Evidence submitted by TV Edwards, Solicitors
1. INTRODUCTION
1.1. TV Edwards is one of the larger providers
of publicly funded services. Its income from the Legal Services
Commission exceeds £2 million each year and represents approximately
two thirds of the firm's total income. The firm has a substantial
reputation in a number of areas of law but in particular in the
practice of criminal law. At the present time the firm has a specialist
fraud unit and three criminal law teams working on a range of
criminal cases from the routine to some of the most complex and
difficult cases being undertaken. The firm services four duty
solicitor schemes in North East London and provides a 24 hour
service on each day of the year.
1.2. The firm has contracts with the Legal
Services Commission in crime and a number of civil law areas and
therefore holds the specialist quality mark. It is categorised
as a category 1 firm and receives Legal Services Commission financing
for its trainees. It holds the Investors in People accreditation.
The category 1 status would be at substantial risk under the proposals
for the reintroduction of a means test.
1.3. Overall the firm's gross profit margins
are of the order of 14% of income and the firm operates on very
tight margins. The profit margin is under half that for the Legal
Services market generally. The proposals for the reintroduction
of a means test would reduce margins further.
2. THE TRANSFER
OF THE
GRANT OF
LEGAL AID
FROM THE
COURTS TO
THE LEGAL
SERVICES COMMISSION
2.1. The firm welcomes this proposal which
it believes will lead to a far more efficient grant of representation
orders in appropriate cases and appropriate refusals where legal
representation does not add sufficient value to the process.
2.2. The policy in relation to the grant
of representation orders varies enormously between different courts
and in different parts of the country. An extraordinarily generous
approach is taken in some courts largely in their own self interest.
More cases could proceed without legal representation if the magistrates
and district judges did not insist on advising defendants that
they could be subject to periods of custody when no such outcome
is, in any event, likely.
2.3. However, a more sensible approach to
the grant rate of representation orders will have clear affects
on our income. It will be essential that levels of remuneration
are kept under review if a firm such as ours is to remain viable
in this specialist area of law.
2.4. Furthermore, it should not be thought
that the provision of pre-sentence reports can replace the role
of a solicitor in every case where a custodial sentence is not
appropriate. We have an established client base with whom we work
closely and with whom there are high levels of trust. As a result
of this clients will often accept professional advice to follow
a course of action which would not have been their preferred choice.
That bond of trust cannot be replicated by probation officers
as their role is now understood. In this connection the removal
of advice and assistance and advocacy assistance is a substantial
policy error.
2.5. We would anticipate the delegation
to us of most decisions in relation to the grant of legal aid
and the issuing of practical guidelines by the Legal Services
Commission will be an essential part of these developments. Grant
should be automatic in indictable only cases and clear guidelines
will be needed for eitherway offences, including in particular
lower value thefts and criminal damage having regard to local
court practices and the criminal record of the defendant.
A representation order need only be automatic
in a very limited number of summary only cases but that should
always include assault on police and in most circumstances the
taking of motor vehicles and disqualified driving.
The scheme will need to contain an appeals mechanism
which should be part of LSC procedures as courts will look to
their own convenience and control will be lost. However, the review
committee structure is in place. These committees will also have
to resolve applications for the transfer of representation orders
between firms.
3. THE RE-INTRODUCTION
OF A
FINANCIAL ELIGIBILITY
TEST
3.1. The firm believes that there are very
substantial problems indeed with the introduction of a means test.
Many defendants before the criminal courts have a vested interest
in delay. Any excuse which will enable a case to be delayed will
be used to the full by them. There will be huge practical difficulties.
Many defendants will have been remanded in custody and so simply
be unable, unless passported, to provide evidence of means. The
self employed more often than not have no paperwork. A defendant's
spouse or partner will often not be told of the proceedings or
deliberately refuse to co-operate.
The old regime of contributions were abolished
for good reason and was never effective in raising significant
sums of money. It resulted in costs to the criminal justice system
because of the number of delays. The accounts of the Lord Chancellor's
Department were qualified year on year as the practical difficulties
of running the scheme overwhelmed the courts. Yet the government
simply expects the profession to solve the problem. It cannot
and will not do so.
3.2. The better approach is the effective
operation of recovery of defence costs orders which now have
to be made as a matter of duty at the conclusion of convicted
cases in the Crown Court (which includes any related magistrates
court work). This has the benefit of avoiding re-cycling money
in the event of an acquittal. A more practical course would be
to extend the orders in defined cases to the magistrates courts.
They might encompass cases listed for trial, both because it identifies
costs as a significant issue to the defence at an important stage,
and gives time to deal with the practical issues identified below.
3.3. It must also be remembered that a greater
number of unrepresented defendants will result in significant
increases in the number of orders for costs to be paid from central
funds. In these cases solicitors will have been paid at private
client rates which are presently running at about three times
(and not twice as suggested in the paper) the legal aid rates.
The charge to central funds remains a charge on the overall budget
of the Department for Constitutional Affairs.
3.4. This firm has considered its position
should there be a re-introduction of a means test in the forms
of models 1 (which is by far the worst proposal) or 3.
3.4.1. The firm would not co-operate with
any provisional grant or short-term grant of representation orders.
These would lead to nothing but unworkable relationships with
the courts and our clients. To represent a client for two weeks
and then tell a client that one is withdrawing would either damage
the relationship permanently or cause chaos in the handling of
case as papers would already have begun to flow between the relevant
parties. The pressures to continue work for no remuneration on
individual solicitors would be unacceptable and the firm would
have to introduce a policy of not acting for a client until a
full grant had been made.
3.4.2. Any system for the collection of
contributions by solicitors would be unacceptable to this firm
and it would be likely that we would introduce a policy not to
act in any such cases. It would require the introduction of accounts
systems into our criminal department which at present do not exist
and we would need to employ additional accounts staff for whom
there is no financial provision. It is to be noted that whilst
the courts are to save £9 million in administrative costs,
no proposal is made to transfer that money to the solicitors who
take over precisely the same jobs but with real penalties, upon
the re-introduction of a means test. Firms such as ours could
simply not afford to fail to collect contributions and see our
income reduced by the notional deduction of monies we have not
seen. Furthermore moneylaundering notices would have to be served
on NC1S in every case with additional administrative overload.
3.4.3 Unlike in civil proceedings, clients
will have no interest in keeping up payments of contributions
to costs and would see benefit in the difficulties that the withdrawal
of their lawyer would cause.
3.4.4. The paper fails to identify the real
problems in calculating a client's financial position. Defendants
are by their nature people who fail methodically to collect documents.
Some will be in custody. We have already referred to two further
practical problems. Individual defendants are not able to obtain
co-operation from their partners in the disclosure of information
as to means and in particular as to documentary evidence in support
of that information. There are very particular problems in relation
to the self employed. It is a bland statement to suggest that
tax returns should be made available. Most clients who are involved
in the criminal courts do not have tax returns; they do not pay
tax. They work in a substantial black economy and their means
could never be assessed in a way which would be acceptable to
the National Audit Office.
3.4.5. Model 1 and model 3 therefore represent
a wholly unrealistic set of proposals that would result in the
qualification of accounts, the delay of cases; and the refusal
of this firm and others operate the system at all.
MODEL 2
3.5.1. This represents the least worst alternative
but the paper is far from clear in its intention. On one reading
clients involved in a case costing £149,000 would be excluded
from public funding if they had capital of £25,000. We must
therefore assume that model 2 is intended to apply to magistrates
court work only.
3.5.2. There remain practical problems which
will result in qualified accounts because documentary evidence
has to be provided and will not be available.
3.5.3. To become viable it is suggested
that the following minimum steps would be required.
(a) No means test should be required
whilst a defendant is in custody.
(b) For passported clients the courts must
provide (or the case will be adjourned) an e-mail connection to
the DSS with an immediate response facility.
(c) Similarly solicitors must be given
access to an e-mail address at DSS with an immediate response
facility. As there is now no financintg ahead of a representation
order solicitors will not be able to undertake any other work.
(d) Those without national insurance numbers
will have to be excluded from the means test.
(e) Capital be ignored. Even with the concession
on equity in a home, it is impossible to document ownership of
capital. The clients word has to be accepted. It is not possible
to check the position with every bank and it has never proved
viable to obtain valuations of items such as jewellery or cars.
In any event ownership of such items does not provide cash which
lawyers will require to see in advance (and for which they will
require financing for an accounts facility). One cannot pay for
criminal cases by instalments. Those with real capital will be
excluded on income grounds in any event.
(f) The income of partners not to be documented.
(g) The income of the self-employed not
to be documented.
(h) For the employed a requirement only
a single wage slip be required as any other requirement will
lead to delay.
3.6. It remains the view of this firm however,
that notwithstanding the political objectives, the reality is
that the identification of means ahead of the conclusion of the
case, will cause delay and unnecessary expense to the criminal
justice system and the purported savings will be more than outweighed
by additional costs elsewhere.
3.4.7. We recommend instead the introduction
of some obligatory recovery of defence costs orders in the magistrates
court. Its main features might be as follows:
(a) It excludes passported clients.
(b) It is for a fixed sum that would fall
due on conviction.
(c) It would only apply to cases listed for
trial.
Such a scheme is workable proportionate and
achieves the objective of allowing cases rapidly to proceed.
TV Edwards, Solicitors
June 2004
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