Evidence submitted by the Legal Aid Practitioners
Group
1. This is the evidence of the Legal Aid
Practitioners Group to the Constitutional Affairs Committee on
the CDS Bill and consultation paper.
2. LAPG is an independent membership organisation
representing over 800 firms that undertake legal aid work. Around
half of our members do some criminal work.
SUMMARY OF
MAIN POINTS
3. We believe that there are arguments both
for and against the transfer of the right to grant legal aid from
the Courts to the LSC, thereafter to be delegated by the LSC to
individual firms. If it does happen, it would need to be subject
to safeguards, and there are legitimate concerns about the proposal.
4. In principle, we believe that means testing
should be reintroduced, although there is a question as to whether
the practical problems can be addressed at a reasonable cost.
5. We are wholly opposed to the idea that
solicitors should have to calculate and collect contributions
to costs, and on the figures so far provided, we believe that
contributions are being proposed at far too low a level of income.
Contributions are not of themselves objectionable if set at a
reasonable level and if the collection is carried out by the State.
We would suggest that the cut-off point should be the higher rate
tax band, with a tapering of contributions up to that point.
6. Among the main reasons for the increase
in Criminal Defence Service (CDS) spending are that the number
of suspects arrested and brought before the courts has increased;
that the ratcheting up of sentencing means that more clients meet
the interest of justice test; and that new rules of evidence and
other developments such as anti-social behaviour orders and the
Proceeds of Crime Act have added complexity to existing cases
so that they take longer and are more expensive. A significant
part of the increase is attributable to very high cost cases,
which take up a larger proportion of the total budget every year.
7. The DCA states that it cannot account
for a significant proportion of the increase in the number of
representation orders, and concludes that this must be due to
the abolition of the means test. We believe that much of the increase
is due to a change in procedure whereby for additional offences,
the Courts now issue a new order rather than amending an existing
order. LSC statistics for the numbers of bills submitted suggest
that this might account for almost one third of the total increase
in the number of orders granted. Another half to two thirds of
the increase is accounted for by additional numbers of defendants
prosecuted and the switch from motoring to non-motoring offences;
and the increase in sentencing.
8. The causes of the increases in the CDS
budget are almost exclusively external, not internal. Therefore
attempts to bear down on the increases in the budget by attacks
on the legal aid structure itself do not address the causes, only
the symptoms.
9. There are numerous practical questions
concerning the administration of the test. These could impact
on the speed of grant of legal aid, and cause delays in the system.
INTRODUCTION—LAPG'S
GENERAL VIEW
ON THE
BILL AND
CONSULTATION
10. There are a number of legitimate concerns
about the effect of removing from the Courts the right to grant
legal aid, and in the LSC delegating this power to solicitors.
11. We believe that a coherent philosophical
case can be made out both for and against means testing. On the
one hand, since defendants are innocent until proven guilty, it
could be considered unreasonable to expect anyone accused of a
crime to have to pay to prove their innocence; and we already
have the Recovery of Defence Costs orders regime, under which
those who are convicted in the Crown Court and can afford it are
required to pay some or all of their defence costs. On the other
hand, why should the taxpayer pay for the defence of a millionaire
charged with causing actual bodily harm or some other similarly
minor offence? Some practitioners would ask why they should act
for such a client on legal aid rates when he could afford and
would be willing to pay at their private client rates.
12. We are wholly opposed to the idea that
solicitors should be required to calculate and collect contributions.
Many of these arguments arose four years ago when the Government
proposed introducing a contributions system for civil legal help
cases. After the consultation, the Government agreed that it was
impractical. The same arguments and more apply when considering
criminal clients.
Why has there been such a large increase in spending
on criminal legal aid?
13. Over the past two years, the CDS budget
has increased from £875.7 million in 2000-01 (according to
the 2000-01 LSC Annual Report, page 1) to £1.09 billion in
2002-03 (according to the 2002-03 Annual Report, page 2).
14. We would like to start by highlighting
something that is not a reason for the increase. There has been
no increase in the remuneration rates for solicitors undertaking
this work. Contrary to the view sometimes expressed by the Treasury,
doing more work on more cases and getting paid at the same pro
rata rate for that additional work does not amount to a pay rise.
15. Cases in the Magistrates Court are paid
for in one of two ways: either by a system of standard fees, or,
in those cases that involve significantly more work, by individual
assessment of the bills. Therefore if and to the extent that any
part of the increase is caused by changes in what solicitors are
doing in the Magistrates Court, there are strict controls in place
that prevent any solicitor from charging for work that was not
actually and reasonably done. Any additional work done has been
fully justified.
16. It is therefore not legitimate to blame
solicitors for the increase.
17. According to the DCA Departmental Report
published in May 2004, the number of offences for which offenders
were brought to justice in 2000-01 was 1.02 million. There is
a target to increase this figure to 1.2 million by 2005-06. No
information is given as to how much progress has been made to
date towards this target, but it supports the view, derived from
other information set out below, that there has been a significant
increase in the number of defendants dealt with in the Courts.
There appears to have been no planning for the increase in the
CDS budget that would inevitably be caused by this increase in
the number of offenders being brought to justice.
18. Unfortunately, the LSC's statistics
do not help us as much as they might to understand further what
has been happening over recent years. Because of a change in their
procedures, whereby all the work done on a case is claimed under
the representation order rather than as separate claims, the most
recent figures are not comparable with those that went before.
19. However, there are some statistics we
can provide. First Assist, the Duty Solicitor Call Centre confirmed
in 2003 that the number of duty solicitor calls in 2002 had increased
by 6.9% since the previous year. David Blunkett announced last
year that 29,000 more people had been prosecuted in the Magistrates
Court than in the previous year. And as the DCA's own figures
show, the number of legal aid orders in the Magistrates Court
has increased from 426,165 in 1999-2000 to 638,538 in the 12 months
to December 2003. All of these statistics serve to confirm the
view that one significant reason the budget is increasing is because
solicitors are undertaking many more cases.
20. Another reason cited for the increase
in representation orders (beyond an increase in the number of
defendants) is that sentencing has been becoming harsher in recent
years, and therefore even within a static profile of cases, the
proportion of cases that meets the interests of justice test for
representation will have increased. We have no statistics that
might help identify the extent of the impact of changes in sentencing
on the granting of orders.
21. The DCA's figure for the number of grants
does require further comment. The consultation paper suggests
that the increase could only be partly attributable to the extra
cases in the Magistrates Court and the shift in the statistics
of 60,000 from motoring to non-motoring cases. The consultation
paper states that the vast majority of the increase is "still
unaccounted for". We think we can account for a significant
part of it, and it is not caused by the abolition of the means
test.
22. Until 2001, if a defendant had new charges
brought while previous proceedings were pending, either because
of new offences coming to light or because of a change in the
nature of the charge, the existing legal aid order would be amended.
Since 2001, in these circumstances a new order is issued. This
factor, not considered in the consultation paper, accounts for
a substantial proportion of the increase in the number of orders
issued since 2001. But even where there are multiple orders, there
is usually only one bill.
23. According to the LSC Annual Report in
2001, 467,632 criminal legal aid bills were paid. Although the
figures cited by the DCA in the consultation paper refer to different
periods and are incomplete, this appears to be reasonably in line
with the figures for the number of orders issued. The average
bill was £501.50. According to the 2003 Annual Report, the
number of bills in the 2002-03 financial year was 575,526. With
pre-order work now claimed under the order, the average increased
to £515. Comparing this figure for the number of bills with
the figure for the total number of orders above (638,538 in the
12 months to December 2003) suggests that the change in procedure
may account for as many as 63,000 of the 212,000 additional orders.
24. LAPG has also heard anecdotal evidence
of Courts granting legal aid orders for very minor offences such
as cycling on the pavement or riding without lights. The impression
given is that some Magistrates' Courts are less rigorous in their
application of the merits test now that they do not have to consider
the means test. If and to the extent that this is a genuine problem,
the removal of the power to grant legal aid from the Courts will
resolve it. It does not require the reintroduction of the means
test to address it.
25. It is also noteworthy that very high
cost criminal cases take a larger proportion of the budget every
year. It is now estimated that the most expensive 1% of cases
take around 54% of the Crown Court budget.
26. Taking all of these factors into account,
it is readily apparent that the estimate of between 75,000 and
150,000 additional orders being attributable to the abolition
of the means test is completely wrong. The true figure is an order
of magnitude smaller, and the suggested savings from the reintroduction
of the means test are unattainable.
Do the Government's proposals represent the best
way of controlling rising expenditure on criminal legal aid and
how effective are they likely to be in practice?
27. LAPG would deny that there is any significant
internal inflationary effect on the criminal defence service budget.
We believe that the causes of the increasing costs are the factors
highlighted above. The streams of legislation from the Home Office,
"policy exocets" as they were called by the Matrix Report
into the Community Legal Service, continue to place unsustainable
pressures on the budget. Another example of the problems that
can arise was the closure of wicket gates in cell doors in London
magistrates' courts. On the face of it, this has nothing to do
with legal aid. But the effect was to remove one of the few opportunities
for lawyers to consult with their clients. Lawyers were therefore
required to attend much earlier at Court, and to wait around for
much longer periods of time for cases to be called, because of
the queues for the interview rooms. This therefore has almost
certainly had an impact on the amount of waiting time claimed
by the lawyers appearing in these Courts. As the Legal Services
Commission said in its 2002-03 report, "Other criminal justice
agencies continue to make significant changes to law and procedure,
the impact of which on CDS expenditure is not taken into account
when proposals are developed and costed. [There is a] need for
the Commission to have a more influential role in inter-agency
working to facilitate our control over CDS spend."
28. The DCA's recent Departmental Report
proposes increasing, by 20% by 2005-06, the number of offences
for which the offender is brought to justice. This is self-evidently
a desirable policy goal.
29. The report sets out how additional Court
time will be made available to accommodate these extra cases,
but there is no provision for the additional demand for criminal
legal aid that will be created. Unless the additional offences
for which the offender is brought to justice are either going
to be very minor offences that do not meet the interests of justice
test, there will be a significant impact on the budget. 20% of
the current CDS budget amounts to £200 million.
30. In addition, very high cost criminal
cases also account for a significant part of the increase. The
LSC is attempting to control the costs in these cases, and in
particular the costs that are paid to QCs. The Committee may be
aware that this has recently been the subject of some controversy.
31. Yet still the LSC and the solicitors'
profession find themselves condemned because the CDS budget is
increasing by more than the rate of inflation. Not only have remuneration
rates and standard fees not increased, some of them are now being
cut. This is unsustainable in the medium term. The quality of
services to clients is, according to the Legal Services Commission,
being cut with the proposed introduction of CDS Direct because
of the need to make savings to keep within the current budget.
And every time it proves impossible to constrain the demand for
criminal defence services within the current budget, the Community
Legal Service is cut. No matter what the LSC and DCA may do, it
is no more than tinkering at the edges unless and until the Government
takes proper control of the external drivers. Quality is being
diminished. The level of service to the most vulnerable in society
is being cut. But we are close to the limits below which a civilised
society should not drop. There is precious little more to trim.
The policy of continuing to target the symptoms instead of the
cause will in practice be completely ineffective in trying to
control the budget.
How will the re-introduction of a financial eligibility
test affect access to justice?
32. This depends entirely upon the test.
On the figures proposed in the consultation paper, there would
be many defendants who would be unable to meet the costs of their
case but who would not qualify for legal aid.
33. On the other hand, a means test set
at a higher level could exclude the "genuinely wealthy"
who honestly can afford to pay for their legal services, without
excluding those who cannot. The higher rate tax band might be
an appropriate cut-off point.
How difficult will it be to administer means testing
in criminal cases?
34. There are a number of further issues
here. What is the test? What evidence is required of income, capital
and expenditure? At what point must the test be completed? What
is the effect of a mistake in carrying it out?
35. Criminal defendants often live chaotic
lives. It is not rare for them to suffer from poor education,
drug and alcohol addiction or mental health problems. It is often
difficult enough to get instructions from them as to their defence,
let alone detailed financial information. Given that a high proportion
of defendants are on benefits, there is likely to be an additional
burden on the Department of Work and Pensions in providing the
proof of entitlement, not least because for those clients who
do have bank accounts, payments tend to be direct to the account
now rather than via a payment book. Therefore one of the former
forms of proof of benefits no longer exists.
36. Given also that many such clients will
not have bank accounts, one wonders how they would be expected
to prove that they have no capital, which is usually the case.
37. There are also obvious concerns about
the impact of money laundering regulations on the attempts to
gain such information and administer the test.
38. Given the difficulties there will be
in getting the necessary information, it is likely that there
will be significant delays in being able to resolve the grant
of legal aid, which in turn will inhibit the early preparation
of cases that the DCA is trying to encourage.
39. It is proposed that solicitors should
carry out the means test. Given their experiences with the contract
compliance audit, many solicitors are concerned that if they make
one minor mistake in calculating the test, the LSC may, on audit,
demand back from them a substantial proportion of their entire
income. If this were to happen, the effect would be to bankrupt
firms. This is not a risk that many of them are prepared to accept.
40. There are also problems with the proposal
that solicitors should collect the contributions. When this issue
arose four years ago, we listed a number of arguments against
solicitors being required to carry out the means test, in our
response to the paper, "Financial conditions for funding
by the Legal Services Commission", CCCP 15/00, July 2000.
We revisit below the arguments raised then that apply here.
— Difficulties in collection: it will
often not be possible to obtain payment of the contribution before
action needs to be taken. With some clients at least, it will
be very difficult to obtain the contribution at all. Clients will
often be unable to afford to pay the contributions in one single
lump sum, so solicitors will have to make burdensome arrangements
to collect a series of very small payments.
— Uncertainty: Clients want to know
what a matter will cost them. If matters that are outside their
control and cannot be predicted can make the difference between
the advice costing £87 or costing £2,000, as seems to
be suggested by the first model, the certainty on costs that the
Government and the LSC have always considered so important is
removed.
— Allegations of negligence for failing
to complete the matter in a way that leads to a lower contribution:
As the figures from the OSS confirm, more clients than ever before
are complaining about their solicitor, not all of them with good
reason. Where a solicitor fails, for example, to complete a matter
within the standard fee, so that the case falls within the ex
post facto regime, some clients will complain that the matter
should have been completed within a shorter time, and this could
give rise to a whole raft of new complaints.
— Delay as solicitors avoid sending
reminder letters: "Shall I chase up the CPS, Mr Smith? It
will cost you £93 for me to send the letter."
— Whether the matter exceeds the threshold
for ex post facto billing can be arbitrary and outside the control
of both the solicitor and the client: Delay or failure to respond
by third parties is a frequent cause of increased costs. Often
the third parties concerned are Government bodies. It is unreasonable
that the requirement to pay a contribution should depend on something
so arbitrary and often within the control of Government.
— Risk of non-payment falling on the
solicitor: It is not acceptable that the risk of the client failing
to pay should fall on the solicitor. The question of a contribution
being payable is a matter between the client and the Government.
The amounts involved will be too small to make it cost effective
to sue the client for the contribution in the event of non-payment.
There is no legal or contractual authority for making the solicitor
liable.
41. There is a further hidden problem with
the idea of solicitors collecting the contributions. Many specialist
criminal firms do not operate a client account. This spares them
significant overheads in terms of audit costs, bank charges, accountancy
fees and insurance premiums. The collection of contributions would
require firms to set up a client account and incur these costs.
Alternatively, they may end up refusing to act for any client
who is liable to pay a contribution.
What are the relative advantages and disadvantages
of the three means test models suggested in the Government's consultation
paper?
42. The first model requires a complex calculation
that takes account of expenditure. It suggests that anyone with
more than £91 per week disposable income would have to pay
a lump sum contribution up front of up to £180. The first
problem is that the contribution is based on guesswork as to where
in the standard fee structure the case will end up. The second
problem is that, given that much committed expenditure is not
taken into account in means tests, the suggested contributions
are completely unaffordable for those at the margins (and the
more types of expenditure the test takes into account in order
to be fairer, the more complex and difficult to administer it
becomes). It is not clear whether the means test for the Crown
Court is to be the same as that for the Magistrates' court. If
so, it appears to be suggesting that our individual with £91
per week after the very few allowable expenses would be expected
to pay up to £2,000. This is so extreme as to raise questions
whether it would be HRA compliant.
43. Looking at model 2, we found paragraph
91 setting out the supposed savings completely incoherent.
44. A model that cuts off entitlement based
on household income, with no consideration of the numbers in the
household, does not appear just. A single man on £25,000
would be more able to pay (or at least to pay something) than
a married man with two children on the same total household income.
Given that many defendants are juveniles or young adults living
at home, would the income of parents, brothers and sisters be
included? The model does have the benefit of simplicity. If the
threshold was set somewhat higher and account was taken of the
numbers in the household, such a model might be acceptable. There
is however a strong case to be made, if the means test is to be
brought back, for having tapering in the system.
45. Model 3 has the benefit of simplicity
in not requiring details of expenditure, like model 2, but also
addresses the issue of tapering. With a higher overall threshold,
it is also slightly more affordable, but LAPG still feel very
strongly that the proposed levels of income at which contributions
start are far too low. We would start by saying that the cut-off
point should be the higher rate tax band, with contributions and
tapering taking effect below that level.
46. We have another significant reason for
opposing a means test that bites at too low a level. In this country
at present, there is no suggestion that your access to justice
in the criminal courts depends on how much you can afford to pay
for your defence. In America, there is a very strongly held view
that if you have a public lawyer, you will be convicted, whereas
if you can afford Johnny Cochrane, you will get off. The American
experience is very unhealthy. It leads to a situation in which
the poor feel excluded not just socially but from the very notion
of the law and justice. Respect for the law and a belief that
it should be obeyed are eroded, with detrimental effects for society
as a whole. LAPG does not want to see the UK go (some might say
go further) down that route of two tier justice and exclusion
of an underclass. If the means test bites at too low a level,
this could lead to some of the best criminal lawyers deciding
only to undertake privately paid work, which would create precisely
that two-tier system.
Should the authority to grant the right to publicly
funded representation be removed from the Courts and transferred
to the Legal Services Commission?
Are solicitors best placed to determine eligibility
for criminal aid to grant help to qualifying clients?
47. At present, it is quite clear in the
majority of cases whether the interests of justice test is or
is not met. In these cases, the process of the solicitor completing
the application form and the Court considering it adds little
value, and causes delay in the solicitor being able to start work
on a case. There are however some cases in which there is a doubt
as to whether the test is met. Given the anecdotal evidence that
the Courts are not applying the test consistently or always appropriately,
it is right to ask the question whether the Court is the right
body to make this decision.
48. The LSC argues, understandably, that
as it is responsible for paying the bills, it should have control
over when funding is granted. But it does not have the resources
to take over this process in its entirety, and therefore the proposal
is for the decision to be devolved to individual lawyers.
49. Opinion both in the profession at large
and on the LAPG committee, is divided as to whether this change
is desirable. Given the problems that have arisen in the LSC's
audit process, it would be intolerable if a difference of opinion
over whether the test was met in an individual case should leave
the solicitor at risk of losing a substantial proportion of their
fees. It would bankrupt firms, in the same way as if the issue
arose in relation to the means test. There is, however, no reason
why the LSC should not exercise its control by means of guidance,
monitoring, training, and, in the worst cases, the removal of
the right to self-grant or even the termination of the contract.
50. We also see two political and presentational
problems. First, there would be a perception that lawyers were
being allowed to "write their own cheques" with taxpayers'
money. Inevitably there will be the occasional high profile case
where mistakes have been made, which may tarnish the image of
legal aid as a whole.
51. Secondly, given the fact that the DCA
wishes to increase the workload of the criminal justice system
by 20%, it is inevitable that the CDS budget will increase significantly.
Whenever the legal aid budget has increased in the past, solicitors
have been blamed. The increase in immigration spending is a good
example of a situation in which the Government decided that the
solution to the increase in spending was to remove the right of
solicitors to decide whether a case merited funding. We believe
that that decision was fundamentally wrong, and this proposal
is moving in the right direction, but nonetheless we feel very
keenly the vulnerability of legal aid lawyers to these misguided
political and media attacks.
52. Because of these concerns, there is
a significant body of opinion within the criminal defence profession
that believes the right to grant legal aid should remain with
the Court. We believe that all of these concerns are genuine and
well-founded, and would want to see these concerns addressed before
forming a final view on whether this proposal was appropriate.
Legal Aid Practitioners Group
June 2004
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