Steven Bird, Tim Greene, James Nicholls, Martyn Fisher and Evans Amoah-Nyamekye were all recommended in the recent first edition of SuperLawyers.
We believe that we are a firm which has a deep understanding of the criminal defence field including the business viability of the current proposals. Because our cases range from the minor to the most serious, from the police station to the Magistrates Court, the Crown Court and into the Appellate Courts, we are qualified to speak about the system as a whole and would be a firm which the Government might expect to be likely to bid for Contracts. We state now that under the model proposed in this paper, we will not bid either as an individual firm or as part of a group as the proposals are not financially viable for any firm, however constituted, if that firm is to retain any professional integrity. If the proposals are followed through, it is unlikely that we would be able to continue to operate as 85% of our turnover comes from legally aided work.
Ministerial Foreword
It is unusual to comment on a Ministerial Foreword in any consultation document but this one is extremely worrying in its inaccuracy and cannot go uncorrected. Mr Grayling appears to have been very badly briefed and it is deeply troubling that the whole basis for the paper is based on misconceptions that one might expect from a tabloid newspaper but not from the Ministry of Justice. This is too serious to be driven by sound bite over evidence. The Lord Chancellor informed the Law Society Gazette that Price Competitive Tendering (“PCT”) was not a matter of ideology but a “financial necessity”. We are pleased to hear that it is not an ideology of this Government as it can be swept away more easily if that is the case. We do not believe that it is a financial necessity either for the reasons set out below.
The Minister makes the following assertions upon which we wish to comment:
1. “Access to justice should not be determined by your ability to pay, and I am clear that legal aid is the hallmark of a fair, open justice system.”
We agree with this opening comment. The problem is that the proposed system will do the exact opposite. Removal of client choice will lead to a lowering of quality for those who cannot afford to pay for their own lawyers. We may have developed a two tiered legal system as a result of 15 years of continual cuts and re-structuring but under these proposals it will become very much worse as those not able to pay will be allocated to and stuck with companies acting for them who they did not choose and for whom a trial will be a financial inconvenience. Even if you choose to fund a lawyer privately and win, you will not recover any of your costs if you would have been financially eligible for legal aid and will only recover costs at legal aid rates if you were financially ineligible. Justice should not just be for the rich. At the moment it is not, but under PCT it will be.
2. “Unfortunately, over the past decade, the system has lost much of its credibility with the public”.
When pressed by Catherine Baksi in his recent interview with the Law Society Gazette, Mr Grayling admitted that he had no actual evidence of this but had received a lot of letters and emails apparently unrelated to criminal legal aid. On the other hand the Bar Council commissioned a poll by ComRes which found that the public were largely supportive of criminal legal aid as a necessity in a civilised society.
The poll found that 71% of the respondents were concerned that cuts to criminal legal aid could lead to innocent people being convicted of crimes they did not commit if forced to use the cheapest defence lawyer available. It also found that 67% agreed that legal aid was a price worth paying for living in a fair society and 75% felt that the poorest would be hit hardest by the proposed changes. Furthermore 68% agreed that at less than 0.5% of annual government spending, “legal aid is a worthwhile investment in our basic freedoms”. This is hard evidence not unsubstantiated comment based on receiving a few emails.
3. “Taxpayers’ money has been used to pay for frivolous claims, to foot the legal bills of wealthy criminals, and to cover cases which run on and on racking up large fees for a small number of lawyers, far in excess of what senior public servants are paid.”
There are three points here. Criminal legal aid does not deal in frivolous claims. He is referring, it seems, to actions by prisoners or potential judicial reviews. Lawyers will take a view on certain claims and decide whether they are of sufficient merit to warrant public funding. This does not mean that every case taken on will win. Indeed it should not even be close to that as lawyers should be challenging the treatment of prisoners and seeking to hold public bodies to account, especially this Government who are regularly on the end of the judicial reviews of which they seek to limit the funding. Is there not just a slight conflict of interest here? In many judicial review cases, agreements are reached out of court and the matter is never tried. This does not mean that the claim is frivolous. A letter to the Telegraph by 90 eminent QC’s who engage in judicial review work deals with this point far more eloquently than we would be able to do (http://www.telegraph.co.uk/news/uknews/law-and-order/10085014/Leading-barristers-warn-over-legal-aid-cuts.html).
“Wealthy criminals” obtaining legal aid to fight their cases is a subject which is bound to draw some public attention. There was a time when legal fees could be paid from restrained funds and such funds often were used to fund a defence thereby not troubling the legal aid budget. The Government legislated in about 2001 so that restrained funds could not be used and the “wealthy defendant” had to turn to legal aid – they had no choice. A reversal of this restriction would most likely be welcomed by many although we would add the caveat that if acquitted all funds paid out should be reimbursed by the State. This is, we understand, before Parliament at the moment in the Crime and Courts Bill 2012/13. We would be interested to know what figure the Government expects will be saved from the legal aid budget once this Bill is enacted.
Cases which rack up large fees for a handful of lawyers way above what senior public servants are paid – it beggars belief that it can be a serious reason fundamentally to change a system to deal with a few large bills from a few defence lawyers working on very large and complex cases. If the Crown chooses to prosecute people and serve a room full of evidence, what are the defence lawyers to do but read it? It is called defending your client. We cannot understand why, if this is a major issue, we need to reduce the fees for defending the vast majority of small cases in both courts where the fees are already so small that further cuts are akin to hacking at the bone rather than trimming away any perceived fat.
We are equally baffled by the reference to the pay of senior public officials as it seems totally irrelevant. If I wanted to buy a pound of apples, would I be complaining because it cost more than a pound of pears? I suspect that these senior public officials, whoever they may be, are likely to be paid a fixed salary likely to be in six figures, be able to claim expenses from public funds, be entitled to pensions at public expense and even in some cases live in grace and favour accommodation. This is not a necessary, reasonable or relevant comparison.
4. “Under the previous government, the cost of the system spiralled out of control, and it became one of the most costly in the world.”
One would assume that “spiralling out of control” in this context can only mean the cost of the system is increasing year on year on year at a great rate. This is something that must be easy for the Government to prove and no doubt they will have looked at the historic figures before embarking on the drafting of the consultation paper and letting the Lord Chancellor make such a bold comment.
Surprisingly there is no single source for these figures but the LCCSA has collated them from various MOJ and LSC documentation. The concrete evidence shows that the spiral is downwards. The figures for 2001/2 to 2008/9 come from the Parliament website and show an increase from 2001/2 to 2003/4 but then the figure starts to drop and continues to drop and drop and drop. The figures are as follows:-
2001/2 £1.21 billion
2002/3 £1.31. billion
2003/4 £1.37 billion
2004/5 £1.35 billion
2005/6 £1.33 billion
2006/7 £1.26 billion
2007/8 £1.23 billion
2008/9 £1.21 billion
2009/10 £1.2 billion (source LSC press release)
2010/11 £1.14 billion
2011/12 £1.08 billion (PCT consultation document)
2012/13 £1.025 billion – projected figure in LSC business plan 2012/13 but likely to be as low as £950 million when finally published after the close of the consultation.
2013/14 £0.941 billion – projected figure from LAA 2013/14 business plan
What should also be borne in mind is that these figures include VAT so the Treasury gets back 15%, 17.5% or 20% depending on which year you are looking at. This means that when VAT went up to 20% from 17.5 % on 4th January 2011, there would have been an upward pressure on the cost of legal aid. The exact figure is hard to calculate but 2.5% of £1 billion is £25 million. In fact the figure for 2012/13, the first full year at higher VAT, is likely to come in as low as £950 million better than the forecast £1.025 billion. This figure was put to the LAA at a recent Criminal Contract Consultative Group (CCCG) meeting and was not disputed.
This has led to us having the most expensive system in the world: Apples and pears again. We have a different system to most of other European countries. The legal aid bill is likely to be higher in an adversarial system. The National Audit Office prepared a briefing report for the Justice Committee in February 2012 called ‘Comparing International Justice Systems’ which compared the cost of the criminal justice systems of countries around the world. This is the criminal justice system as a whole not just legal aid and would appear to be a much fairer comparison especially for a Ministry in charge of the whole system. The average national spend was 0.33%. The spend for England and Wales was 0.33%. Our spend is absolutely in the middle, right on the average figure.
5. “Earlier in this Parliament, the Government took significant steps to reform legal aid, to bring costs under control particularly in relation to civil claims. In the current financial climate, it is now necessary to make further savings by embarking on the next phase of reform, mainly focused on criminal cases.”
This suggests that criminal legal aid has been immune from cuts in the past or at least the recent past. That is simply not correct. There have been no increases in rates since about 1998 – no-one can quite remember when the last upward change was as it was so long ago but this is the conservative estimate. Criminal legal aid has suffered austerity measures for 15 years, right the way through the supposed boom times. There is no more to cut.
Many of the cuts come from re-structuring and where relevant the base rates remain the same as they were in 1998. Inflation, however, has not remained at zero and £100 in 1998 would be worth £153 today if adjusted for inflation.
As an example of what that means to legal aid rates, the London advice and assistance rate (the rate used in appeals and reviews work) for preparation remains at £49.70. Inflation adjusted from 1998 that figure would be £76.04. The Government proposes to cut this rate by 17.5% to £41 which in 1998 would have been £26.80 per hour. In real terms (inflation adjusted) the proposed cut to this rate is about 66% on where we were in 1998. They proposed rate is below that of most plumbers and car mechanics (if we are looking for comparators).
The cuts are so numerous it is difficult to remember them all but here are just a few:
• payment for more than one telephone advice call,
• routine telephone calls on police station work,
• enhanced rates on indictable only duty police station cases,
• enhanced rates on out of hours duty cases at the police station,
• payment for travel and waiting,
• payment for pre-committal based on what you had actually done, then a fixed fee of £318 (then nothing at all),
• enhanced rates in the Crown Court of 100% or 200% on serious fraud cases,
• not being financially penalised when your client elects Crown Court trail and either pleads or the Crown drop the case,
• not being financially penalised when this happens on a non-elected case by payment of a fixed fee which is roughly half of the trial fee having prepared the case fully for trial.
6. “The principles which underpin these proposals are simple: to ensure that those who can afford to pay do so; to make certain that legal aid is not funding cases which lack merit or which are better dealt with outside court; and to encourage greater efficiency in the criminal justice system to reduce costs.”
They may be simple. That does not make them right or fair. Simple is not always good or possible. The criminal justice system is not a simple process. We are not selling cans of beans or delivering a lorry load of bananas to a supermarket. We are dealing with the lives and liberty of those prosecuted by the State and who are already not on a level playing field against the might of the State. Simple is not enough.
Even Lord Carter said in 2006 that those firms working within the criminal justice system were some of the most efficient around. We have to be as the rates are so poor!
7. “The hardworking public pay for legal aid, and we must deliver a system which commands their confidence and spends their money wisely… This is a comprehensive package of measures to restore the public’s faith in the system”
The system already commands their confidence as evidence by the aforementioned ComRes opinion poll. The public does not need its confidence restored. We are also hardworking taxpayers.
8. “For criminal advocacy, we intend to reform the fee structure, to ensure that cases are resolved as quickly as possible, which will mean less time required of lawyers, and lower costs to the legal aid bill. The impact of these changes will also help remedy the great disparity which had emerged within the legal profession by reducing the payments to that small number of lawyers earning very high fees whilst protecting the majority of barristers who should not lose out as a result of our proposals. Indeed, some of the lowest fee earners will be better off.”
Financially incentivising lawyers to advise guilty pleas is abhorrent. It appeared recently with the elected cracked trial cases and is set to continue here. It sets the lawyer’s interests against that of the client and must be contrary to the SRA principles against conflicts of interest and the requirement to act with integrity. Given that there may be players in the market who are not firms of solicitors, integrity of the non-qualified worker facing targets to get as many pleas in as possible may become a real issue. It is not one we should even be contemplating. It is simply wrong.
9. “Though in Britain today we face serious challenges, this must not undermine our determination for reform or our desire to achieve the best value for the taxpayer. These proposals are bold but fair, and I look forward to hearing your views.”
So there we have it “bold but fair”. Others might say insane. The comments setting out the rationale for the paper are as evidence free as it is possible to be. You are now hearing our views. We hope someone will be listening.
The Financial Case for these changes
We are constantly told that we live in times of austerity and no-one can be immune from it (except MPs if the recent press is accurate). The Lord Chancellor has specifically said that the legal sector cannot be immune from cuts. As stated above criminal legal aid has been cut constantly for the last 15 or more years so we are well aware that the “sector” is not immune from cuts. The problem is that the cuts have been so deep that the supplier base is teetering on the edge of an abyss and the Government is standing behind them nudging them ever closer to the edge.
The foreword suggests a loose-ness or unfamiliarity with the actual evidence available in this area. The Government has set out that it wants to save £220 million by 2018-19 and believes that these radical changes are required to do that. This is simply not the case.
One would imagine that someone within the MOJ would have made a reasoned calculation to come up with a figure as precise as £220 million. It can only have been calculated by reference to a percentage saving or a fixed sum saving either from a known base or to reach a set goal by 2018. The only other option is that it has been plucked out of the air at random and we are sure that the Government would not base policy on such a whim.
The paper was released on 9th April 2013 and was presumably drafted in the months leading up to April. What figures were available to work on at that time? The figures for the financial year 2011/12 had been published in the summer of 2012. The figures for 2012/13 have yet to be published and will not be available until after the consultation period closes on 4th June. At the time of preparing the paper the financial year 2012/13 had not ended so one can only assume that they were working on the 2011/12 figures which are the only ones referred to in the paper itself.
In 2011/12 the criminal legal aid spend was in very round figures £1.1 billion. The sum to be saved is neatly 20% of that figure. It would be a safe bet that the required saving was calculated at 20% of the spend in 2011/12. This is further backed up by comments at some of the MOJ road shows around the country when it was said that if not enough firms were to bid for PCT contracts an administrative cut of 20% would be imposed. Knee jerk rhetoric though this must have been, it does shed a bit of light on the likely calculations for the required savings. Knee jerk rhetoric it must have been because the MOJ accepts in the paper that continued administrative cuts would be unsustainable for the profession in the long term. This was also the apparent view of the MOJ representatives at the recent London road show presentation. They can hardly go on to make such a cut in the light of their own belief in its likely consequences.
Therefore we can infer that the MOJ wants to save £220 million from the 2011/12 figures by 2018. At some roadshows this was confirmed by the MOJ panel as correct (e.g. Birmingham). So where are we with savings since 2011/12?
The figures for 2011/12 do not reflect some of the cuts that had been introduced from 2010 to 2012. There have been so many that it is difficult to keep up. Four spring to mind: a 10% reduction in police station fixed fees, the abolition of the committal fee, the introduction of a tiny fixed fee for litigation and advocacy combined for elected cases that crack in the Crown Court and the further reduction in the advocacy fees.
The figures for 2012/13 are not yet available but a week after the consultation document was published the Legal Aid Agency published its business plan for 2013/14, the current financial year. The projected spend for criminal legal aid in this financial year is £941 million, a reduction on 2011/12 of £139 million (£1.08 billion – 941 million = 139 million). As stated above the CCCG met recently and the expected spend for 2012/13 was accepted by the LAA to be in the region of £950 million. This figure is below the projected spend in the LSC 2012/13 business plan which set the cost at £1.025 billion. However, we will soon know which of these figures is more accurate. If it turns out to be the case that £950 million is more accurate, the projected spend for 2013/14 will be pessimistic in Government terms and it is likely that the actual costs will be significantly less than the projected figure.
The most recent cuts will continue to affect the amount spent as will the continued reduction in the number of cases coming before the courts. Legal aid spending is reactive and when the level of prosecutions drops significantly, the spend will go down.
As mentioned above the fact that these figures include VAT seems to have been ignored. An expected spend of £950 million for the last financial year and the huge reduction on the previous year takes into account the fact that VAT increased from 17.5% to 20% on 4th January 2011. The rise in VAT should have led to an increase in the costs for that financial year probably in the region of £25 million but despite this hidden increase in cost, the actual spend has fallen by £130 million.
Has the MOJ considered what the effect of zero rating legally aided legal services for VAT might have on the profession, the criminal justice system or the Treasury? It would certainly reduce the MOJ budget by 20% in one fell swoop. We accept that it will not result in such a saving to the Government as a whole.
We would have expected the Government to be overjoyed at the effectiveness of their cuts in the criminal legal aid system to date and especially those in the last two years. We would have expected the Government to step back and take stock of the system as a whole and to consider from a reasoned perspective whether further cuts were necessary when they are well on target to reach the figures promised by Mr Grayling.
To be clear and using precise figures, a deduction of £220 million from the figure of £1.08 billion (the precise figure in the paper for 2011/12) means that the target figure including VAT for 2018/19 is £860 million.
It was reported in the Law Society Gazette on 17th May 2013 that, having been made aware that significant savings have already been made, the MOJ stated that the £220 million must be saved on top of what has already been saved: in effect £370 million on the 2011/12 figures – more than a third of the entire budget. This runs contrary to what was said by the MOJ at some of the roadshows. Mr Grayling seemed unsure about the figures when interviewed by Catherine Baksi for the Law Society Gazette on 20th May 2013 when he was still quoting the 2011/12 rounded up figure of £1.1 billion as the criminal legal aid spend. He was also quoted as saying that the fall in volume had not been matched by a fall in the cost of legal aid. He stated that “What we have is becoming more expensive” and in “very tough financial circumstances” introducing price competitive tendering “is not an ideological choice; it is a financial necessity.”
In this interview he sounded like a man badly briefed. The above comments are nonsense and are not supported by any of the evidence. As lawyers we deal in evidence not unsubstantiated rhetoric. As demonstrated above the cost of criminal legal aid is reducing year on year and in the last year or so has fallen dramatically. Criminal legal aid has been the subject of cuts for the last 15 or more years. There has been no rise in rates since about 1998.
It has recently come to our attention that the target figure may be closer to £800 million by 2018/19. This would be reached by aiming to save £220 million from the projected 2012/13 figure of £1.025 billion. This is not set out anywhere in the paper and, if true, is yet another figure to put into the mix. It is completely unacceptable that the Government consults on proposals of this nature and nowhere sets out in black and white what figure it wants to get to by 2018/19. It should be the starting point if the Government is interested in a transparent and honest dialogue through consultation. We have e-mailed a request to the MOJ to confirm what figure the budget is to be set at for 2018/19 so that we know exactly what the figure to be saved actually is.
The Minister seemed at the time of the Law Society Gazette interview to be off the pace on the figures. It seems to us that on the figures available and given the savings being made at the moment, the whole system of PCT is as unnecessary as it is unworkable. If the conservative target of £941 million is reached for 2013/14, the Government only needs to save a further £81 million in the four year period 2014-2018, which equates to £20 million per year. This is achievable but making no cuts at all as the down turn in volume is most likely to account for these savings in due course.
It may be that the system needs a review. However, it does not need urgent cutting as that work has been done and been done effectively. What is required is a considered and independent review of the Criminal Justice System as a whole, by Royal Commission or Public Inquiry, to review exactly where there may be savings to be made across the whole system. This may fall on legal aid, it may not.
The Lord Chancellor has lost the confidence and trust of the profession by not coming to them initially to engage in a constructive debate and to discuss the possibility of savings within the system. Bringing out this paper based not on evidence but misconceptions and allowing 8 weeks for responses is unhelpful and will get the response it deserves. It is not enough for him now to say that he wants alternative proposals from the profession. We cannot easily cost any alternative proposals and in fact further cuts are in danger of undermining the whole structure of criminal legal aid in any event as the supplier base is so fragile.
The criminal justice system works together and it is not a sensible approach to chip away at various parts of it as if they were unconnected. It all falls within the MOJ remit and must be considered as a whole. The savings required are miniscule in any event unless it is decided that goalposts will be moved to demand the £220 million on top of savings already made. This would be dishonesty of the highest order and we are sure that the integrity of the Lord Chancellor would not allow it to happen.
Eligibility, Scope and Merits
Restricting the scope of legal aid for prison law
Q1. Do you agree with the proposal that criminal legal aid for prison law matters should be restricted to the proposed criteria? Please give reasons.
No we do not agree with the proposed restriction.
It is our view that the current system involving the sufficient benefits test and where necessary prior approval from the LAA is sufficient to safeguard that legal aid funds are not spent on unmeritorious cases.
Recourse to the internal prison complaints system is not a sufficient safeguard for prisoners in the absence of the availability of legal advice. Issues of prisoner treatment are extremely important not only to the individual prisoner but to society as a whole as mis-treatment of people in prison cannot go unchallenged. The use of the complaints procedures for these cases and those removed from scope concerning re-categorisation etc is insufficient to safeguard the rights of those imprisoned to be treated fairly and justly within the system.
This is also likely to be a false economy as the number of matters referred internally to the complaints procedures would increase and presumably add further cost to the prison budget.
The current system allows for these cases to be monitored and only meritorious cases to be taken on under public funding. It seems incompatible with the human rights of prisoners to be refused public funding for a case which the LAA would currently consider worthy of public funds.
Imposing a financial eligibility threshold in the Crown Court
Q2. Do you agree with the proposal to introduce a financial eligibility threshold on applications for legal aid in the Crown Court? Please give reasons.
Q3. Do you agree that the proposed threshold is set an appropriate level? Please give reasons.
We do not agree with the imposition of a financial eligibility threshold in the Crown Court. If one is to be imposed, however, it needs to be high enough to ensure that those affected can actually afford to pay the fees. Currently that limit is too low.
The Law Society Gazette (30/5/13) reported that four out of five adults in England and Wales would be unable to pay for a lawyer were they accused of a crime, according to a survey by Populus commissioned by the six bar circuits and Criminal Bar Association. They would have to represent themselves or even remortgage their homes.
The poll showed that 80% of adults would be unable to afford the average £10,000 legal fees incurred for a three-day trial, and would be forced to represent themselves. Of the 2,036 adults who took part, 75% said that a person accused of a crime who cannot afford to pay their legal fees should be entitled to financial help.
This is important evidence of which the Government should take careful note. This is not rhetoric from lawyers but a poll conducted with members of the public, the same public that the Government claims has a loss of confidence in the legal aid system. This is further evidence, if any more were needed, that such a claim is incorrect.
The poll goes on to say that 64% of respondents said there would be more miscarriages of justice and wrongful convictions as a result of these changes to eligibility and 60%, said the cuts would hit those on middle incomes hardest.
We entirely accept that the limit is set at £37500 of disposable income for a household. As recently as 1st June, the Lord Chancellor has said that this would equate to an income of £100,000. We have seen no calculation to demonstrate this to be the case and suspect that the figure will be much lower.
The problem is compounded by the fact that under the proposals, costs could only be recovered by acquitted privately funded defendants at legal aid rates and only if they had applied for legal aid and been refused on means. Defendants would have to undertake an administratively expensive and wholly unnecessary exercise of applying for legal aid even where it is abundantly clear that they will not be eligible just to ensure they recover a tiny fraction of their costs.
This situation pertains in the Magistrates’ Court at the moment and is grossly unfair. It should be reviewed and repealed and not extended to the Crown Court where the discrepancies will become much greater. If the State chooses to prosecute a citizen for a criminal offence, denies them the right to a lawyer under legal aid but fails to convict them, it has to be incumbent on the State to compensate that person for the financial loss involved at the very least in their legal fees.
Given the removal of choice, it is most likely that other defendants will either represent themselves or seek to find ways of paying for lawyers of their choice even if eligible for legal aid. This will force people into debt and these individuals, if acquitted, will receive no return of their fees at all. This is unacceptable.
We would expect that the use of restrained funds to fund legal aid contributions will save money for the system. It would save more if these funds were able to be used to fund defences privately so that legal aid was not used at all in such cases. This would have to be coupled with full reimbursement if the case was not proved against the individual. We would be interested to know what this saving is expected to be and how much it will contribute to the required £81 million balance from 2014.
Introducing a residence test
Q4. Do you agree with the proposed approach for limiting legal aid to those with a strong connection with the UK? Please give reasons.
We do not agree that introducing a residence test is in any way appropriate. It would prevent individuals from accessing justice in a myriad of cases and is discriminatory and grossly unfair. As an example it is our understanding that this test would have prevented access to justice for the family of Jean Paul de Menezes which is perhaps the starkest example imaginable of why this test is completely inappropriate.
It is likely to adversely affect many of the most vulnerable people in society including children and those trafficked into the country. This is not an acceptable risk for the Government to take to save money.
Paying for permission in judicial review cases
Q5. Do you agree with the proposal that providers should only be paid for work carried out on an application for judicial review, including a request for reconsideration of the application at a hearing, the renewal hearing, or an onward permission appeal to the Court of Appeal, if permission is granted by the Court (but that reasonable disbursements should be payable in any event)? Please give reasons.
No we do not agree. This is plainly absurd. The numbers of cases that this would apply to is small and the potential savings vanishingly small. It is completely unacceptable to place such a financial risk at the door of solicitors. The case will be assessed for merits. Judicial review is an important check on the mechanisms of State and must be preserved at all costs. To make this change will discourage solicitors taking on challenges of this nature which will no doubt be of considerable benefit to the Government which often finds itself on the wrong end of such cases.
The case for these changes is simply not made out and the comments of the 90 QC’s signing the letter to the Daily Telegraph mentioned above adequately sets out the case against such changes and is a view that we fully endorse.
Borderline cases
Q6. Do you agree with the proposal that legal aid should be removed for all cases assessed as having ‘borderline’ prospects of success? Please give reasons
No we do not agree and it is mightily disappointing to see a Government suggesting that such cases should no longer receive funding when accepting that “the cases to which the “borderline” exception applies are high priority cases, for example cases which concern holding the State to account, public interest cases, or cases concerning housing.”
What more deserving cases are there of funding than those that challenge the State, are a high priority, have high public interest and relate to housing? It is disingenuous to limit such claims.
Introducing Competition into the Criminal Legal Aid Market
Even the title of this chapter is misleading and insulting. There is competition in the criminal legal aid market. This competition is based on quality of service to clients. Those firms who do not provide a good service do not have recommendations made to them or repeat business. This firm relies much more heavily on own client cases than duty allocated work and, as a result, is able to survive in a very competitive market and make a profit.
Case for reform
There is no case for reform. There is no financial case for it as set out above. There is no other case for it. Carter was rejected 7 years ago. The last Government sought to introduce PCT in about 2009 and realised that it would not work and could not work in the market for provision of criminal defence legal services. It cannot work now either. The market is too complex and the supplier base remains too fragile. If destroyed, as it would be under PCT, it will not be restored in the future. Once destroyed it is gone for ever and as Dominic Grieve said of the last PCT proposals:
“We really should be concerned about the lasting damage that could be done if we’ve got this wrong. It could permanently damage the provision of criminal legal aid”
These proposals are wrong and will permanently damage the provision of criminal legal aid.
One example of PCT that is not mentioned in the paper is that of the outsourcing of the interpreters’ contract or indeed that of tagging services. Both have been an unmitigated and utter disaster. The interpreters’ contract has caused untold delays and extra expense within the criminal justice system, often at the direct expense of criminal defence lawyers who do not get paid extra for each hearing aborted due to the lack of an adequate interpreter. More money has had to be paid to shore up the supplier.
The tagging contracts are under investigation for over claiming or in common parlance – fraud.
Economies of scale
It is irksome to hear the Minister say that these proposals will help small businesses. They will not. The suggestion is that businesses can “gear up” to take on larger contracts by merging or forming consortia or other such business structures. Economies of scale cannot be made in this way in most cases. The areas are so large that multiple office bases are likely and any consortia or merged enterprise would most likely have to retain numerous offices thereby making no savings whatsoever. If a merged business were to move into one office, this office would have to be paid for, adjustments made to adapt it for use as a large solicitors office, deposits for rent paid, leases for previous offices paid up to the next break clause, dilapidations paid for, equipment leases given up and paid up to the end of the term, moving expenses paid, signage and re-designing paid for in relation to stationery, websites etc, contracts for services paid up and new ones entered into, computer equipment replaced etc etc etc.
This firm has recently moved offices. We moved 100 yards. It cost us a considerable amount of money running up towards six figures. We had to adapt and furnish the new premises and pay dilapidations on the old premises. We were able to carry on certain leases but invested in new equipment, a new telephone system, internet provision, computer equipment and so on. Our new lease is for 12 years. We negotiated break clauses every three and a half years against the wishes of the landlord because we knew how uncertain the legal aid market is and how Governments love to interfere and seek “reforms” to the system on a regular basis – currently a major upheaval every three years and constant cuts in the meantime to keep things ticking over.
If these proposals come in, we will not bid. We will have until July 2015 to decide if we need to give notice to close the firm without incurring the expense of three and a half years’ extra rent. These changes are not cost free and the problem may be that those suggesting that firms can just gear up have never actually worked in business and know absolutely nothing about the impracticalities of their absurd suggestions.
There is talk in the paper of “firms having the confidence to invest in the restructuring required in the knowledge that they would be in receipt of larger and more certain returns” This is complete nonsense. There is only one certainty with these contracts: that you will go out of business. The contracts are for a short period, allow you access to a fixed percentage of an unknown amount of work of an unknown quality for which you will need to employ a large number of extra staff at extra cost and likely have to move premises at huge expense and for that you will be paid a very considerable amount less than you are at present.
Those firms with a good reputation who attract the good quality work and have a loyal and regular client following can only lose under this system. Factory processing of cases pushing everyone to a guilty plea on minor and uncomplicated cases only might give a firm an outside chance of survival. Survival not prospering. Although by the second round the price will have to go up as competition from the market will have been completely removed and only those with the first contracts will be standing if they have been able to survive that far.
Small and Medium Sized Enterprises
It is believed that these proposals in some way assist SME’s. The proposals will destroy over 75% of the 1600 SME’s currently providing criminal legal aid services. The rates are so poor and the “harmonisation” of fees for pleas and trials so absurd that it cannot sustain any size of business structure currently seen in the market. We are fed up hearing the argument about swings and roundabouts. With every consecutive cut, the roundabouts are being replaced with more swings (assuming swings are the bad piece of playground apparatus) and soon the playground will only contain swings or, perhaps more appositely by then, the swings will be removed and replaced with slides.
Q7. Do you agree with the proposed scope of criminal legal aid services to be competed? Please give reasons.
Q8. Do you agree that given the need to deliver further savings, a 17.5% reduction in the rates payable for those classes of work not determined by the price competition is reasonable? Please give reasons.
We do not agree with PCT at all and cannot therefore cannot agree with the scope of the services to be competed or the reduction on those not competed.
We have questioned the amount of savings that remain to be made. We have also made the point about pay cuts and freezing of rates since 1998 against an inflation rate of 53% in that time. Appeals and reviews is one area of work where a 17.5% cut is to be imposed. This will make the work even less viable than it is now. There is a reason why not many firms do this work: it is difficult, time consuming and very poorly paid. The rate remains as it was in 1998. The cut would be to reduce the rate from that figure by 66% when adjusted for inflation. This is unsustainable. However, the proposed contract will mean that every “winning” firm will have to undertake this work in as much quantity as comes to them. They have no choice and subject to the sufficient benefit test would have to undertake the work. It could only be undertaken at a loss even if undertaken by non-qualified staff.
This work is important and cannot be sidelined in this way. Numerous miscarriages of justice have been rectified via this funding route. If PCT comes in there will be a huge increase in miscarriages as firms will not be able financially to undertake the amount of work required in a trial when paid the same rate as a plea. The whole process mitigates against quality representation especially for anyone insensitive enough to the financial needs of the firm to insist upon having a trial.
Although not specifically stated in the document, it is understood that all winning bidders will have to provide advice as required under Appeals and Reviews and prison law. This will no doubt mean that solicitors of supervisor status will have to be employed by that firm. Currently there are few firms undertaking Appeals and Reviews work with any regularity and most firms will do their best not to deal with it as they do not feel they have the specific expertise to undertake that work. Currently it is possible to have a contract just for Appeals and Reviews work but it would appear that this will no longer be possible. It is something that we strongly object to as there may well be firms with this specific expertise who will not be able to or will not wish to (more likely) bid for a criminal contract but who may wish to continue doing Appeals and Reviews work. The rates on offer (£41 per hour in London) will be problematic and are likely to mitigate against this but the option should at least be available. There is no margin in £41 per hour (indeed it is likely to be below cost) and therefore no margin to be made by providing services to a contracted firm as an outsourced agent.
It is also bizarre that in these cases the client will have a free choice of lawyer regardless of geography and the firm will not be able to refuse to take the case if it passes the sufficient benefits test. This is even more bizarre when you realise the current antipathy of the LAA towards firms representing clients on these cases in distant prisons but may be explainable by the idea that disbursements are not remunerated. It is not clear if this concept extends to Appeals and Reviews work.
This is specialised work. The LAA is aware that there are few firms nationally providing a quality service in this area and that dabbling in it is rather dangerous and provides the client with no service at all. Indeed it is a positive dis-service as once badly advised on appeal they may be prevented from obtaining further advice from a firm of more experience due to the rules on claiming.
The cuts extend to the Court of Appeal and Supreme Court as well. They are equally unwelcome at this stage in the procedure. Where legal aid is granted for a litigator at the Court of Appeal it is usually because there is a complex matter to be considered that requires extra work by a litigator.
Confiscation proceedings are specifically excluded and it is not clear if they are to be subject to an administrative cut of 17.5% as well.
Q9. Do you agree with the proposal under the competition model that three years, with the possibility of extending the contract term by up to two further years and a provision for compensation in certain circumstances for early termination is an appropriate length of contract? Please give reasons.
No. We do not agree with PCT. A contract of this length provides no certainty except liquidation but that is inevitable regardless of contract length. It does ensure that if any companies survive this long, the second round of bidding will see a cartel type market and a rise in price.
Q10. Do you agree with the proposal under the competition model that with the exception of London, Warwickshire/West Mercia and Avon and Somerset/Gloucestershire, procurement areas should be set by the current criminal justice system areas? Please give reasons.
Q11. Do you agree with the proposal under the competition model to join the following CJS areas: Warwickshire with West Mercia; and Gloucestershire with Avon and Somerset, to form two new procurement areas? Please give reasons.
Q12. Do you agree with the proposal under the competition model that London should be divided into three procurement areas be aligned with the area boundaries used by the Crown Prosecution Service? Please give reasons.
Q13. Do you agree with the proposal under the competition model that work tendered should be exclusively available to those who have won competitively tendered contracts within the applicable procurement areas? Please give reasons.
Taking these four questions together, the answer is no as we do not agree with PCT at all.
Limiting contractors to a specified area is anti-competitive and will drive down quality. It will deprive certain defendants of specialist advice from solicitors that specialise in certain areas of work such as terrorism, protest work or baby shaking cases.
This firm specialises in animal rights work and we represent defendants all over the country charged with various often quite obscure offences related directly to protest or in some cases to animal rights protests specifically (such s145 SOCPA 2005). Our expertise in these cases can lead to advice as to an early guilty plea which is accepted due to the clients’ awareness of our expertise and trust in that knowledge. Alternatively it leads to an acquittal or the case being dropped as we are able to demonstrate to the Crown or the Court that the offence has not been committed. This is a frequent occurrence particularly in the Magistrates’ Court.
In a lot of these cases we act for multiple defendants. In two recent VHCC cases we acted for 7 out of 10 and 4 out of 7 defendants (having lost 2 and 1 in each trial to potential conflicts initially). Had the PCT proposals been in place as each client was arrested at a different police station around the country (there were 35 arrests, 25 of which were our clients, from Folkestone to Alton, to Merthyr Tydfil to Charing Cross), each would have had a different solicitor. Instead of the one contract on case one there would have been seven and there would have been four instead of one on case two. In case two we cost less than might otherwise have been the case as we had acted on trial one. We saved the LSC literally hundreds of thousands of pounds. The case involved over 50,000 pages of evidence. These savings would be lost under PCT. This expertise would be lost under PCT. These are costs which work negatively on the proposed savings but which the Government has not considered at all.
We are in South London. It is proposed that there are 18 firms in this area which will presumably stretch from Kingston in the west to Woolwich in the east and from Kennington in the north to Croydon, Bromley and Bexley in the south. It is an enormous area.
It can take a couple of hours to get across this area from Kingston to Woolwich. This mitigates against any economies of scale for the firm and will be an unacceptable burden on a resident of Kingston who on arrest is allocated a firm based in Woolwich or Lewisham, or Bexley. No choice means more cost for the client in time and money in travelling to see their solicitor.
The extra costs involved in clients ending up with more than one representative or in the case of many clients choosing to represent themselves will eat away at any savings made by introducing the scheme.
Q14. Do you agree with the proposal under the competition model to vary the number of contracts in each procurement area? Please give reasons.
Q15. Do you agree with the factors that we propose to take into consideration and are there any other factors that should be taken into consideration in determining the appropriate number of contracts in each procurement area under the competition model?
Please give reasons.
No as we do not agree with PCT at all. The numbers of contracts seem completely random. In London 18 contracts are to be tendered for south London, 27 for North and East and 38 for West and central. This will lead to a huge discrepancy in the value of the contracts and the amount of work to be undertaken.
The table below demonstrates the discrepancies for London, showing how many cases a firm in each area might expect to receive:
Scheme Type of case Per Year Per Month Per week
W & C PS 1130 94 22
MC 567 47 11
CC 220 18 4
N & E PS 1610 134 31
MC 1003 84 19
CC 216 18 4
South PS 2781 232 53
MC 1396 116 27
CC 367 31 7
What is the justification for this?
The PDS should simply be abolished as it is not cost effective. This would save some money for the system.
Q16. Do you agree with the proposal under the competition model that work would be shared equally between providers in each procurement area? Please give reasons.
No. We do not agree with PCT as a model. This demonstrates again why it cannot work. You are guaranteeing nothing but an equal share of an unknown number. Volume of cases is falling.
The quality of the work (how many cases would be above 500 pages) cannot be ascertained or guaranteed under this model.
Q17. Do you agree with the proposal under the competition model that clients would generally have no choice in the representative allocated to them at the outset? Please give reasons.
Absolutely not. We understand that because you are trying to guarantee an equal share, you have to deprive clients of the representative of their choice. However, this is completely unacceptable and perhaps the biggest reason why PCT cannot work.
Denying choice is contrary to s27(4) LASPO which has only just been enacted and in our view will be contrary to a proper interpretation of Article 6 of the European Convention on Human Rights.
The e-petition currently circulating and at the time of writing over 72,000 signatures is a very good indication as to the strength of feeling about this particular aspect of the paper. Mr Grayling’s comments to the Law Society Gazette that most people arrested were not great connoisseurs of legal skills was both unfortunate and inaccurate. Those arrested regularly are most certainly able to make an informed choice as to their legal representative and a bad lawyer does not survive very long in this arena.
Ironically those arrested for the first time, those who might not expect to find themselves in the criminal justice system are the ones who have little idea as to which lawyer to choose. However they usually ascertain quite quickly if the one they have been allocated as duty solicitor is any good, is right for them or whether they should change. Access to internet, the plethora of information available on line, friends and family recommendations all lead them to a lawyer of their choice at some point.
Choice is the main guarantee of quality within the system. It is a better guarantee of quality than any contrived administrative method to try to measure quality through accreditation or peer review. If choice is denied to clients, the incentive for the firm with a contract to maintain a quality service disappears as they will be guaranteed the same amount of work regardless of their quality of service. After the initial bidding process, the market is anti-competitive until the next bidding round. By then new entrants to the market are unlikely to materialise and the price may be driven up by the few bidders left and with no corresponding quality assurance.
It is the lack of choice and the resultant effect on the quality of representation that will lead to huge problems within the criminal justice system if this is implemented. This is exacerbated by the proposed payment of the same fixed fee for guilty pleas as for a trial in Magistrates’ Court work and in Crown Court cases with a page count of less than 500.
This will mean that the firm will be under a financial disincentive of some magnitude to prepare trials properly. Every trial would become a case on which money will be lost and in some cases the time taken to prepare the case would be so uneconomic as to give the firm a very real conflict of interest with their own client. This cannot be built into the system of legal aid. One can currently rely on solicitors and those working for them to act with integrity especially given the over zealous regulation exerted by the SRA. However, how will non legal entities employing inexperienced paralegals cope with such conflicts. The figures cannot work using experienced solicitors which is another reason why quality will fall.
It may be best to illustrate this with an example. If a client is charged with burglary on which there are 100 pages of evidence and they plead guilty, the current litigator fee is a little under £400 + VAT. If a client is charged with the rape of a 12 year old girl, the page count is 500 and the trial takes 5 days, the current litigator fee is just under £8000 + VAT. On a plea the fee is currently £3000. This last case will involve ABE video interviews to be considered, issues as to cross-examination of the complainant, potentially other child witnesses with ABE interviews and could engage a solicitor reasonably easily for something in the region of 100 hours or more. The burglary case is likely to take no more than 5 or 6 hours unless there are complications, mental health issues and so on. Unfortunately such issues are common place and often cases are less straight forward than they appear. Under PCT, a bid at 25% below the average (the minimum one might expect to win any truly competitive bid) would lead to a fixed fee for both cases of about £850 + VAT.
It does not take a genius to work out that you will need a lot of straight forward guilty pleas to minor offences to make up for the enormous losses on just one serious case like the above rape example. In this case it is likely that the solicitor preparing the case would be working for about £8.50 per hour and the loss to the firm between the two systems approaches a staggering 90%. No swings and roundabouts argument can justify these kind of figures – they are plain wrong, and frankly insulting.
The pressure on employees of firms in possession of a contract will be to spend as little time as possible on such cases when they are exactly the sort of case that needs experienced and careful consideration. They are time consuming and should be properly remunerated.
The flat fee for pleas and trials will have the same effect on Magistrates’ Court cases, exacerbated by the removal of the ability to claim on a time basis with enhancement for those cases that take up a lot of time. For instance, we recently dealt with a three handed 6 day trial in the Magistrates’ Court. Under PCT the fee for south London would be about £400, although presumably we would have been paid this for each of our three defendants. How can any firm prepare a trial of this nature for that price? We acted for three defendants and our fee has been assessed at over £20,000 such was the time that the case required. At £400 the case could not have been prepared to any standard at all. The cut here is over 98%. The hourly rate would be about £2. Can the MOJ explain how this can be justified at all in any proper system of justice and say with a straight face that quality would not be affected by a flat fee for trials and guilty pleas.
Of course the stock answer is that we can rely on the integrity of solicitors. This is currently correct as we regularly work on cases on which we are paid a fixed fee over and above what we are to be paid. At the police station on any murder case we work for free for at least £600 (12 -15 hours) until we get to the threshold where payment starts again. However, these types of cases and this level of reduction put an enormous strain on the solicitor-client relationship where there are clear and dangerous conflicts of interest.
These cases, especially the incidents highlighted in relation to litigators’ fees are not unusual or exceptional. They are regular and common place. Two more examples from our current case load to illustrate the point:-
• gross negligence manslaughter of an elderly relative in the care of our client who is a person of good character and in their 60’s. This is a case outside of our south London catchment but came to us because we have experience in this difficult area of law (manslaughter by gross negligence). The case has only 430 pages of evidence. It is extremely complicated and involves numerous experts. It is being handled by the managing director and has legal aid for silk and junior. The trial will be 10 days. Currently the trial fee is a miserly £7000. We have already gone beyond that figure based on the rates of pay that we would have expected pre-litigator fee (i.e £111.50 per hour as 100% uplift would have been payable on this case without question). Under the new proposals we could not have done the case at all as it is outside of our area. Had it been in south London, the rate of payment for this case would be £850 on a bid at -25%. Our client simply could not have a fair trial when the firm is being paid so little to prepare a very complicated case at such a low fee.
• A case of dealing in firearms with 440 pages of evidence and listed for a 5 day trial. This is a south London case. The case involves expert evidence as to whether certain items are firearms as defined. The litigator fee is currently a little over £6000. Again under the proposals on a bid at -25% the fee would be £850.
So that you can see the figures that we are working to and check their accuracy at Appendix A we set out a table for London covering the police station, Magistrates’ and Crown Court (less than 500 pages) figures extrapolated from the paper. It is perhaps of interest that the value of these contracts is not a particularly large figure that would justify an increase in the size of our firm by about 300% just to deal with south London. It is important to note that volume is falling and the share of work cannot be guaranteed. As your reputation will count for nothing obtaining the higher interest work and cases over 500 pages or VHCCs is pot luck.
There is no incentive for any firm to increase its overheads or to merge with the huge investment that entails for rates as derisory as those suggested in this document. Banks will not lend on these figures or on contracts of such a length.
The removal of client choice also removes from current firms the value of the goodwill of that firm. The firms effectively become worthless. The work put into establishing reputations of firms by solicitors who have worked so hard over the last 20, 30 or 40 years will be blown away in one fell swoop if these changes come in. Over a thousand small firms will become all but worthless. Thousands of solicitors have worked their entire professional lives to build up a practice with a reputation that they had assumed could be sold on as they approached retirement. These changes and the removal of choice specifically remove that value and render those hard earned professional reputations worthless. How do you think that might feel?
To summarise the objection to removal of client choice and to extrapolate its potential effects to the criminal justice system:
• Removal of choice guarantees an equal share of an unknown number of cases of an unknown type (e.g. they could all be minor matters)
• Clients cannot choose their lawyer based on their perceived quality.
• There is no incentive to provide a quality service above the bare minimum to keep a contract going (whatever that may be)
• The payment structure discourages quality work on trials especially in the lower court and on those cases with evidence under 500 pages – i.e the vast majority of cases.
• Employment of non legally qualified staff to prepare cases will be an imperative for any firm with a contract as costs will have to be cut to the bone (and beyond)
• Quality of advice will fall
• Quality of representation will fall
• Convictions will rise
• Miscarriages of justice will rise
• Prison costs will rise as more people are wrongly sent to prison
• The knock on effects to society as a whole are unimaginable – increases in benefits as those wrongly convicted of crimes cannot get jobs as they have a criminal record, increased levels of depression etc.
• New graduates will not come into criminal law
• The level of expertise drains from the system and this will affect both prosecution and defence
• The pool of skilled candidates for future judicial appointment in all courts dries up (many District Judges are ex-defence solicitors and an increasing number of judges also practised as solicitors. These changes will adversely affect the Bar as well)
• More clients will represent themselves as they cannot get a lawyer they want or a lawyer they trust
• Trials will take longer costing more money for the courts
• The whole CJS grinds to a halt.
There are so many knock on costs to these proposals that they will end up costing vastly more than they might save in the short term on legal aid payments. The debacle of the interpreters’ contract will seem like a picnic by comparison.
Q18. Which of the following police station case allocation methods should feature in the competition model? Please give reasons.
• Option 1(a) – cases allocated on a case by case basis
• Option 1(b) – cases allocated based on the client’s day of month of birth
• Option 1(c) – cases allocated based on the client’s surname initial
• Option 2 – cases allocated to the provider on duty
• Other
Q19. Do you agree with the proposal under the competition model that for clients who cannot be represented by one of the contracted providers in the procurement area (for a reason agreed by the LAA or the Court), the client should be allocated to the next available nearest provider in a different procurement area? Please give reasons.
We now get into the realms of the truly absurd. The system cannot work and if it is brought in one would expect the Government to have at least this basic concept worked out in advance. We are not statisticians and have no idea whether the stupidity of this suggestion would produce an equal share of the market. Personally one can well imagine that a firm allocated those clients whose surnames begin with X might not be as well served as those beginning with W.
As for question 19 – what other choice do you give yourself – heaven forbid you might allow the client to choose their representative.
Q20. Do you agree with the proposal under the competition model that clients would be required to stay with their allocated provider for the duration of the case, subject to exceptional circumstances? Please give reasons.
Of course we do not agree with this as we do not agree with PCT. You are forced into this absurd and potentially unlawful position by the impracticality of seeking to impose PCT on a market for which it is not appropriate. Transfers of legal aid will undermine the guarantee of equal numbers of cases. However, to prevent transfers risk unlawfulness, unfairness and further miscarriages of justice. It will lead to an increase in unrepresented defendants and will increase the time taken to try cases and therefore the costs of trying them.
Q21. Do you agree with the following proposed remuneration mechanism under the competition model. Please give reasons.
• Block payment for all police station attendance work per provider per procurement area based on the historical volume in area and the bid price
• Fixed fee per provider per procurement area based on their bid price for magistrates’ court representation
• Fixed fee per provider per procurement area based on their bid price for Crown Court litigation (for cases where the pages of prosecution evidence does not exceed 500)
• Current graduated fee scheme for Crown Court litigation (for cases where the pages of prosecution evidence exceed 500 only) but at discounted rates as proposed by each provider in the procurement area
Q22. Do you agree with the proposal under the competition model that applicants be required to include the cost of any travel and subsistence disbursements under each fixed fee and the graduated fee when submitting their bids? Please give reasons.
No, no, no, no and no.
We have given some reasons at Q17 above as to why block payments as suggested are unworkable and will lower quality. It is a basic principle that trials cost more in terms of time and money than a guilty plea. The lawyer cannot force a client to plead guilty although these provisions will put the interests of clients and their lawyers into sharp conflict whereby guilty plea advice may become more stringent than it ought otherwise to be. The rates are too poor and equalising the fees across offence type and across plea, cracked trial and trial is a recipe for utter disaster. Examples are given above.
Getting rid of the threshold on police station cases means that payment on the most serious of cases 9as currently) will become even less acceptable. Experience is required in these cases but experience is not paid for under the current system and will be even less remunerated under this proposal.
Why should firms not be paid the expenses of travel etc? It is not as if we can ask the police or the court to come to us! The size of the areas contracted will mean an increase in travel for firms and an increase in costs. It is not acceptable that the expense of this falls on the firms and not the fund.
Answering these sorts of questions becomes more and more exasperating as one realises the sheer hopelessness and utter idiocy of these proposals and one wonders what experience of the system the people responsible for drafting this document actually have. Most recently it was reported that MPs want to vote themselves a pay rise of between 10 and 20% despite the austerity of the times that we are frequently lectured on by them. Apart from the rank hypocrisy of it, one had to laugh at the justification that if you pay peanuts you get monkeys. In a nutshell that sums up these proposals.
You are seeking to pay even below the level of peanuts but expecting a professional service in return. You will get unqualified staff with no experience effectively sending innocent people to prison. This is the criminal justice system, we are not selling ice cream. Our role is as important as that of an MP if not more so. They would not work for these rates and neither will we.
There is nowhere in the questions to object to the idea that solicitors should send representatives to the Crown Court to assist Counsel. We used to do this in every case but once we were no longer paid for it we stopped doing it. Quality of service to the client has undoubtedly suffered as a result but firms cannot be expected to work without payment. If you are to introduce this as a contract term (which is ridiculous), there will have to be a set fee payable to cover the cost.
Q23. Are there any other factors to be taken into consideration in designing the technical criteria for the Pre Qualification Questionnaire stage of the tendering process under the competition model? Please give reasons.
Q24. Are there any other factors to be taken into consideration in designing the criteria against which to test the Delivery Plan submitted by applicants in response to the Invitation to Tender under the competition model? Please give reasons.
Q25. Do you agree with the proposal under the competition model to impose a price cap for each fixed fee and graduated fee and to ask applicants to bid a price for each fixed fee and a discount on the graduated fee below the relevant price cap? Please give reasons.
You cannot build any effective quality assurance into this scheme. We agree with nothing in the proposals to introduce PCT. We will not be bidding if this scheme is introduced. We will not and cannot therefore engage with these questions.
Your implementation timetable is also absurd in its brevity.
Reforming Fees in Criminal Legal Aid
Q26. Do you agree with the proposals to amend the Advocates’ Graduated Fee Scheme to:
• introduce a single harmonised basic fee, payable in all cases (other than those that attract a fixed fee), based on the current basic fee for a cracked trial;
• reduce the initial daily attendance fee for trials by between approximately 20 and 30%; and
• taper rates so that a decreased fee will be payable for every additional day of trial?
Please give reasons.
Please do not use the word “harmonise” which has rather pleasant connotations, when you mean cut.
We have stated above that a single fee for plea, cracked trial or trial is an absurdity. To make this suggestion of any of the fees in the paper demonstrates a complete lack of understanding as to what goes into the preparation and presentation of a criminal case. It is one of the single most damaging proposals in this paper in terms of quality of representation and one of the most dangerous in terms of the financial viability of the proposed scheme to firms mad enough to bid and in this particular context advocates unfortunate enough to find themselves instructed under it.
None of these changes is acceptable. The results of tapering are demonstrated as being absurd when you find the lowest rate falls as low as £14 per day albeit on a type of case where such a length of trial is exceptional.
These cuts will lead to people leaving the criminal Bar, new entrants will dry up and the future will be very bleak for prosecution and defence of criminal cases at any acceptable level and will have a knock on effect to the judiciary.
You are seeking to incentivise financially guilty pleas. You are thereby seeking to influence advice by making it financially better to give one type of advice as against another. This is not acceptable and should be no part of Government and no part of any respectable fee structure.
The fees cannot take any more cutting.
Q27. Do you agree that Very High Cost Case (Crime) fees should be reduced by 30%?
Please give reasons.
Q28. Do you agree that the reduction should be applied to future work under current contracts as well as future contracts? Please give reasons
VHCC work is the most complex that there is within the system. It must be adequately remunerated if lawyers of sufficient quality and experience are to undertake the work. If these lawyers do not undertake this work these cases will become even more unwieldy before the courts and take even longer to prosecute at greater ultimate expense.
The payment on such cases is tightly controlled by the LSC (now LAA). The rates have been eroded over time and now no longer reflect the ex post facto rates previously payable to serious fraud and other complex cases. Inflation will also have furthered the relative reduction.
A 30% cut is an enormous amount to take out of these rates. It will adversely impact on the quality of representation without doubt as these cases become uneconomic.
If the Government is concerned about the payment of large sums to a few QC’s as suggested in the foreword, those specific payments should be scrutinised in the same way that MPs expenses were scrutinised. The pain should not fall on everyone else.
To reduce the rate of pay mid-way through a contract is potentially unlawful. We are not experts in contract law but it would appear to be a basic principle that one party cannot unilaterally change the central term of the contract (that relating to payment) after the start of the contract. Firms would be entitled to consider the contract repudiated and refuse to work under the new terms. This would cause a huge problem for the clients and the courts. It is a basic principle of law and fairness that contracts are honoured. Is it seriously suggested that the Government would seek to renege on all of its VHCC contracts. That is nothing short of a scandal.
Retrospectivity in law is an unusual concept. Changing central contract terms after a contract is signed is a novel concept. That the State should be suggesting it is outrageous and insulting to the profession.
Q29. Do you agree with the proposals:
• to tighten the current criteria which inform the decision on allowing the use of multiple advocates;
• to develop a clearer requirement in the new litigation contracts that the litigation team must provide appropriate support to advocates in the Crown Court; and
• to take steps to ensure that they are applied more consistently and robustly in all cases by the Presiding Judges?
Please give reasons.
It seems it is now the turn of the judiciary to be insulted. No evidence has been presented in the paper to suggest that judges are allowing representation by more than one advocate in cases where it is inappropriate. The current regulations are adequate and appropriate and should be maintained.
Reforming Fees in Civil Legal Aid
Q30. Do you agree with the proposal that the public family law representation fee should be reduced by 10%? Please give reasons.
This is not our area of expertise and we have no experience at all of family work. However, we are aware that significant cuts have been made in this area previously and can see no justification for further cuts.
Most legal aid firms will operate on profit margins not much higher than 10% and often lower. To cut fees at this level must put some firms in danger of financial collapse.
Q31. Do you agree with the proposal that fees for self-employed barristers appearing in civil (non-family) proceedings in the county court and High Court should be harmonized with those for other advocates appearing in those courts. Please give reasons.
We have no experience in this area and would not consider ourselves qualified to make a comment.
Q32. Do you agree with the proposal that the higher civil fee rate, incorporating a 35% uplift payable in immigration and asylum Upper Tribunal appeals, should be abolished?
Please give reasons
We have no experience in this area and would not consider ourselves qualified to make a comment except to say that the proposal looks to us to be potentially discriminatory.
Experts’ fees
Q33. Do you agree with the proposal that fees paid to experts should be reduced by 20%? Please give reasons.
Experts’ fees were recently cut by about 10% in criminal cases. To reduce the rate by a further 20% is unacceptable. Experts play a crucial role in criminal work and to reduce the amount payable to them will seriously undermine the ability of defence lawyers to find suitable experts willing to undertake legally aided work. This is already a problem. It was a problem before the recent reduction and has become more of a problem since that time.
Reducing the rates may well have the effect of driving down standards and the quality of work. It may mean that experts set themselves up working from home in order to reduce costs, they may not be as inclined to keep abreast of recent developments and many will be lost to the system for ever.
Many miscarriages of justice in the past have resulted from poor expert evidence and have been righted by the reliance of better qualified experts. It is our opinion and experience that the Crown pays experts more than we are able to pay them under legal aid.
We have two recent examples of this. In an insider dealing case the FSA refused to divulge the rate paid to their expert when we were struggling to get authority at a sufficiently high level for our expert from the LSC. Eventually the LSC relented, we believe, because the judge was becoming increasingly concerned that the fairness of the trial may be compromised if we were unable to instruct a suitable expert to challenge the Crown case.
We currently have an ongoing trial where the Crown instructed an expert and gave away his report as it undermined their case. We are now seeking to instruct the expert but his rate is not accepted by the LSC as reasonable. This is subject to appeal at the time of writing.
Expert evidence is essential to help prevent miscarriages of justice. There has to be a level playing field between the defence and prosecution when it comes to paying experts. We know that is not currently the case and to reduce defence experts’ pay further will make it increasingly difficult to find suitably qualified experts to work under legal aid rates. This will negatively impact on the fairness of trials and could lead to innocent people going to prison at great expense to the public purse.
Impact Assessments
Q34. Do you agree that we have correctly identified the range of impacts under the proposals set out in this consultation paper? Please give reasons.
Q35. Do you agree that we have correctly identified the extent of impacts under these proposals? Please give reasons.
Q36. Are there forms of mitigation in relation to impacts that we have not considered?
The impact assessments are flimsy and inadequate.
These proposals will decimate BME firms in particular. They will adversely affect the BME, mentally ill and under privileged communities.
The impact assessment in effect accepts that there will be adverse impacts on clients and providers alike but seeks to justify the impact by claiming it is proportionate to save the money required. We do not accept that this is the case although of course we have no experience of undertaking impact assessments. It is a little bizarre to be asked to comment on whether anything else is missing from the impact assessment as this is a matter purely for the ministry.
The reduction in quality will of course adversely affect clients and this cannot be justified or proportionate in any circumstances.
Alternative suggestions
The Lord Chancellor has repeatedly said that he wants the profession to come up with alternative suggestions. We were given no prior warning of this before the consultation and it is disappointing in the extreme that there was no attempt to engage the profession in dialogue before wasting public money producing a paper as grossly flawed as this one.
There is no request in the document to consult on PCT as a concept but merely how it could be implemented. It will be clear by now that the profession in an unprecedentedly united voice says loud and clear that it cannot be implemented and is totally inappropriate for the provision of criminal defence services. We are not aware of it having been tried elsewhere in the world. We are aware of a recent change in New Zealand which is in the process of being reversed as it was such a disaster but we believe that was the imposition of fixed fees rather than PCT. There will be a reason that it has not been tried elsewhere if indeed that is the case. No doubt the reason is that it cannot work.
We have been given only 8 weeks to respond. There may be alternatives but before any alternatives can be suggested we need to know the truth about the numbers. We know £220 million is to be saved. We don’t know why that figure has been chosen. We do not know what the base this figure has to be saved from or the figure that the MOJ wants to get to by 2018/19.
The MOJ has been inconsistent in the figures. We have been told that it is £220 million from the figures in the paper i.e. the 2011/12 figure of £1.08 billion which gives a final figure to reach of £860 million. We have been told that it is to be saved from the 2013/14 projected figure of £941 million. This is simply ridiculous and cannot be right.
We have been informed recently that the final figure is about £800 million which is presumably based on the projected figures for 2012/13. This would in our view mean a reduction of £280 and not £220 million as the only honest and transparent answer to the question must be that the savings come from the published figures (i.e. £1.08 billion). We have emailed a question to the MOJ to clarify the position.
It is important and the MOJ knows that it is important because savings over and above what were expected have already been made following the most recent cuts. The final figure for 2012/13 is likely to be around £950 million so if we are working on the 2011/12 figures as a base, we have made a lot of progress and only have to find another £90 million in the next five years.
If the figure we are aiming at is a discount on 211/12 of £280 million (i.e £800 million target), we have to find another £150 million in five years.
It is respectfully suggested that PCT and the threatened cuts in this paper be removed from the table now. The MOJ needs to implement an independent review of the whole of the criminal justice system all of which is within its remit, to see which sections are wasteful and which are good value. Legal aid will be seen for the incredible value that it is once this type of review is undertaken.
The Government is taking steps to allow restrained funds to be taken into account when assessing contributions to legal aid. This will save some money but we, of course, cannot cost those savings. These will go some way to making up the £90 or £150 million. The rest may well come from the increasing fall in volume such that further dramatic changes and even further small cuts are not necessary.
Without honesty from the MOJ on the figures, we do not know how much we need to save. The goalposts cannot be constantly moved every time we point out a saving that has already been made. Honesty would dictate that the goal is £860 million by 2018/19 and we will get there with very little change at all. If the goalposts are shifting, the Minister needs to be held to account for any manipulation of the figures and the MOJ has to say with absolute certainty what savings are to be made. This cannot be a difficult question to answer.
We would suggest that the expensive PDS be abolished. We do not know how much that will save.
We could suggest a levy on the banks to fund the defence of large fraud prosecution. They were rewarded with £400 billion of public funds (or put another way over 400 years of criminal legal aid budgets) after bringing the economy to its knees a few years ago to put us in the mess the Government claims to be the cause of these proposals. This would remove a lot of money from the budget.
We could suggest a separate budget for VHCC work or terrorist cases. This may not be a money saver but it might allow tighter control (if this is required) of the larger cases that take up a disproportionate amount of the budget.
We would suggest that the MOJ retains the ability of firms to have an Appeals and Reviews only or a Prison law only contract.
None of these suggestions can be developed unless there is a dialogue between the Ministry and the profession and the Ministry can properly cost the suggested alternatives. Indeed if the Minister is serious about wanting alternatives to PCT, they will have to be costed and the Ministry will have to publish their findings on these costs. This would have to lead to a further period of dialogue before any further changes can be proposed. We would expect that if the Government seeks to take up any alternative suggestions, a further consultation on those changes would be required.
There may well be other ideas which could be considered but a dialogue with the profession without a gun to our heads is required along with a wider review of the CJS.
What is abundantly clear is that PCT will not work. What is not clear is how much the Ministry actually needs to save by 2018/19, i.e. what is the target figure for the budget at that date? We think we should be told.
Birds Solicitors
3rd June 2013
