Examination of Witnesses (Questions 100-119)
29 JUNE 2004
RODNEY WARREN,
EVLYNNE GILVARRY,
HELEN COUSINS
AND ROBERT
BROWN
Q100 Peter Bottomley: You are saying
that a small amount of attention to a small number of cases could
do a fair amount in terms of money, but a lot of effort for a
lot of cases where people cannot basically pay is not very sensible.
Mr Brown: Precisely.
Q101 Peter Bottomley: If solicitors do
undertake more private client work, what impact would this have
on the defence costs awarded to defendants from Central Funds?
Mr Warren: I think, in the end,
not a great deal, because that pre-supposes that the defendants
in the first place will be in a position to fund the costs themselves,
as a requirement of the existing regime that the defendant should
have a contractual arrangement with the solicitor to pay the solicitor's
bill before an application can be entertained by the court. So
it is unlikely, for the reasons we have already heard in answer
to your earlier question, that there is going to be any substantial
increase at all. That is an entirely personal view based upon
experience of current rules.
Q102 Peter Bottomley: How willing will
solicitors be to administer the means test and the interests of
justice test, whether paid or unpaid?
Ms Gilvarry: I think they would
be very unwilling, precisely for the reason I mentioned earlier,
that they are right now bogged down by bureaucracy and this would
be additional bureaucracy. But there is another point also that
is worth making and that is there is the potential for a serious
conflict of interest where a solicitor administers the merits
tests in the interests of justice and then decides that that is
an opportunity to go on and represent that client privately. It
is a very unattractive conflict of interest. For all those reasons
I think you will find a great deal of reluctance by solicitors.
Ms Cousins: I think it has to
be accepted that it cannot be assumed that solicitors will be
willing to administer this test.
Q103 Peter Bottomley: What problems do
you think solicitors would have in collecting evidence of means
from their clients?
Mr Warren: I think there are two
consequences to that. They would have a great deal of difficult
because our clients are reluctant participants in the criminal
justice system anyway and they are even more reluctant to make
any particular effort on their own behalf towards things which
they regard as ancillary in the process of dealing with that offence.
They have no great encouragement just to start with to produce
the documentation, which would mean inevitably that solicitors
would have to chase extensively or would be expected to. So, understanding
our client base, we recognise that it is likely we will have problems.
But I think the greatest difficulty of all that we see from that,
is that whilst we are doing the chasing we cannot be doing the
work on behalf of the client, and the highest likelihood then
is that we would have to ask the court for an adjournment, which
causes delay in the process, while we look for their paperwork.
Q104 Peter Bottomley: If a solicitor
is given information by a client and the solicitor believes that
some of his money was obtained unlawfully, does the solicitor
then in these circumstances have a responsibility to notify this
to the tax people?
Ms Cousins: No. Proceeds of Crime
makes a specific exception for reasonable remuneration—I
think up to £15,000—that is going towards your costs.
This is designed to go directly towards your costs, and so, if
it was under that figure, I do not think there would be a responsibility
to report it.
Q105 Chairman: When you collect the proceeds
of crime, you do not report it.
Ms Cousins: I think so.
Q106 Peter Bottomley: I was not so much
thinking of using the money for solicitors to be paid. We keep
hearing of all professions being caught by the requirements to
do with money laundering to notify any doubt on almost any sum
of money. I was wondering whether you understand that that provision
affects and covers this investigation of the means of a potential
client.
Mr Warren: My understanding is
that that would not apply in the case of criminal defence work,
for the reasons that my colleague has mentioned. Of course one
of the suggestions within the paper is that if the defendant was
acquitted it would be a requirement for the contributions to be
repaid. That actually under the current legislation I think is
probably unlawful.
Q107 Chairman: Under model 2 solicitors
do not have to collect money regardless of the circumstances.
That of course is a rather crude model, is it not, because it
does not take much account of the defendant's circumstances or
the possibility of the defendant making a modest contribution.
Do you think it is preferable to the other models?
Ms Cousins: It has bigger access
to justice problems because £25,000 as a gross income for
a family is very low indeed. It takes no account of how many people
are being supported by that £25,000 or how hard the people
are working to make that £25,000 and simply to have a cut
off at a level such as that is going to mean that quite a significant
number of people, particularly in richer areas of the country
are going to fall outside being helped.
Q108 Chairman: The Government obviously
think that model 2 is likely to have less impact and cause fewer
delays, even though there are alternative suggestions, but you
are chasing money before you start.
Ms Cousins: I am sure that is
right, it will cause fewer delays, but in an area such as London,
where average earnings are considerably higher than they are where
I come from, there will be huge numbers of people who simply fall
just outside it, who will therefore not be eligible, and access
to justice and so forth then develops.
Mr Brown: If this figure was fixed
at that level and there was no mechanism for it to be increased
to keep in line with earnings, then we would very quickly find
a situation where the number of people that qualified for legal
aid would diminish significantly in a short period of time, because
of course earnings do rise in certain areas.
Q109 Mr Clappison: Could I take you up
on the point you have just enlarged upon about the number of people
who would not be eligible because of the figure of £25,000
and the fact that this is a relatively low figure in some parts
of the country. My constituency is in Hertfordshire, which in
many ways is more expensive than London. £25,000 is a joint
family income. It is hardly a prince's ransom. My suspicion is
there will be relatively few families with an income below that
sort of figure in my constituency. Do you have any more concrete
figures on that?
Ms Cousins: I do not. The Society
might have.
Q110 Mr Clappison: Your feeling would
be that there would be a lot of people who would be excluded.
Ms Cousins: Yes.
Q111 Mr Clappison: Particularly in affluent
parts of the country.
Ms Cousins: Yes. And I think it
is research that could be relatively easily be undertaken. But
instead of proceeding with something that could cause enormous
problems, perhaps that research ought to be undertaken first to
find out how many people would be very adversely affected by it
and whether that has any ethnicity difficulties because certain
areas of course have different ratios of different types of people.
Q112 Ross Cranston: I would like to move
on to the merits test rather than the means test. As I understand
it, the Commission are suggesting that the less serious cases
that would be done by the Commission. You would send the request
through and then the Legal Services Commission would turn it around
within 24 hours or something. What sort of problems do you see
associated with that?
Ms Cousins: I do not think that
is what is proposed.
Q113 Ross Cranston: I thought you as
solicitors were only going to be doing the more serious cases.
Ms Cousins: I think not. I stand
to be corrected but my understanding was that the indictable only
matters would be an automatic grant, and then there are only the
questions about means testing, but the either-way matters would
be the ones we would have to deal with—and the summary-only
matters.
Ross Cranston: I see. I have misunderstood
the proposal—which possibly is not surprising, but I plead
guilty.
Q114 Chairman: Let's clarify in what
circumstances the solicitor makes the decision. This time we are
confused.
Mr Warren: We have a concern about
the transfer of the duty from the court to the solicitor for this
reason: at the moment the solicitor partakes in assessing the
interests of justice test with the client but does soon a subjective
basis. He or she talks to the client about the nature of the case
and what it is about and advises the client about the likelihood
of a representation order being granted. We then of course submit
it to the court and the court has the responsibility of the objective
test to see whether or not it truly passes. It is proposed, of
course, that the objective test should be undertaken by the solicitor's
task would be first to carry out the initial view and then to
apply the test in place of the court.
Q115 Ross Cranston: Where does the Legal
Services Commission come in?
Mr Warren: The Legal Services
Commission is able to look through a list of offences in advance
and say, "These are offences for which we can say that we
believe the interests of justice test is passed, as of right."
The indictable-only offences, for instance, would be easy, but
there would then be a range of offences where it is not so easy,
and some which probably all of us could suggest would not be appropriate
for a representation order.
Q116 Ross Cranston: I know Evlynne mentioned
the conflict of interest point earlier, which of course the Justices'
Clerks' Society has also mentioned, but I guess that operates
both ways, does it not, in that, if you are recommending that
someone has met the merits test, there is a conflict there as
well on the basis you might get the business. It cuts both ways.
Mr Brown: Yes, but you do not
make the decision.
Ms Gilvarry: You do not make the
ultimate decision.
Ms Cousins: I think I am correct.
It says: "It intended that any test administered by the Commission
will be a delegated power to solicitors with a general criminal
contract." So any decision-making on merits testing would
pass to solicitors and then the means test of course falls in
with that.
Mr Brown: At the moment the court
makes the decision and people in some ways tend to respect courts.
It may seem a small point, but solicitors do not want clients
in their offices, banging on the table and threatening the receptionist
because "Your firm has refused me the grant of legal aid."
We do not have the buildings and the facilities to cope with that.
We are also concerned because there is a direct professional conflict
of interest if we make the decision which does not exist if we
are merely filling in an application form for the court to decide.
There is an additional problem—and this goes partly to the
question: Will solicitors continue to do this work if the burden
is imposed upon them? Although the proposals are that the Commission
would delegate the power to grant a representation order to solicitors,
that will be second-guessed because solicitors under the contracting
regime are subject to a very thorough auditing process, so that,
after a number of decisions have been made every year, an auditor
will come in and look at the file. If they find one individual
case file where they think the solicitors have wrongly exercised
their discretion to grant legal aid, not only will they withdraw
money paid to the solicitor for that one case but they can extrapolate
it across the rest of the solicitor's work load done that year.
Q117 Ross Cranston: In other words, the
conflict problem is not addressed as a problem because of the
arrangements.
Mr Brown: Yes. But I wanted to
point out this particular problem—and it does partly go
to the Chairman's question about incentives to solicitors or disincentives
to do the work. This does not just give us a decision and that
is the end of it, it will actually be second-guessed. It will
make solicitors very cautious about granting representation orders
and it will make solicitors disinclined to carry on doing the
work at all because they know they will spend all year worrying
about the view that would be taken by an auditor, appointed by
the Commission, who has never been in a criminal court in his
or her life, almost certainly, and has no experience of practice,
who will come in and second-guess the decision made on grant.
Solicitors then may find they are very heavily penalised financially
(in other words, required to pay back hundreds or tens of thousands
of pounds) because an auditor has made a decision that criticises
their decision to grant. It is much better if it is with an independent
body, such as the court.
Q118 Chairman: Would you rather have
the Legal Services Commission? At least your receptionist can
then say, "No, it is not Mr So-and-so, we have had to fax
it to the Legal Services Commission and they will give us the
answer."
Mr Brown: I agree entirely. That
would be an advantage over us having to decide for that particular
reason. It does not deal with some of the other problems that
we anticipate.
Q119 Ross Cranston: I do not know whether
it is worth clarifying that John Ludlow has been running around
and I have put to you the Legal Services Commission proposal.
I do not know whether you have seen that or not but maybe you
need to think about that and come back to us. They are proposing
on the less serious matters you as solicitors would be sending
material through and they would be turning it around within 24
hours.
Ms Cousins: I can help. The Legal
Services Commission to this Committee I understand is to say,
"We plan to devolve the grant of legal aid to solicitors
in all indictable-only cases and the more serious either-way cases.
This will allow them to start representing their clients as soon
as they have undertaken a means test."
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