Examination of Witnesses (Questions 180-185)
29 JUNE 2004
STEPHEN IRWIN
QC AND ANDREW
HALL QC
Q180 Mr Clappison: I do not want to lose
this point about this top half dozen or top ten cases. What are
they? Are they serious fraud prosecutions or customs prosecutions?
Are they confined to those cases?
Mr Hall: They tend to be either
fraud or customs. They are multi-handed and they are frequently
conspiracies involving a number of defendants. The reason we know
about them now whereas we did not have the hard evidence before
is that the Legal Services Commission has now completed, as one
might imagine, a number of contracts and the data is available.
The Bar's economist, amongst its other people, has analysed the
data and what has struck him with enormous force, and I think
also it has had resonance in the Legal Services Commission, is
how few cases we are talking about and how the unit cost increase
that worries everyone is focused on as few as half a dozen to
10 cases a year, completely distorting the picture.
Q181 Mr Clappison: If you have done your
own analysis of that, that would be quite valuable for us to have,
apart from the Legal Services Commission analysis.
Mr Irwin: I think our statistician
is a bit concerned as to the extent of the detail base he has
got so far, so we may give it to you, but then renew it as he
gets more figures.
Q182 Mr Soley: Although we have had an
interesting diversion, on the question of QCs' fees, how much
does the Department accept your argument that it is all stereotyped
and seriously exaggerated?
Mr Irwin: Well, I went to see
Mr Boateng, so never mind the Department, I went to the Chief
Secretary and he said that he was not going to take the stereotype
and he accepted that there was a stereotype and that was not his
business. What the Department accept privately may be very different
from what they accept to me publicly across a table, so I am not
sure I can help you terribly much. They still go on about fees,
but the energy and enjoyment with which they used to mount this
charge is diminishing.
Q183 Ross Cranston: Could I move on to
a different subject and ask you how you would respond if you were
expected to be partially responsible for the collection of contributions.
Is that a runner or not?
Mr Hall: No, it would be a complete
disaster for the reasons I have spelt out in the note. I do not
know whether I need to expand on those. It is really a question
for the barrister of having absolutely no control, no mechanism
by which contributions can be enforced by the advocate and probably
no knowledge of what has gone before and a code of practice prohibiting
in any event a barrister handling clients' money, so you can have
no effect on it. The notion that a barrister who is paid £70
for doing a plea of mitigation should discover two or three weeks
later that that is going to be taken away because the client did
not pay their contributions is, we think, unreasonable and grossly
unfair.
Ross Cranston: So it is a complete non-runner?
Mr Hall: I think it is a complete
non-runner.
Mr Irwin: There is another reason
which is that the whole point of having a barrister coming in
very often, particularly in the criminal context, is to persuade
the clients that they are getting an independent voice, advising
about plea, advising about how the case is going. If you then
land that person in a one-stage wrangle about whether the defendant
has made the contributions he should, you rob the whole relationship
of its authority and of its independence; you completely destroy
that relationship.
Q184 Mr Soley: If the LSC were to bear
the risk, what incentive would there be for solicitors or barristers
to encourage clients to pay contributions if they covered the
risk of non-collection?
Mr Irwin: Well, the barrister
cannot encourage the client to pay the contribution. As we have
just said, there is no opportunity for us to exercise that control.
Presumably the LSC would be able to monitor the patterns of collection
in the hands of a given firm of solicitors. You would have to
be careful about that, but subject to being careful about it and
thinking about differences of culture and different places, if
you found that a particular solicitor was a terribly bad collector,
then that would be something which could be raised. You would
not do it on a case-by-case basis, but on a pattern. That is the
only way that you can tie together the solicitor's interest and
the success in collection.
Q185 Mr Soley: Are there any other matters
which you would like to raise or put before us?
Mr Hall: Only this: that we do
want to emphasise that to place that administrative burden upon
hard-pressed criminal solicitor practitioners might prove to be
the straw that broke the camel's back. They are under enormous
pressure, financial, overwhelmed by bureaucracy, and this is another
step in that direction which makes all the practitioners I know
absolutely despair.
Mr Irwin: We are seeing real pressure
on criminal solicitors and it is not a matter of our interest,
but a matter of seeing recruitment now being very difficult, seeing
the provider base really under pressure on the ground with the
solicitors dealing with crime. I think this could be, as Andy
says, the final twist for some of those people giving up in despair.
Mr Soley: Thank you very much indeed.
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