Evidence submitted by Danny Simpson, Howells
Solicitors
1. REASONS FOR
RISE IN
GROSS CRIMINAL
LEGAL AID
EXPENDITURE
(a)
Expenditure under the CDS budget is bound to exceed
that under the "Criminal Legal Aid" budget pre 1 April
2001 (before the introduction of contracting) because the contract
re-defined work which had been counted as "civil" into
the criminal contract. This includes advice and assistance to
prisoners, which before contracting had been claimed as "legal
help" and claimed under what is now the CLS budget. Likewise,
applications to a High Court Judge in Chambers for bail and appeals
by way of case stated. Therefore CDS expenditure will have increased
over what was previously counted as criminal legal aid because
elements of what was civil legal aid were now counted against
CDS expenditure.
(b)
Because of abolition of the means test. In this regard
it is to be noted that although the cost of collection of contributions
under the old system outweighed the contributions collected, in
many cases defendants with means would not apply since they were
clearly ineligible. The abolition of the means test inevitably
resulted in the grant of representation orders to persons with
means who previously would not even have applied. Professional
rules require that Defendants are offered the option of applying
for legal aid rather than paying privately and this has resulted
in a net decrease in income for solicitors as otherwise solicitors
would have charged privately at higher rates.
(c)
Since the contract's introduction there as been a
constant increase in the scope of CDS work to provide representation
in proceedings which simply didn't exist previously notably:
Representation in proceedings for ASBOs (where there
has been significant pressure on local authorities and police
forces to increase the number of applications).
Representation in proceedings for prison disciplinary
offences before visiting District Judges.
Sex Offender Orders, Football banning orders etc.
2. CHANGES IN
"COST PER
CASE"
The introduction of the Criminal Contract produced
an artificial rise in the statistical cost per case because:
(a)
Each attendance at a police station by a solicitor
in the course of an enquiry would have been billed separately
and not in a composite bill at the end of the enquiry. Additionally
"advice and assistance" would be billed separately.
(b)
Thus under the old system a police investigation
involving three separate attendances and a claim for advice and
assistance would have counted as four "acts of assistance"
where as under the contract arrangements it would be billed as
one "investigation stage" bill. This has the effect
on CDS statistics of reducing the number of acts of assistance
and increasing the average cost.
(c)
Similar considerations applied in the proceedings
case where previously there could be three separate claims , advice
and assistance, early first hearings and the claim under a legal
aid order, all of which under the contract are subsumed into one
investigation stage bill.
(d)
Additionally some matters which were previously treated
as separate cases for standard fee purposes are now treated as
one—eg breaches of court orders which are disposed of at
the same hearing.
3. REASONS FOR
THE INCREASE
IN THE
NUMBER OF
REPRESENTATION ORDERS
BY MAGISTRATES
COURTS
(a)
The abolition of the means test resulted in people
who were financially ineligible previously and who would not have
been granted an order now receiving one.
(b)
Court computer software which generates a representation
order for each case number, where previously manually generated
representation orders would have included offences with more than
one computer case number.
(c)
An increase of the likelihood of receiving custody.
The risk of loss of liberty has risen substantially as is witnessed
by the increase in prison sentences.
(e)
Greater awareness of victims has resulted in orders
being granted to avoid cross-examination of alleged victims in
person by the alleged assailant.
4. OTHER COSTS
DRIVERS
(a)
S51 CDA transfers to the crown court result in many
cases being transferred which would previously have been discharged
in the magistrates' court following a plea bargain, a discontinuance
or discharge at committal. Increased costs result through the
instruction of Counsel in the Crown Court.
(b)
Although recorded crime has fallen in many categories
prosecutions for serious offences, particularly violence and sexual
offences has risen.
(c)
Government policies eg over domestic assaults (insisting
on continuing even where complainants retract) mean more prosecutions
continue to trial. Similar considerations apply to "closing
the justice gap" which results in pursuing prosecutions after
someone has been sentenced to prison for a subsequent offence
where previously this would not have been considered to be in
the public interest.
5. VHCCS
LSC figures in the most expensibe 1% of cases
which now account for over 50% of the budget. There are issues
about whether:
(a)
They are appropriately prosecuted. The sentences
on conviction for offences even of "serious frauds"
(the costs of which to the CDS buget are in the millions) are
well below the sentences imposed for eg street robbery and low
level class A drug supply which cost only some hundreds of pounds
per case. Some effort hast to be made to bring the costs of these
prosecutions into line with the harm done and the likely loss
of liberty. Much of the public interest in these prosecutions
derives from the importance of maintaining the financial integrity
and probity of the City of London—should there be a separate
levy on financial institutions to pay for these prosecutions?
(b)
The introduction of the Serious Fraud Panel to maintain
"quality" (with little evidence that it does) may have
had anti-competitive results.
(c)
The manner in which a prosecution is conducted significantly
effects the cost to the CDS eg by serving thousands of un-indexed
unsorted documents, something for which the prosecution takes
no responsibility. If the defence costs for SFO cases were financially
attributable to the SFO would this result in less costly prosecutions?
(d)
Serious Fraud is more likely to achieve a higher
category and thus higher rates of pay than murder where sentences
on conviction are greater. These cases last longer whereas in
most businesses the hourly rates would be discounted on a contract,
which is longer (bigger).
(e)
Can it be justified that some individual QCs specialising
in publicly funded fraud cases, where the risk of loss of liberty
is at the low end of the scale, are paid many times the salaries/fees
of senior surgeons, or Juniour Counsel representing street robbers?
6. FINANCIAL
CONTRIBUTIONS BY
DEFENDANTS
It was disproportionately costly to collect contributions
that were ordered. However, policy makers failed to take into
account the fact that many defendants were deterred from applying
because they new they would be disqualified or have to pay a contribution.
The means assessment was delaying case progression.
(b)
The mechanism of Defence Costs Orders in the Crown
Court was designed to avoid delays in the grant of representation
(and hence the progress of cases) and to be simple and workable.
In our submission these objects have been achieved. However, due
to a lack of training and guidance to Crown Court Judges, Defence
Costs Orders have not been made to the extent that they should.
This issue has been addressed, this year, and a rise in the number
and value of orders can be expected.
(c)
It is unclear why similar provisions to those in
the Crown Court were not made for the magistrates' court. We would
suggest consideration is given to identical provisions being made
with collection being enforced through the Magistrates' collection
procedures for financial orders.
(d)
Proposals for solicitors to have to collect contributions
are impractical—solicitors will not expose themselves to
the risk of having to collect fees from a client after a case
has concluded. Even if they had the inclination to take enforcement
action costs of enforcement would be unlikely to be recoverable
(under the small claims procedure). Additionally there are potential
pitfalls under the proceeds of Crime Act. A clients' contribution
would have to be paid "upfront" and this is likely to
result in delay in case progression.
7. FINANCIAL
IMPLICATIONS OF
GOVERNMENT POLICY
(a)
Expenditure on prosecution agencies has gone up and
the committee will no doubt have access to the figures for increases
in expenditure on:
The Crown Prosecution Service.
The Police.
The Prison Service.
HSE, DWP, Inland Revenue etc prosecutions.
Local Authority-anti social behaviour officers etc.
Prison discipline.
(b)
Providing extra resources for prosecution agencies,
is designed to increase the number of prosecutions for serious
offences which, in turn increase criminal legal aid expenditure.
(c)
The Government has not required departments to cost
the implications of their initiatives on the CDS budget eg the
introduction of ASBO's. Yet these are the main driver for the
CDS budget.
(d)
The rates of pay for solicitors have not gone up
since 2001 for magistrates' court work and since 1998(?) for Crown
Court work. The Costs audit procedures of the CDS and the National
Taxing Unit are rigorous, we would say nit-picking.
(e)
If costs of the criminal defence service have gone
up it is because more work is actually and reasonably being done.
There is no other way for the budget to increase as rates have
not gone up and audit will show up firms doing unnecessary work
on cases.
8. THE FUTURE
(b)
LSC funded "Legal Help" work has become
so unprofitable that there are now well publicised advice deserts.
This has not yet happened in Criminal Defence work because:
Standard fees have meant that large and well-organised
practices doing high volumes of work have remained profitable.
Older solicitors find it difficult to retrain and/or
are tied down by large overheads and so accept a falling income.
However there is clear evidence that young solicitors are not
entering the field of Criminal Defence Work because of the low
rates of pay.
(c)
If salaried "direct" services are introduced
to replace private practice they will be more expensive as CDS
data on the PDS and CLS data on "not for profit" contracts
show clearly.
9. CONCLUSION
(a)
Insofar as expenditure on Criminal Legal Aid has
gone up on a like-for-like basis this is attributable directly
to an increase in work the workload, driven directly by government
initiatives.
(b)
Expenditure has in any event gone up far less than
would be proportionate to increases in expenditure on prosecution
agencies.
(c)
Criminal Defence Solicitors provide value for money
but are in danger of being driven out of business in the same
way as CLS providers of "Legal Help" in areas of family,
housing and welfare benefits law.
(d)
Crown Courts have been slow to use the provisions
relating to defence costs orders but headway is now being made
and Judges are now required to consider an order in every case.
Similar provisions could be applied in the magistrates court.
Danny Simpson
June 2004
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