CLSA
Criminal Law Solicitors’ Association
Suite 2 Level 6
New England House, New England Street
Brighton, BN1 4GH
DX 2740 Brighton
Email: [email protected]
Tel: 01273 676725
The Criminal Law Solicitors' Association is the only national association entirely
committed to professionals working in the field of criminal law. The CLSA represents
criminal practitioners throughout England and Wales and membership of the
Association is open to any solicitor - prosecution or defence - and to legal advisers,
qualified or trainee - involved with, or interested in, the practice of criminal law. The
CLSA is responding to the consultation on behalf of its members.
RESPONSE OF THE CLSA TO ‘TRANSFORMING LEGAL
AID: NEXT STEPS’ CONSULATION
Preface
1.
The CLSA once again, as we did in our last response to the original consultation,
acknowledges the enormous pressure that Government Ministers and their civil servants
are under from the demands of the Treasury to reduce expenditure. We are aware of the
enormous financial ‘black hole’ in funding available for judicial pension funds. We also
recognise the political courage shown in reversing major aspects of the first consultation
such as the issue of client choice and Price Competitive Tendering (PCT). We hope to
persuade the Government to listen once again.
However it is the strongly held view of this Association that to impose financial cuts of such
savagery as proposed will trigger the collapse of access to Justice. It is the considered and
sincere view of most of our members, the committee and officers of this association in
common with all other specialist criminal organisations that these proposals are deeply
dangerous and out of the budgetary context of falling expenditure on legal aid that has
taken place in recent years due to previous cuts and the dramatically astonishing collapse in
the number of criminal prosecutions tacitly permitted by central Government.
2.
Further leaving aside the issue as to whether the 2 tier proposal for contracting with
suppliers is workable the CLSA together will almost all other informed opinion believes that
the level of the proposed cuts on top of the drastic reductions recently suffered will be the
tipping point which no amount of consolidation will ameliorate. There will be a collapse of
the system.
3.
We advise the Government of course to listen to all views not just favour those
views it wants to hear. Of the wholly unprecedented 16,000 responses to the consultation
few if any would have argued for the Government to follow the path that it has now chosen.
Indeed there emerged a strong consensus from among the many responses we have seen
for alternative strategies and reforms far more suited to the system we have. It is
disappointing in the extreme that these consistent themes across the responses have been
so dismissed without it seems proper consideration or study and for frankly spurious
reasons. We do not wish to be at all disrespectful but why would a handful of even bright
and talented civil servants have a better grasp of the potential for reform than the 16,000
respondents from the profession, Judiciary and others with expert knowledge? Failure to
listen resulted in the utter debacle of the interpreter contracts causing delay expense and
general mayhem in the system. Failure to listen resulted in the award of tagging contracts at
3 times the cost of the USA system and to criminal investigations.1 We are grateful that the
MOJ listened on broad brush issues such as client choice and the always unworkable PCT
but why default to unsustainable cuts when real and workable alternatives are available?
1
http://www.telegraph.co.uk/news/uknews/crime/10226728/G4S-pulls-out-of-race-for-new-electronictagging-contract-amid-fraud-inquiry.html
Page |2
We understand the political pressure from the Treasury for a ‘quick fix’ but this will rapidly
backfire with newspaper headlines and uproar in parliament when it all rapidly unravels.
The prize within the Governments grasp is for a root and branch reform of legal aid and the
creaking parts of the CJS where it interacts with that. The rapidly deliverable savings (and
accessing of alternate income streams) will be an outstanding legacy for any Government,
popular with the Treasury and the public. If the Government adopts the default option of a
cull of local justice this will backfire rapidly and its consequences very hard to repair without
huge expenditure. Why against recent experience does HMG think its civil servants are right
and 16,000 respondents (all bar a few) are wrong? We want reform and change that
reduces cost without destruction. It is achievable and we ask for the opportunity to prove
that before a fast track but independent inquiry because frankly we know the MOJ would
actually benefit from that exercise.
4.
On the negligible (in number) ‘few’ among us who do dissent , there are in any group
or body a clear minority of eccentric individuals or ‘chancers’ who without proper analysis
or even self-knowledge will tell the Government that they will support almost any proposals
put forward and can make them work (Much fewer in numbers this time we suspect).The
professional organisations for crime specialist firms2 represent between them the genuine
considered voice of the profession and we have all listened to our member’s
representations and having analysed them feel that in number and quality they do grasp the
full import of these levels of cuts. It is not that they are simply saying these cuts are
unwelcome. Who would not say that? They collectively do not feel their firms will be likely
to survive. Random exceptions that you may alight upon do not disprove the absolute
firmness and accuracy of this educated pessimism by the overwhelming majority.
5.
We will not be constrained by standard question format but will also answer these
below within our critique of this consultation document.
6.
If we may we would like to respond now to the Ministerial foreword.
Response to the Ministerial Foreword.
1.
The Minster says: ‘This Government’s commitment to legal aid means we must
ensure that it commands public confidence’. The public does apparently have confidence in
legal aid according to all the polling evidence we have seen. For example: ‘In stark contrast
to the Government’s claims that the legal aid system has lost credibility with the public, the
poll found that 71 per cent were concerned that cuts to legal aid could lead to the innocent
being convicted of crimes. Two-thirds of the public agreed that legal aid was a price worth
2
CLSA,LCCSA,CBA,LAPG,SACHA etc.
Page |3
paying for living in a fair society.’3 Apart from the odd ill-informed newspaper columnist
(now reducing thankfully in number now the press reports on these matters with increasing
accuracy) we are, with respect, unable to see any evidence at all for the Minister to have
doubts about public confidence in legal aid. They do.
2.
The Minister says: ‘No area of our spending has been immune from scrutiny in
these circumstances. Our legal aid system is a major part of my Department’s budget, and it
is therefore appropriate that we look to make savings here too.’ It has never been
satisfactorily explained why the Minister has not fought his corner with the Treasury by
explaining that unlike other Ministries the legal aid section of his department has suffered
on-going reductions in expenditure to an eye watering extent.
The cost of criminal legal is falling and has been for the last ten years.4 The share of the
public expenditure cake spent on legal aid is falling; from 2003-4 to 2008-9 the proportion of
public expenditure which went on legal aid fell by 25%.5 The latest figures for 2010-11
expenditure on lower crime (Local magistrate’s courts) where defendants charged fell by
13% and on higher crime (Crown Courts) by 4%. Our figures suggest that by April 2015 the
Legal aid spend even with vat will be substantially below £1.5 billion figure the MOJ wishes
to achieve.
It has been 16 years since legal aid lawyers had any increase in payment rates despite the
huge increase in overheads over this long period. It is a tribute to the profession that it has
survived at all but the tipping point has been reached. Simply because it is politically
attractive or even defensive to offer the Treasury deep cuts does not make the cuts
acceptable where it puts justice in peril.
3.
Most firms believe that if they lose the duty contract under these proposals they will
ultimately lose their own client base for the obvious reason that all firms rely currently on
duty work to replenish their own client basis as old clients fade away duty clients are
converted by the best firms into an own client. It will mean death to most firms. If
reconstruction is pursued on this basis, the surviving duty firms will not have the immediate
increase in volume to compensate for the reduction in rates if these own client firms remain
for any prolonged period. So the proposals result in two undesirable outcomes.
a) The death of ‘Own Client only’ firms through the drying up of fresh clientele replenishing
their practices from the duty schemes and ;
3
http://www.independent.co.uk/news/uk/politics/survey-finds-two-in-three-people-oppose-legal-aid-cuts8624684.html
4
http://www.crimeline.info/uploads/docs/la1213.pdf
5
National Statistics Office www.statistics.gov.uk/downloads/theme_compendia/AA2010/aa2010final.pdf
Page |4
b)The ‘successful’ bidding firms dying from the lack of promised volume by the non-duty
own client firms clinging to life and in both cases suffering from the mortal wound of the
wholly unattainable and unjustifiable cut in rates.
Chapter 1. Introduction & the Case for Reform
1.1
We of course agree that our country has a ‘world class reputation for impartiality
and fairness’ and that ‘legal aid where necessary is an integral part of that system’.
That is a stirring and impressive thing to say provided that huge obstacles are not put in the
way of accessing legal aid. Such obstacles could be too stringent financial criteria, absurdly
long travel distances for clients and firms and related to this the reduction of the number of
criminal practitioner firms to the point where cuts make client choice illusory.
1.2
‘Public services must be fair to the taxpayer and the recipient, standards must be
high and we must reduce costs so the country can live within its means’.
As we have said above polling evidence demonstrates that the public support legal aid and
that we provide good value. 6 The only evidence from the paper ‘Evaluation of the Public
Defender Service in England and Wales’7, Suggests private practice is very efficient
compared to the Public defender service on a per case basis. (An up to date survey would
assist our argument we suggest and we note the PDS is not to be tainted by crude
competition for duty slots). So The Minister can be satisfied that he knows and the public
believe that the service we provide for the tax payer is very fair value. Cuts are not required
in this sector especially in view of the savings already made due to prior cuts and the
dramatic fall off in work.
1.3. ‘We still have one of the highest levels of legal aid spending in the world, with around
£1 billion of this spent on criminal legal aid. It costs more per head than any other country’
This, as is well known at the MOJ, is an entirely misleading statement which seems almost
designed to deliberately antagonise the profession who are well aware, with all due respect
that it is simply not true. With resignation we repeat again: The calculated misstatement by
the MOJ that UK criminal legal aid is one of the most generous in the world ignores the
actual evidence that the expenditure in the UK was average in comparison other countries
6
http://www.independent.co.uk/news/uk/politics/survey-finds-two-in-three-people-oppose-legal-aid-cuts8624684.html
7
Lee Bridges, Ed Cape et al), 2007 - http://www.law.cf.ac.uk/research/pubs/repository/1622.pdf
Page |5
spend on Judges and civil servants investigating and developing the defence case and is now
falling. 8
1.4. ‘The Government is committed to reducing spending and the legal aid scheme cannot
be immune’
Fortunately for the MOJ you are in a position to point to the already substantial fall in
expenditure in relation to legal aid and say ‘substantially these savings have already been
accomplished with no more or minimal cuts required.' There must be some context to any
proposed cuts and in relation to legal aid it is that expenditure has already reduced through
cuts and the downturn. If the police and the CPS ever decide to prosecute more people
obviously any increase in volume there might be in those circumstances a need to offset
cuts but until that point is reached with volume constantly falling the system cannot take
anymore without major harm. That may not be a popular response within the MOJ but it
does not make it wrong.
1.5.
‘We have to be able to demonstrate to the public and hard-working families on
whose taxes this system depends that we have scrutinised every aspect of legal aid spending
to ensure that it can be justified and that services are being delivered as efficiently as
possible.’
We quite agree. Which of our modest fees are not justified? The rates are 25% lower than
they were and we work hard for them on tiny profit margins. If you can show us which
aspect of our work in representing our countrymen is unjustified we will agree to it being
cut. The public feel we do a good job and are good value for tax payer’s money. Only the
increasingly rare ignorant columnist now writes rubbish about ‘fat cat lawyers’. Most of the
public and the press have been very supportive as have most MP’s including, being fair,
those on the Government side.
1.6. You refer to the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO)
20123. Those measures focused on changing the scope of civil legal aid, and brought about
wide-ranging reform when it came into force in April 2013.
We as criminal lawyers have seen the utter devastation caused to and detrimental to access
to Justice in the civil arena by this policy and we have learned from it. We also saw the
unprecedented 16,000 responses to the first consultation this year on criminal legal aid, that
the devastation to civil legal aid and that high level of response on the criminal consultation
are not, we suggest, unrelated.
8
Justice Committee February 2012 Ministry of Justice ‘Comparing International Criminal Justice Systems’ Part
3 paragraph 3.3)
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1.7. 1.7 to 1.11. All noted. We are not surprised that the Government ignored the
majority of responses which all made the same point that further cuts are not necessary and
are further are unsustainable. This is further consultation is a political response not one
based on the evidence and indeed as this consultation shows later much of the evidence
needed to be obtained prior to taking any decisions which would the prudent and less
doctrinaire way to proceed. We feel insufficient regard has been paid to the alternatives
suggested by the profession for what are reasons which are not clear or frankly valid. We
give two short examples.
e.g.1 ‘abolition of the DSCC and CDS Direct will only make small savings’ when
independent experts instructed by the CLSA and the Law Society point to saving millions of
pounds of tax payers money. Easier to cut the incomes of legal aid lawyers than to disturb
MOJ fiefdoms despite the massive saving in direct costs and the indirect savings achieved by
wiping out pointless intermediaries between police and duty solicitors
e.g. 2 ‘On the suggested loan scheme, the collection and enforcement costs of a legal loan
scheme may be considerable’
So the fact that the DWP already collects CPS costs and fines and compensation is ignored?
The fact the Income tax and national insurance seems to be collected quite efficiently by
HMRC is ignored? A Survey of solicitors and barristers conducted by an academic for the
CLSA asked the question: Do you think that clients should pay a contribution toward their
legally aided defence upon conviction? Yes - 64%; No - 30%; DNI - 6%.
This could be done. It is popular with the public as well, plus clients in our limited research
would support it but the political will is not there to even study the proposal because it is
easier to cut back on practitioner’s incomes than actually reform the system.
Further Consultation
1.11-1.13
Noted and we very much welcome the abandonment of the proposal to
remove client choice.
1.14. This drastic step should be a last resort after all studies have been completed and
the proposals for saving and efficiencies by the profession made subject to independent
review. We frankly and with regret have to say we do not feel these alternative proposals
have been given anything but the most cursory and superficial consideration and they
should be subject to independent scrutiny by experts who would provide a more balanced
approach to the suggestions we made than can be provided by civil servants at the MoJ
answerable to Ministers. We are interested in saving money through reform not
manipulated market strategies. These empirical studies could report within a few months
after the data is collated and other ministries consulted if the political will was there behind
the process.
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1.15. ‘We recognise that not every provider wishes to join with others or grow their
businesses to the extent required to deliver the volume’
No small firms can adapt over night at the speed required. The damage inflicted to many
SME’s in the community will be considerable as well as the human and financial cost to the
country in terms of redundancy. Local access to justice will be threatened by these closures.
1.16. ‘whilst giving those providers wishing to expand their businesses through access to
Duty Provider Work the opportunity to compete to do so.’
The major flaw in this idea is that there will not be sufficient volume to cope with instant
cuts followed by further cuts where own client work is retained by those non duty firms
desperately clinging on like ‘Zombie firms’ who are dead but just in denial. The successful
firms will never increase their client base quickly enough to compensate for the loss of
income through these appallingly high cuts. On its own terms this idea simply cannot work.
It is ‘a train crash waiting to happen.’
1.17. Noted.
1.18. ‘Criminal Justice areas will be the most practical procurement area for competing
Duty Provider Work’
Our members having looked at these proposals in detail produce evidence of so many
anomalies as to undermine confidence completely in the ability of the MOJ to get this right.
There is a very real risk of conflict of interest with so few firms remaining in duty work.
1.19. ‘We are proposing to give firms longer to prepare for this modified procurement
process and our proposal is that all services – both Own Client and Duty Provider - under the
new contracts will commence in spring 2015. Alongside this, we propose a phased approach
to the overall reduction in remuneration. This would mean an interim fee cut of 8.75% in
early 2014 followed by a further 8.75% reduction in fees in spring 2015.’
We are afraid that you are not listening on the issue of sustainability and not prepared to
wait prior to implementing cuts. To expect firms now on a financial knife edge to suffer
8.75% cuts without any attempt to increase volume as they suffer these really demonstrates
how desperately out of touch this proposal is with the reality of legal aid practices present
difficulties. It could not be more catastrophic and reckless. This is not a political game for
us. It is about survival. Firms will collapse and not in an orderly structured way. They will
simply fold. We are at a loss to understand why you cannot see this and many suspect
indifference to us our employees and all our families.
1.20. We note this and are pleased that the MOJ has shown flexibility on the fee scheme
and are consulting upon graduated fees.
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The way ahead
1.21. We are not sure that ignoring the huge weight of contrary opinion is wise.
1.22. The proposed financial eligibility threshold in the Crown Court has dangers of
excluding people from access to justice due to the often sudden impact of a prosecution
upon family finances. The hardship provisions not work at all well. Means testing should be
about collection rates not excluding people from seeking legal assistance.
1.23. On the prison law provisions we adopt and support the views of Association of
Prison Lawyers. 9
1.24. On the residence test we are at a loss to understand (other than on the basis of low
politics) why it is reasonable in a country where innocence is presumed that people resident
in the country for less than 12 months should be excluded from legal aid. We would like to
think that if abroad we and our fellow citizens would not be effectively denied legal
representation in those countries. This goes to the heart for the Governments
misunderstanding of our role and impact on the Justice system. To imagine cases with
unrepresented foreigners will be a cost effective measure is to have no or little grasp of
judicial reality. Ask Judges if they would welcome this. What sounds great to political
activists or rabid newspaper columnists does not necessarily mean it translates into
effective policy. This will have a huge bearing on immigration matters and important public
interest judicial review matters.
1.25. We await the further paper on judicial review. We are deeply concerned that the
proposal will still operate as a major disincentive to challenge abuse of power and will drive
firms out of this work by retrospectively denying payment for the early front loaded stages
in the process.
1.26. We shall comment elsewhere on these various proposals.
1.27. Expert fees. - The 20% reduction proposal will create a risk that the more experienced
experts who can make a real difference in the outcome of a case will no longer be available,
which will lead to miscarriages of justice.
Future Work
1.28. We await the further consultation on the eligibility criteria.
1.29. We of course very much welcome the initiative contained in the recent paper
‘Transforming the CJS: A Strategy and Action Plan to Reform the Criminal Justice System’.
9
http://www.associationofprisonlawyers.co.uk/wp-content/uploads/2013/06/APL-Legal-Aid-ConsultationResponse.Final_.03.6.13.pdf
Page |9
Where we differ from the Government is that many ideas we have and will continue to put
forward will have a considerable impact and should urgently put be in place before cut
backs to legal aid (if still pursued) are considered. At the moment HMG is putting the ‘cart
before the horse’.
Overall Impact on Spending
1.30. You state ‘We have witnessed a small reduction in the overall legal aid budget
between 2011/12 and 2012/13.’
This is disingenuous. The cost of criminal legal is falling and has been for the last ten years. 10
The share of the public expenditure cake spent on legal aid is falling; from 2003-4 to 2008-9
the proportion of public expenditure which went on legal aid fell by 25%.11 The latest figures
for 2010-11 expenditure on lower crime (Local magistrate’s courts) where defendant
charged fell by 13% and on higher crime (Crown Courts) by 4%. It is still falling although you
carefully do not give the recent figures here. It has been 16 years since legal aid lawyers had
any increase in payment rates despite the huge increase in overheads over this long period.
The further £220 million per annum is a figure seemingly plucked out of the air and ignoring
the budgetary context of prior cuts and collapsing volume. Indulge this following point for
simple illustration purposes. Supposing the police and CPS decide to reduce prosecutions by
99% so the criminal legal aid ‘spend’ is only 1% of what it is today? Would HMG still insist
upon cuts of £220 million per annum? Who knows as the present proposed cut seems to
ignore the reduction we have suffered of 25% to 30%? In principle what is the difference?
The point we make here is that the stubborn adherence to the £220 million per annum
figure has no budgetary context. It is a random figure and dangerous as its impact will be so
great no firm of any size with or without a contraction in the number of suppliers could
survive these proposals.
1.31. Once again you state ‘We note that, even after implementation of all of our
proposals, England and Wales will still have one of the most generous legal aid schemes in
the world, with a budget of around £1.5 billion per annum ‘
Once again we reply with the known and independently verified truth. The calculated
misstatement by the MOJ that UK criminal legal aid is one of the most generous in the world
ignores the actual evidence that the expenditure in the UK was average in comparison other
countries spend on Judges and civil servants investigating and developing the defence case
and is now falling. 12
10
http://www.crimeline.info/uploads/docs/la1213.pdf
11
National Statistics Office www.statistics.gov.uk/downloads/theme_compendia/AA2010/aa2010final.pdf
12
Justice Committee February 2012 Ministry of Justice ‘Comparing International Criminal Justice Systems’ Part
3 paragraph 3.3)
P a g e | 10
We would also point out that the actual spend paid to criminal legal aid lawyers is nowhere
near the oft quoted £1 bn as this fails to consider the 20% VAT element and the substantial
amount of disbursements such as expert fees etc. Plus it ignores the sums recouped through
contributions and recovery of defence costs (RDCO’s) of costs. The real figure is a relatively
tiny (relative to other departments) £680 m. Thus the Government target for savings has
already been achieved. An honest approach to the figures would be very welcome.
Chapter 2. Response to consultation
2.1 -2.7.
We do not propose to add anything to these general points here as we shall
pick up some of these points elsewhere.
Imposing a financial eligibility threshold in the Crown Court
2.8
The eligibility threshold of disposable household income of £37,500 or more in the
Crown Court is a good headline if it is considered that hard pressed middle income families
are wealthy. We do not. The often sudden onset of a criminal prosecution will leave families
dependent upon claiming hardship which is humiliating, time consuming causing delay, and
often as all defence lawyers will confirm the process is bureaucratic and obstructive. It is
unnecessary and discriminates against middle income earners who find themselves
suddenly accused of crime and yet have insufficient capital savings to suddenly be forced to
fund private legal representation. These people should still be entitled to legal aid but
required to repay on conviction by instalments as rapidly as possible. (Immediately if funds
are by then available).
2.9
‘We consider that the Legal Aid Agency’s (LAA) administrative processes are sufficient
to mitigate the potential for additional delay, and that the hardship review will mean that
defendants will not be forced to represent themselves, as some respondents claimed’
We regret to say we regard this view as pure fantasy. Our members experience of the LAA
operation of hardship procedures at all levels are entirely at odds with this Government and
Panglossian view.
2.10
Noted
Introducing a residence test
See our comment at 1.24 above. This will have a huge bearing on immigration matters and
important public interest judicial review matters. We feel this is a mean spirited measure in
our view and against the spirit of and unworthy of our country. Is it really suggested we
have ‘legal aid tourists? Where is the evidence for that?
P a g e | 11
Paying for permission work in judicial review cases
2.18 – 2.20. We are pleased the Government are thinking again and consulting further on
funding early stages of the judicial review process. We refer you to our earlier comments.
Introducing Competition in the Criminal Legal Aid Market
2.24 – 2.26. We remain to be convinced that the proposed model is viable and further
evidence must be sought prior implementation as the threat to access to justice is real with
a danger of wholesale collapse. We do not wish to be proved right about this as by then it
will be too late for recovery. HMG should proceed cautiously on an untried and untested
model. In particular economies of scale will not work if per case the fees are so low and
geographical distances so vast as to prove uneconomic. The Government’s intention to
bring in any cuts before any benefit of increased volume for the survivor of this bidding
process is recognised by every informed commentator as breathless in its recklessness and
lack of judgement.
Client choice
2.27. It would be churlish not to express approval of the withdrawal of the threat to client
choice and we do so. We make the simple point however that ‘client choice’ is illusory if
there are insufficient local firms left after a culling process through the 2 tier process and as
a result of unsustainable cuts.
Price as an award criterion
2.28. We are pleased that HMG has abandoned ‘a model that does not include the
evaluation of tenders on price ‘. There are in the profession firms that would put in suicide
bids out of terror or self- delusion (or arrogance in the belief that they are uniquely right) on
an unsustainable basis that would have accelerated collapse of the whole system.
Number of contracts
2.29. It is about time that this was said bluntly. The reason why the market has proved
unsustainable is due to instability caused through failure to maintain legal aid rates at a
reasonable level. This has led to market fragmentation with firms unable to pay the salaries
of employees to the value appropriate and young solicitors feeling it necessary to open their
own firms to gain the small profit element for them. This makes the market even more
unsustainable especially with the over reliance upon duty slots. However ‘we are where we
are’ and some adjustment of the market place may be inevitable but we make these points:
a)
Firstly there needs to be much more will and effort behind efforts leading to
efficiencies in the CJS and to the accessing of alternate income sources put forward by all
the professional groups. The similarity of these proposals from these disparate groups may
P a g e | 12
be amazing co-incidence but is more likely that the collective wisdom individually
contributed by these groups suggests that their experience and knowledge has led to the
same conclusions.
b)
The Government should first allow these proposals to be subjected to independent
scrutiny so that we can have a wholesale and holistic reform of the whole CJS and its
interaction with legal aid. This will produce far greater savings in our view than ill targeted
cuts to legal aid.
2.30
Noted
2.31 We note the ambition to ‘deliver Duty Provider Work large enough in volume and
value to be sustainable in their own right’. Firstly we are not sure if this means
independently of additional own client work? We are sceptical as to duty contracts ever
being ‘sustainable in their own right’ without own client work in addition not least because
the distances involved across the whole CJS areas are considerable and the individual fees
being offered are so uneconomic as to make sustainability something of a pipe dream on
case by case basis. Having lots more work to do on an almost entirely uneconomic basis
simply means that firms with that greater volume do all the work at a loss. The rates on
offer are simply far too low to make this work.
Geographical areas for the procurement and delivery of Duty Provider Work
2.32
Noted but see our 2.31 above
Procurement process
2.33 Noted and we await further information after you have collated these views. What is
the process of obtaining views as we are concerned that this should not be too restrictive as
most of the practitioner groups were not consulted upon the 2 tier proposals?
Contract award / implementation
2.34 You propose to ‘start the procurement process in early 2014, award contracts in late
2014/early 2015 and the service would commence in spring 2015’. Given the considerable
amount of outstanding information acknowledged throughout this Government paper as
remaining to be obtained or needing further consultation or research we consider this time
table to be over ambitious and if this process is rushed will be error strewn will likely led to
wholesale market collapse.
Scope of the contract
2.35
We note this
Contract length
P a g e | 13
2.36 Our view is that we and our Banks need the certainty of lengthier contracts and the
end of the constant upheaval of the contracting process every few years. Why is this
necessary if provision is made for new entrants with retention of a certain percentage for
that purpose with low performers statistically dropping out? This should be a rolling
contract for most firms if they continue to match quality standards.
Remuneration
2.37 1.
The proposed a price cap 17.5% is an astonishingly savage cut seemingly
without regard to the many years since rates were increased (16 years) or the reduction in
volume. With cuts in local rates they amount in reality to cuts of up to 43% as we shall
demonstrate. No firm whatever their size could provide any reasonable service in
accordance with regulation and their professional duty to clients and survive. That is the
overwhelming view of the profession who have responded to us.
2.
The phased approach to the reduction, beginning with an 8.75% interim fee cut in
early 2014 without any compensating increase in volume appears to us as a form of state
assisted euthanasia as firms cannot cope with the rates now. The firms that you will wish to
deal with in the second phase will be fortunate to have survived. We are not being alarmist.
This not a negotiation point. We are all genuinely fearful. You may as well simply say you
do not believe that ordinary people should have legal representation in the face of state
funded prosecutions and put us all out of our misery now as these proposals offer no real
hope for survival to anyone we believe except to the deluded and mathematically
challenged.
3.
We approve the retention of an escape mechanism for non-standard cases in the
magistrates but the level at which the escape is triggered is far too high we suspect to be of
great assistance especially in relation to not guilty matters.
We accept that banding has the attraction of not being a single fee and avoids a page count
plus would result in a more efficient payment system and permit earlier payment. We
welcome this.
Conclusion
2.39 Having ‘considered, and given due weight to the responses to the consultation’, we
wold have hoped that these 16000 responses would have led to the abandonment of cuts
for the reasons given elsewhere.
Interim Payments
2.40
We very much welcome these to aid cash flow.
Reforming Fees in Criminal Legal Aid
P a g e | 14
2.41
We note the expressed ambition for these ‘reforms’.
Restructuring the Advocates’ Graduated Fee Scheme
2.42 – 2.44
Noted
Reducing litigator and advocate fees in Very High Cost Cases (Crime)
2.45 The 30% reduction in fees for large cases ignores the fact that these cases require
additional work. The Prosecuting authorities spend a great deal of money and time in
preparing and presenting these case for the court but this work may be undone by
discouraging defence teams from maintaining the necessary skills to assist.
2.46 We remain concerned about the unfair differential between the CPS advocates and
the defence and do not consider this just.
2.47 We strongly object to these changes not being subject to proper debate in
Parliament. The impact on the CJS will be so severe and with the likely collapse of most
defence firms, the changes constitute such a distortion to the scales of justice that it is
outrageous they can be implemented by stroke of a ministerial pen without a full debate
upon their constitutional implications.
Reducing the use of multiple advocates
2.48 If it is suggested that on these appalling rates we will be able to fund the change
effected in litigator contracts to require greater support to counsel from the litigation team
then we have to say that this backward step should not be contemplated without our
receiving financial support. How on earth are we expected to fund this expansion of
overhead expenses without additional funding? It cannot be done in the real world in which
we operate.
2.49 – 2.52. We shall leave Counsel and HCA organisations the room to comment further
but what assurances are there that judicial discretion will not be fettered by central
government?
2.53 See reply to 2.48. Defer permanently please if you will not fund firms to provide
support to Counsel.
Reforming Fees in Civil Legal Aid
2.54 – 2.60. We defer to and support our colleague’s views from among those that
practice in the civil arena.
Removing the uplift in the rate paid for immigration and asylum Upper Tribunal cases
2.61 – 2.62. We defer to and support our colleague’s views from among those that
practice in the immigration arena.
P a g e | 15
Expert Fees in Civil, Family and Criminal Proceedings
2.63 – 2.64. Noted but in criminal proceedings the fees must not be reduced to such a
level that effectively no expert will be prepared to offer their services. They must not fall
below the level paid by the Crown to their independent experts to ensure equality of arms.
We are very concerned by the proposal for rates payable to interpreters outside London to
be reduced by 12.5%. Frankly the recent changes to the interpreter contracts has been an
object lesson in the need for caution against over ambitious attempts to cut and we are
frankly fearful of yet further chaos caused by this measure. Already proceedings are very
often delayed due to the lack of or late arrival of an interpreter, who due to the current
rates are simply not prepared to undertake the work or are prepared to do so, but are not
fluent in the particular language required.
Part Two: Further Consultation
You say ‘Nearly 16,000 responses were received following the Transforming Legal Aid
consultation published in April’ and ‘all views expressed have been carefully considered and
it is on the basis of these that the proposals set out in Part 1 have been determined’.
We put this bluntly. It is our belief that of those unprecedented 16000 responses very few
suggested the present trajectory of government policy. In fact we would suggest that by far
the majority have opposed cuts to anything like the degree proposed or at all. It is a
depressingly familiar story that whilst acknowledging the very welcome reversal on client
choice and PCT nevertheless on the crucial issue of sustainability once again the
Government consults and the does the precise opposite of what most suggest. It cannot,
with great respect, be anything other than a complete travesty to imply that the
consultation responses were in the main anything other than a collective loud clarion call to
the Government to change direction!
Chapter 3.
Procurement of Criminal Legal Aid Services
Introduction
3.1
We support the ambition to support ‘cost effective and modern business models,
reducing back office costs in order to provide quality services for users at a lower cost to the
taxpayer’. Our main issue is the lack of an integrated holistic approach to the CJS and the
failure to take seriously the savings and alternate income streams we have identified many
of which have been dismissed without or very little basis for such dismissal. We have
identified a few elsewhere in this response. (See comments to Chapter one at 1.7 above).
P a g e | 16
We are also disturbed by the stubborn refusal to acknowledge the cuts and savings already
achieved. To proceed without recognising the dramatic impact upon the expenditure
already made and to carry on blindly is to do a disservice to Parliament and the public. We
will do our best to ensure that the dangers posed to access to justice by these unnecessary
cuts will be understood.
3.2
We doubt from the available evidence that ‘this will be better for providers and their
clients as well as for the taxpayer’. We are not overreacting but coldly analysing the
proposal in detail (such as provided). Looking at the level of these cuts, even with a forced
consolidation, they will simply cause a structural ‘melt down’ with firms even in a
restructured market finding it impossible to survive and comply with their professional
obligations to clients and the courts.
3.3
The model is wrong for these reasons:
a)
It ignores the inevitability of slow death for own client only firms who presently rely
upon duty work to replenish their client base on a rolling basis. Many own clients were
either originally duty rota clients or indirectly came through recommendation of those who
were duty clients. The average amount of work derived from duty slots is 40% - no firm in
the country can survive a loss of that magnitude. Even firms that derive only 10 % of their
work from Duty schemes (and there is probably no firm with a contract that has less than
that) could survive the life of the next contract with such a diminution; some will try and
limp on but with the continuing decline in the volume of criminal work overall and without
such a source of replenishment as duty work they will die.
b)
The retention of own client work by those desperately clinging on until the inevitable
decline puts them out of business mean that firms that obtain a duty contract will be relying
upon the very slow duty work increase which will be of insufficient volume for them in the
short term to survive these eye watering cuts.
New proposals
Modified Model
3.4
We note the objectives and recognise the need for consolidation if cuts are
introduced but the levels of cuts are so severe that the survival of the defence community is
threatened. We also question the proposed method of consolidation for the reasons set out
in 3.3 (a) and (b) above.
The fixed fee proposals are deeply flawed for reasons we shall expand upon herein.
3.5. We once again express relief that the attack upon client choice has been withdrawn.
We are pleased that the profession and others were listened to on this point.
P a g e | 17
3.6. Again we are very pleased that price is not used as an award criterion for contracts.
Neither do we adopt knee jerk opposition to consolidation. It is simply that HGM is putting
the horse before the cart in not making any effort to achieve savings and accessing alternate
income streams before consideration of consolidating the market. This is important as doing
this first will determine whether and to what extent this consolidation is necessary.
3.7
You say this would ‘retain the same level of choice for clients seeking criminal legal
aid as now.’ We consider the likely drastic reduction of local firms through these cuts and
proposals render client choice largely illusory. What choice is there if the firm you wish to
instruct has disappeared?
3.8. You say ‘individuals would be free to select any provider with an Own Client contract
to represent them.’ We repeat that this depends upon the survival of the chosen own client
firm.
3.9
We note that ‘assessment of the ability of firms to meet these requirements would
form the basis of a process through which the limited number of contracts for this work
would be let.’ but it is impossible to comment on this proposal without further information
about the process. For example we would need to see a clear example of the content of the
Pre-Qualification Questionnaire (PQQ not examples of some questions) as this is crucial. In
any event the increase in volume of just duty cases generated by this reduction of duty firms
would almost certainly not to be sufficiently great enough in the medium term to
compensate for the reduction in rates proposed and in any event the introduction of an
immediate 8.5% cut without prior consolidation would push over the edge most of the firms
you would hope to survive as Duty firms in the second year.
3.10 Our members supply many examples of CJS areas in which the numbers of areas
where geographical constraints make it impractical are considerable. The amendments do
not seem to have allayed concerns. The fees proposed and the geography is incompatible
with survival given the poor reward for greater distances. Some of the examples are
shocking and obvious.
Summary of proposed modified model
3.11 (vii) Client Choice. We note this. We have dealt with most of these points elsewhere.
We comment briefly on one aspect. ‘Clients would be able to choose between a provider
they know and/or already have a relationship’. Some clients will wish to change from the
duty solicitor representing them in the police station and instruct their own solicitor in
court. Will this still be permitted as it is an essential feature of client choice?
Contract Award / Implementation
P a g e | 18
We consider 2014 for tendering and 2015 for commencement to be an optimistic time table
for such a complex process. Historically the past attempt to rush major changed through
have all come to grief. (BVT, Interpreters etc.).
(i) Scope of the new contract
3.12 – 3.17. We note the scope. Our comments upon the effect on duty wok being
removed from own client firms apply as much to court duty work as they do to police
stations.
The Defence Solicitor Call Centre and Criminal Defence Direct service are unnecessary and a
waste of public money. It is scandalous that they survive these proposals despite the
detailed responses on this subject which would save millions which were ignored. Little
MOJ empires are hard to remove it seems. Defence lawyers go but they stay.
Contract length
3.18 Extending the contract term by up to one further year (and subject to rights of early
termination) is welcome but why do we have to go through this renewal process at all such
frequent intervals. It creates financial uncertainty and is not well regarded by our Banks.
3.19 A no fault termination clause any new criminal legal aid contract for Duty Provider
Work is a deeply worrying aspect bordering upon abuse of power. To expect firms to comply
with all the usual onerous terms but to allow the MOJ the right to shut the firms down
without cause is horrendously unfair.
(iii) Geographical areas for the procurement and delivery of criminal legal aid services
3.20 We concentrate here mainly on distance. We will not deal with all the local issues
here but given the distances, removal of disbursements and drastic reduction in the fixed
fee (PSFF) we have been overwhelmed by examples as to why the firms who survive the cull
will rapidly find these proposals financially disastrous. We show below some unedited
responses.
Examples of a few responses
1.
I have just read the Crimeline updater. I just picked myself up off the floor laughing.
£192.54 for police stations and £310.45 inc vat and disbursements for mags work. I dare
anyone try and make a living out of that! Including vat? No one can sustain that level.
2.
Also it includes disbursement. So if I am in Witham and I travel to Clacton 68 miles
round trip I need to pay that. Also how is that competitive when I am competing with firms
who have offices nearer?
P a g e | 19
3.
They say that there will be a minimum of 4 contracts per commissioning area. This
whole scheme of tendering duty work is ill-thought out and, in my view, unworkable,
especially as it would require firms bidding for duty work to be able to cover a huge
geographical area potentially.
4.
It strikes me as a lash-up designed to bring in even worse cuts than originally
proposed. Even now they are moving the goalposts with the recent announcements that the
PS and MC figures include VAT and then reducing them further as the figures in the
consultation included elements that should not have been rolled up in the figure.
5.
And of course if you do reduce down below 4 how do you manage conflict when say 6
defendants form out of area all ask for Duty in a conspiracy, there has to be an irreducible
minimum to take account of such factors.
6.
I cannot see how, in a county like Wiltshire, there could be any less than 4 firms,
given that we have 3 Court/PS centres to cover and be able to cope with conflicts. Added to
that, the travelling distances involved will make it hugely difficult for a firm based only in the
north or the south of the county to provide proper cover.
7.
The consultation states that no area will require travel between its furthest points of
more than 90 minutes. I'm sure there are other areas which don't add up, but looking at my
patch (Devon), the time required to get to Barnstaple in North Devon (police station,
Magistrates and Crown Court) and Plymouth (and Torquay), is, according to Google maps,
Apple maps, AA route planner and the motor patrol police well in excess of the 90 minute
promise. And thats on a good day (i.e. light traffic, dry and no tractors, buses, lorries or the
bane of the South West - caravans !).
8.
We could be called to one of 3 custody centres the furthest being about 50 miles
away - in good traffic it takes about 45- 50 mins; in heavy traffic , particularly in summer it
can take 13 30 mins. further, we may be called to a VA (we get quite a lot of duty calls for
VAs) and it could be as far as Penzance; thats 60 miles from us; in good raffic it would take
about 1hr 23 mins ; in bad ( again , particularly in summer) anything up to 2hrs or even
more.
9.
My office is in Machynlleth, Powys. I am on the scheme for Ceredigion (Aberystwyth
and Cardigan) and Meirionydd/South Gwynedd (Dolgellau). We are VERY rural.
Under the proposals Ceredigion would form part of 'Dyfed 2', along with Brecon,
Carmarthen, and rather cryptically 'Mid Wales'.
Dolgellau forms part of 'North Wales 2' along with Bangor, Pwllheli, and North Anglesey (I
know not what will/has become of South Anglesey!).
AA routefinder says:
Machynlleth/Brecon: 78.6 miles, 1hr:49mins
P a g e | 20
Machynlleth/Carmarthen: 68.3 miles, 1hr:51mins
Machynlleth/Pwllheli: 54.1 miles, 1hr:22mins
Machynlleth/Bangor: 67.9 miles, 1hr:36mins
Machynlleth/Holyhead (presumably North Anglesey): 87.4miles, 2hrs:1mins
These are one-way journeys on rural Welsh roads with not a motorway (or quite often a
street light)in sight. Personally, I think that these are hideously optimistic in reality.
Our LAA account manager has told me that she has made the point about the geography of
rural Wales, asking me to please make the point in my consultation response - even if that is
the only response I provide.
It is nonsense. I can only assume that they do not want me to do the work.
We could simply produce scores of similar proposals but that is a taste of the reaction not
politely filtered or edited.
Exclusivity
3.25 - 3.6 Noted
(iv) Number of contracts
3.27 - This paragraph is confusing in its reference to ‘optimum number of contracts in each
procurement area’. What does optimum mean in this context? To survive? To provide a full
service to clients? To achieve the Governments ambition to cut or all three?
3.28 Is it not dangerous to apply a national average when local conditions are so
dissimilar? In some areas the ratio of duty to own client is very different from the national
average. Imposing a national limit on contracts could backfire horribly.
3.29 You refer to growing the amount of Own Client Work but as we have said elsewhere
that will not happen as own client only firms will eventually die.
3.30
Noted.
3.31 We are concerned that there will not be a sufficient supply to deal with potential
conflicts of interest. What happens if there are more than 4 defendants or more than one or
two firms feel they cannot act for professional reasons for particular a client or clients?
You say your view ‘remains it would be reasonable to expect providers to absorb up to a 3%
change in revenue, in any one year, relative to what they would have received on the same
mix of cases.’ It depends upon the base line figure because the cuts are so large that a 3%
reduction in anyone year could be the difference between survival and disaster. We
P a g e | 21
understand the need for a broad brush statistical approach but we say you are starting from
such a low point that this superficially minor variation will lead to collapse so tight are the
margins.
Market agility –
We acknowledge the recognition of the points we and others made about the absurd fact
that under the original proposals, some firms would have had to scale their businesses
down. Of course retention of client choice and the preservation of own client work is
welcomed.
Sustainable procurement –
Although there is some scope for obtaining more work as a result of competition through
natural market forces these forces would be substantially offset by the loss of the duty work
which keeps even the best own client firms ‘ticking over’. It is next to impossible for those
providers to build enough scale in order to compete in a future round of procurement. Once
the duty work has gone these firms are ‘Zombie firms’ i.e. the living dead. None of them we
doubt will have survived to bid.
You say ‘We think the best way to do that would be to ensure that Duty Provider Work is
sustainable on its own.’ We have to say under these proposal they cannot be sustainable on
their own. They are subject to inadequate fees, there are too few firms covering too large
an area, they have still to compete with own client firms desperately clinging to the
wreckage and they will not survive in great numbers the pre-emptive 8.5% strike (cut)
imposed before the consolidation which is entirely self-defeating.
3.33 to 3.34. We are aware of the proposed research but this is a difficult sell to the
profession as it seems that many feel that cooperation is contributing to their own
professional assisted euthanasia. ‘Let me show you why I should be killed’!
3.35. The analysis set out in a report by Otterburn and Ling did not suggest that a 17. %
cut was desirable or in the interest of the community. It was constrained by the parameters
placed upon it. A 17.5% reduction is simply too savage a reduction. Just because this figure
has been plucked from somewhere does not make it any more acceptable through
repetition or refusal to acknowledge that it is too high a figure.
Public Defender Service (PDS)
3.36 We agree that the PDS is a useful; benchmark. It is through study of the PDS that we
are able to demonstrate that we are 3 times more cost effective.
It is remarkable that they are still able to hold a proportion of the market share that we are
being forced to compete for in the contracting process envisaged. Hardly a level playing
field!
P a g e | 22
(v) Types of provider
3.37 – 3.40 Noted
3.41 – 3.45 Noted
(vii) Client choice
3.46
We repeat our deep relief that client choice is retained.
We are concerned by this however: - ‘We would expect that any withdrawals or transfers
prior to the grant of a representation order would only take place having considered the
same criteria.’ (As post Representation Order). We do not think it right for people to have
any impediment to change from the duty solicitor who represented them as sometimes this
happens because their own solicitor is not available for the police station and they want
their own solicitor in the court proceedings. This has nothing to do with dissatisfaction but is
simply about availability and client choice.
We would seek further clarification as to the meaning of this section ‘The LAA would explore
whether to include any obligations in the new criminal legal aid contract against which
providers would be monitored’.
(viii) Case allocation
3.49 - 3.50
We have nothing to add other than this should not need the expensive
intermediary of the DSCC. Why not allow police stations to call firms directly as once they
were able to do perfectly satisfactorily and at far less cost?
Case allocation outside police station attendance
3.51 ‘As now, there would be no allocation process for this work, the client would simply
contact a provider directly’. With respect this wrong. People interviewed under caution
must be offered free legal advice and this has to go through the DSCC.
(ix) Remuneration
Phased fee reduction
3.52
We note this gloomy fact.
3.53 The 8.75% fee reduction (although preferable to an instant 17.5% cut) in early 2014
without any compensating increase in volume is a very disturbing plan given the present
parlous state of firm finances.
3.54
We repeat our comments to Para 3.53.
Fixed fees
P a g e | 23
3.56 We agree with notion that the present fee structure is complex. The issue is do these
proposals change them in an acceptable manner.
a) Police station attendance fixed fee
3.59 – 3.61. We are very concerned by this approach of applying an across the board
national single police station proposed fixed fee (exclusive of travel and subsistence
disbursements, a very low figure of £160.54 - also exclusive of VAT). This reduction although
having the advantage of simplicity has the disadvantage of being financially disastrous in
many areas. There is no escape banding proposed after the first year. Here are some local
examples of how this adjustment in the rate to a national figure interacts with the proposed
cuts:
1.
In London the present fee is £244.07 with a reduction to a notional national average
and then applying a 17.5% cut leaves London not with a 17.5% cut but with a 34.4%
reduction.
2.
In Kent the current average is £233.13 (with no escape) and when applying both the
reduction to an average plus the 17.5% cut actually means in real terms a cut of 31%.
3.
In Surrey the figure is a reduction in real terms of 29% (no escape.)
4.
For Heathrow, the reduction is 46.7%, For Stansted reduction is 43.0%. The type of
drug importation and terrorism offence is time demanding and yet suffer this collapse.
There is no point in saying ‘well it is swings and roundabouts’ as it is of no consolation or
help if you are making a thumping loss in your area that someone else in another area might
not be making such a huge loss. That is why in the past we have had variable rates from a
geographical viewpoint to avoid the local collapse of firms where overheads or geography
demanded targeting and specificity.
The abolition of the escape fee on top of the massive cut may well lead to standards of
service falling or even refusal to attend for certain cases. It is not uncommon for serious
cases to involve ten hours plus of police station attendance over several days (and nights).
With firms typically paying their staff half of the hourly rate for out of office hour’s
attendance we can understand the reluctance of anyone going to the police station on
Christmas day or a Bank Holiday on a murder for about £8.00 per hour! How on earth are
we expected to cope with these figures?
Even worse although an escape is retained in the first year, under the proposed new
contract there will be one national fee for police stations and this will have no escape fee.
So in a very long case involving days of interrogations or many returns one could literally be
P a g e | 24
working for pennies. The temptation is to avoid the serious cases and deal with the quick
simple ones. What sort of quality service will be expected to be provided for such a
pittance? This is the Americanisation of criminal representation where the poor or middle
income earners are offered a sub-standard service compared to the wealthy. We are
genuinely not intending to be offensive when we ask how many politicians will use the Duty
solicitor.
b) Representation in the magistrates’ court fixed fee
3.62
We note the merging of the lower and higher standard fee.
3.63 - 3.65.
a)
The actual VAT exclusive national magistrate’s court fee will now be £258.71 for all
cases.
b)
The escape fees are £355.51 for guilty pleas but for trials £587.40. Thus you can
carry out over £328 work beyond the fixed fee for a trial and still only receive the fixed fee
but for a guilty plea you only have to do and extra £96.80 of work to reach the escape
threshold. This is therefore again a deliberate attempt to penalise firms for running not
guilty cases, even or perhaps especially where the defendant is indeed innocent!
How can anyone survive on these figures when simply doing a proper level of work that the
file requires to comply with regulatory obligations leaves you making such substantial loss?
Firms were paid more in the 1970’s on a per case basis and those figures were considered
low.13
b)
The flat single fee paid irrespective as to whether a client is guilty or not guilty
combined with an exceptionally high threshold figure is a blatant attempt to place financial
pressure on financially hard pressed solicitors to manipulate clients into pleading guilty. It is
shameful. It places cost cutting before Justice.
c) Crown Court litigation fixed fee (cases with less than 500 pages of prosecution evidence)
3.66 We note the proposal for five fixed fee for each of the eleven offence types which
although still based upon a page count is nevertheless a simplification into bands and we
welcome this as it reflects the way the CPS advocacy fees are paid which is more
straightforward.
13
Mr Greg Powell from the LCCSA told a recent meeting that he billed £470 in an affray case and that under
the new proposals he would receive some £258. But he stunned the audience when he revealed that the bill
had been submitted 35 years ago.
P a g e | 25
3.67 We do not understand why firms should be punished for following clients’
instructions who wish to elect but change their minds on plea at the Crown Court. That is a
matter for to be resolved by way of an order for costs.
3.68 – 3.71 noted.
Disbursements
3.73 We assume as you recognise the ‘importance of separate disbursement payments being remunerated separately’ applies across the board including to police station work.
Perhaps you will confirm this?
(x) Procurement Process
3.74 – 3.98
1.
We will not respond in detail here and we have to reflect the views of the vast
majority of our members who oppose the 2 tier proposal. That does NOT mean we prefer
the PCT/No Client choice proposals in the first consultation as we feel they were doomed to
fail from the outset. That does NOT mean we are opposed to radical reform. Far from it as
we propose radical reform. We simply ‘would not start from here’ (with these proposals).
2.
We point out that all the specialist practitioner groups who speak solely for criminal
lawyers are opposed to this plan at present.
3.
We feel (and we are not alone in this politically before the idea is dismissed out of
hand ) that there is a strong case for an independent and fast track review before
proceeding down the consolidation route to take into account all the cuts and savings
already achieved, proposals for further savings and alternate income streams identified. We
mean no disrespect to the hard working people who have put together the analysis of the
responses by the profession (a great improvement on previous efforts if we may say so) but
we are deeply disturbed by the way these many sound ideas put forward by professionals
working in the system have been dismissed by civil servants with limited experience of the
CJS. We wish to take our case to a body less invested in defaulting to cuts in legal aid
lawyer’s incomes as a ‘simple solution’ and more committed to holistic structural reform to
achieve savings in a manner not threatening to access to justice.
4.
If at the end of this process it is found necessary to consolidate we will accept that
and help achieve this in a sensible and less brutal manner bearing in mind what all
politicians say about the importance of small and medium sized businesses. We do for
example have detailed proposals for the restricting of police station duty schemes that will
enhance the quality firms’ position at the expense of those failing to reach such quality
standards. A rational reduction process should and only be followed if the need is proven by
independent inquiry.
P a g e | 26
Reforming Criminal Advocacy Fees
Introduction
Under Option one:
1. The ‘harmonisation’ (merging actually) of Basic Fees for cracked trials and guilty pleas
with Cracked trial – to be set at a lower level than current level and Guilty pleas – to be set
at higher level than current level is designed to put pressure upon advocates to encourage
‘early consideration’ of the question of plea and therefore is in effect an attempt to
undermine the presumption of innocence. It seems to us fundamentally wrong to distort a
process designed to find the truth or effect justice with these financial considerations.
Lawyers should be free to advise untainted by the inevitable perception that their advice is
influenced by the fee structure so blatantly skewed in favour of a guilty plea.
2. The reduction in the Daily advocates fee (DAF) by 20%, although better than the
previously proposed 35%, and a taper in DAF rates from day three of the trial so that the fee
payable for each additional day of trial would gradually decrease, seems to us to insult the
profession (and the judiciary monitoring trials) by implying deliberate delay. Why would an
advocate’s discharge of his duty be of less value as the trial progresses? Do not the judiciary
control the pace of the trial as part of their remit and duty? Are the prosecution not
involved in the process? Why are only defence lawyers penalised?
3.
This puts lawyers at the financial mercy of capricious clients such as the clients who
will not follow advice. For example when the client is in custody insists on pleading not
guilty until the day of trial then loses his nerve or he realises he has in effect completed his
sentence on remand. Why should Lawyers be penalised for the erratic behaviour of clients
whom we can advise but ultimately whose instructions we are obliged to follow? This
punishes practitioners for decisions that are not theirs but their clients.
Also a case may crack due to the prosecution offering a lesser charge or presenting some
piece of crucial evidence after the plea has been entered which clearly affects the advice
that should be given. In these cases it is the defence practitioner being punished for the
failings of the prosecution, not an unknown phenomenon even now but still unfair and
biased against the defence when there is no reciprocal sanction against the prosecution.
4.
We understand the need to save money but it is a fundamentally bad concept to
place lawyers in an apparent and perceived conflict involving their own financial selfinterest and the interest of the justice and the client. Mealy mouthed and pompous
platitudes about the integrity of the profession although fundamentally true in the sense
that we have the most honourable and independent profession in the world should not
blind one to the dangers of this reputation being steadily eroded in this manner.
Advocacy Option 2:
1. This we note is based on the Bar Council’s proposed alternative reflecting fee scheme
currently used by the CPS but with a reduction in the rates.IT is designed to capture 95% of
cases and is payable for all cases where the page count falls below a particular threshold
P a g e | 27
(varied for different offence types), and is the same for all cases regardless of page count.
The enhanced fee is designed to capture top 5% of cases in a particular offence type in
terms of PPE payable for all ‘evidence heavy’ cases where page count falls above the
threshold and is the same for all cases regardless of page count.
2. However we acknowledge with the biggest reduction in fees being for guilty pleas in this
option and this is preferable but the cuts remain severe nevertheless as can be seen below.
GUILTY
CRACK
TRIAL
OPTION 1
+23%
-18%
-11%
OPTION 2
-11%
-2%
-8%
Conclusion
We are impressed by the fact that the Government listened to the CLSA and others on client
choice and PCT. It takes courage in politics to change course in that way. We genuinely
respect individuals or an organisation that listens and adapts accordingly. We feel however
that our present fears must be taken seriously as we believe with absolute conviction, based
upon the real worry and distress we hear from most of our members, that should these
provisions be introduced in their present form and severity that Ministers will be faced with
a fairly rapid collapse of the whole profession who are involved in criminal practice with
consequential massive harm done to the CJS and a terrible political price to pay and media
‘fall out’ for those responsible.
This is not a negotiating ploy or tactic. We are not being hysterical or over dramatic. Most of
us have already had to cut to the bone due to previous legal aid cuts and the failure of
others to prosecute crime. We have ‘crunched the numbers’ and they do not add up. We
have never known such depression and dismay across the profession. We have never before
encountered such absolute certainty in the belief that these cuts spell the end of the road
financially for almost everyone, as the individual rates per case, combined with the overall
cuts in reality can operate at 30/43% (in some duty cases) below what we are paid
presently. Few of us could possibly sustain that level of cuts as we are barely clinging to
survival now. The increase in volume would not be enough to compensate even those few
survivors as they would not enable the work to be reasonably and economically be
undertaken especially given the huge area firms would have to cover.
Apart from the cost of trying to salvage a disaster with firms collapsing left right and centre
there is the certainty that suppression of fees to this level will inevitably lead to miscarriages
of justice, as a result prison numbers will increase and therefore any savings from the legal
aid budget are likely to increase the prison budget. Plus these cuts will lead to more
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expenditure on appeals and a consequential loss of faith in the system. The blanket
payment of the same fee irrespective of guilt or innocence, ignoring the differential effort in
work levels required, will make potentially any defendant who has not felt he or she has had
a fair trial a much more difficult and potentially disruptive person to manage. Even if not
sent to prison the probation budget is also likely to rise due to incipient resentment of the
client who perceives the system has not provided a fair trial through sub-standard or selfinterested legal representation.
We have a large number of very skilled solicitor Higher Court Advocates among our
membership. However the substantial reduction of solicitor’s firms will inevitably impact
severely upon the future of the bar. We have now a good variety of Counsels chambers that
benefit from the support of a whole range of solicitors firms. Inevitably a substantial
reduction in firms will lead to a reduction in chambers providing Counsel for criminal
matters (they are already under pressure14). A small number of firms will have a
disproportionate economic influence upon a diminishing number of chambers. This will not
be a healthy development for justice. It will lead to a diminution in independence and in
number of Counsel providing the current excellent service that they presently do offer. This
will lead to Counsel who prosecute failing to have vital understanding of defence work thus
making them poorer prosecutors in terms of quality. This in turn will lead to a lack of quality
and experience in the Judiciary when dealing with criminal cases. We at the CLSA wish to
make it clear. We believe these proposals are as disastrous for Counsel as they are for
solicitors. As never before both branches of the profession stand shoulder to shoulder in
opposition to these cuts. We will not allow the Government to divide us.
This is such a critical moment or juncture that we call for a fast track inquiry to hear the
evidence and investigate independently the alternative proposals put forward by all the
professional organisations. The fact that these so frequently overlap suggests that perhaps
the collective knowledge of the profession may be helpful in pointing you towards reforms
savings and alternate income generating proposals that will make the cuts unnecessary or at
least far less severe.
We do not want to be constantly battling with Government over legal aid but it is deeply
disturbing that such profound changes are being made at the stroke of a Ministerial pen
which are upsetting the constitutional balance in removing the citizen’s ability to stand up
to the power of a State funded prosecution without a vote in parliament or a proper inquiry.
Let us help you find the answers to a more efficient and cost effective criminal justice
system through the medium of a fast track evidenced based inquiry. We will abide by the
findings of a properly constituted inquiry in which we have faith and you should be
consulting with us informally without delay on the process. We are as anxious as
Government to resolve this uncertainty as quickly as possible. It could report within a few
months.
END
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