Evidence submitted by the Justices' Clerks'
Society
The Justices' Clerks' Society is pleased to
submit a response to the Constitutional Affairs Committee inquiry
into legal aid.
What evidence is there of the emergence of "advice
deserts"?
The Society has no evidence of the existence
of "advice deserts" in the sense of an absence of local
legal practitioners. There are categories of cases, however, where
legal representations is not available. For example, in situations
of minor offences (eg Road Traffic) where a full representation
order has been refused prior to the first hearing on the interests
of justice grounds, the duty solicitor is precluded from acting
on the day, even if they would otherwise have come within the
scheme, for example by pleading guilty. If no application had
been made, the duty solicitor might have been able to act.
Another "advice desert" is in the
area of private prosecutions, for example if an individual wishes
to prosecute a neighbour for excessive noise or a public body
for failing in one of their duties. Legal aid is not available
for individual prosecutions, only defences. Such cases are very
rare however.
Dealing with increasingly common cases, legal
aid is not available for confiscation of money where this is thought
to be the proceeds of crime or drug trafficking under the Proceeds
of Crime Act 2002. These are deemed civil proceedings and are
dealt with by the Legal Services Commission.
Many solicitors however claim that it is hard
to recruit solicitors with experience as legal aid rates are so
low. A number of firms therefore employ newly qualified solicitors
clearly lacking experience and they tend to leave and move on
to the CPS or other firms quickly. Another difficulty which has
been highlighted is the fact that more and more criminal work
appears to be concentrated in a few main solicitor firms causing
difficulty when sharing work between courtrooms. If one solicitor
had the bulk of the business, for example, in a remand court,
this causes difficulties as he cannot see them all at once and
the bench often has to retire so that instructions can be given.
The Society has noted a trend for criminal work
to be done by a decreasing group of sole practitioners and small
specialist firms when once all High Street firms had a criminal
department. Generalist practices no longer find it profitable.
There is little or no new blood coming into criminal work. Where
once this was the area in which many new solicitors cut their
teeth now it is the province of the same old hands.
Whilst the Society has no statistical evidence,
perceptions are that there are increasing numbers of unrepresented
defendants some of whom maintain hopeless not guilty pleas when
a good advocate would have made it plain that there was no defence.
There is no incentive for lawyers to go into
criminal work as it is poorly paid and entails working unsociable
hours. This inquiry is therefore timely and to be welcomed.
Another major concern of legal aid practitioners
is the burgeoning pressure of paperwork. A reduction in the bureaucracy
may help by making the process less time consuming and labour
intensive for lawyers.
How can the Department for Constitutional Affairs
and the Legal Services Commission provide incentives for legal
aid practitioners to continue legally aided work?
The one incentive for practitioners to continue
legally aided work would be to increase the fees; these are regarded
as too low. One need only look at the rate of payment of defence
costs under central funds, which are higher than legal aid rates.
The whole area of criminal and family work is
perceived as lowly paid both within and outside the profession
and is not attracting good calibre young practitioners. The whole
profile of this area needs to be raised to make it more attractive.
The situation has worsened since the introduction
of fixed fees and perhaps this whole payment scheme needs to be
revised, particularly for cases that are not straightforward and
can be complex and lengthy. Consideration should also be given
to reducing the bureaucracy involved in claiming under the scheme.
Is the perception that legal practitioners are
moving out of legally aided work correct?
Yes, it would seem that they are, they are leaving
due to the low funding and the bureaucracy. The Law Society would
have figures for the numbers of practitioners involved.
Many firms which used to specialise in criminal
legal aid work, especially the smaller ones, have closed down
and the practitioners transferred to more lucrative areas of work.
Larger firms seem to survive by allowing the legal aid practice
to be subsidised by other departments that earn higher fees.
Can the requirement for legal aid be reduced by
the resolution of some legal issues on a more informal basis,
through the Citizen's Advice Bureau, long distance services or
otherwise?
A Citizens Advice Bureau is not really an appropriate
source of advice in the criminal field where an apparently minor
and straightforward matter may unexpectedly give rise to complex
issues of law and a need for representation. The same can be said
for Helplines and law centres. They are not set up to provide
specialist representation in criminal and civil courts and would
not be able to help in magistrates' proceedings, except at a very
early stage when their advice is most likely to be to see a solicitor.
They could and do help with the completion of forms however, such
as written pleas of guilty and means forms in respect of very
minor traffic cases for which legal aid would be extremely unlikely
anyway.
A case might be made for a CAB helpdesk running
alongside the duty solicitor. Duty solicitors are now more robust
in only accepting cases where defendants are at risk of custody,
complex points of law or where there are major issues of loss
of livelihood or reputation.
Would a salaried service or the provision of law
centres be a viable solution to lack of provision, either in areas
without sufficient practitioners or elsewhere?
This question invoked memories of the creation
of the CPS from contributors, with all the havoc, expense and
delay to courts that caused. A salaried defence service it is
felt would become a bureaucratic monster- with the likely treasury
efforts to keep costs down leading to the appointment of substandard
lawyers. The "agency" would inevitably be performance
driven with targets set and most likely strict budgetary constraints
leading to under staffing. This can be observed currently with
the under funding of the CPS.
If this is to be piloted it must be recognised
that pilots are very well funded in order to achieve the aims
of the pilot. Inevitably this funding is not extended to any roll
out. And this would most likely result in far more delay and expense
than the current fairly efficient system we have now.
The provision of law centres in areas where
there is not ready access to solicitors is felt to be the most
feasible option to this problem, with funding via annual grants
from the DCA and other bodies rather than a service wholly financed
by central government.
A salaried service would likely be unpopular
with the legal profession but arguably, if properly funded, would
improve quality and consistency of advice to defendants. There
are certainly potential benefits for the criminal justice system
as it is difficult for other agencies to engage with defence advocates
when there is no representative body to speak for them.
Unless the current trends in funding and the
associated bureaucracy are reversed then it is inevitable that
the number of firms undertaking this work will decline eventually
to the point there is no proper service to defendants, particularly
when those currently doing this work retire. The alternative is
a salaried service.
Should ministers decide on the latter course,
then salary levels will be important as there is evidence already
of employee migration affecting the Magistrates' Courts Service
and CPS with lawyers going to the highest bidder. It would be
unfortunate if the creation of a salaried service prompted a public
sector bidding war.
What would be the comparative funding costs of
a salaried service?
This is not an area that the Society has much
expertise in and is best answered by those that do.
Regarding the transfer of responsibility for
the grant and refusal of legal aid to the Legal Services Commission,
as an organisation, the magistrates' courts are extraordinarily
efficient in dealing with applications. Turnaround time for decisions
is 48 hours in 80 to 90% of cases and paperwork is processed and
sent out immediately. The service also has an enormous amount
of skill and expertise built up over many years of experience
in this work. Any transfer of this responsibility will, without
doubt, lead to far more expense and delay than at present is encountered
at these courts. Transferring the grant and refusal to the Legal
Services Commission would lead to the loss of ability to link
into the CPS and Probation, for example in revocation cases. Courts
have a vast knowledge of the "coal face" and put this
to good use when dealing with applicants, solicitors and other
agencies. Local practices can lead to efficiencies that will be
lost with any further delay built into the system.
Finally, it is accepted there has been an increase
in Legal Aid grants, however it must be noted this increase matches
the increase in the work of the courts following a number of Government
initiatives.
Sid Brighton
Chief Executive
January 2004
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