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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 746-ii House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE constitutional affairs committee
draft criminal defence service bill
Tuesday 29 June 2004 RODNEY WARREN, EVLYNNE GILVARRY, HELEN COUSINS and ROBERT BROWN
STEPHEN IRWIN QC and ANDREW HALL QC Evidence heard in Public Questions 95 - 185
USE OF THE TRANSCRIPT
Oral Evidence Taken before the Constitutional Affairs Committee on Tuesday 29 June 2004 Members present Mr A J Beith, in the Chair Peter Bottomley Mr James Clappison Ross Cranston Mr Clive Soley Keith Vaz Dr Alan Whitehead
________________ Witnesses: Rodney Warren, Chairman, Access to Justice Committee, Evlynne Gilvarry, Director, Representation and Law Reform, Law Society, Helen Cousins, Chairman, Criminal Law Solicitors' Association, and Robert Brown, President, London Criminal Courts Solicitors' Association, examined. Chairman: Good morning and welcome. We are very grateful to you for coming along to give us some help with this matter. Before we start, we will declare any interests we have. Ross Cranston: I am a barrister and recorder. Keith Vaz: I am a non-practising barrister. Mr Clappison: I am a non-practising barrister as well. Q95 Peter Bottomley: What effect do you think these proposals will have on the number of solicitors willing to undertake legally aided criminal work? Ms Gilvarry: We have great concerns that the bureaucracy attached to the proposals to introduce the means test would cause a number of solicitors to consider that they could no longer continue to do criminal legal aid work. The proposals suggest a transfer of risk and bureaucracy to solicitors which is simply unacceptable for a government which claims that it wishes to reduce the burden on small businesses - and many legal aid practices are small businesses. Q96 Peter Bottomley: As well as some good solicitors giving up civil legal aid work or the equivalent, they are likely to have some good solicitors giving up criminal legal aid work as well. Ms Gilvarry: I am sure that is the case. Our statistics suggest that there is an ageing cohort of criminal legal aid practitioners. The real worry is that new entrants are not taking up this work, and they certainly will not be encouraged to take it up if they have to sign up to a regime that involves an awful lot more bureaucracy. Q97 Peter Bottomley: Is the consequence of that likely to be more injustice? Ms Gilvarry: I think, intuitively, yes, of course, but perhaps I would ask a practitioner to say how she might feel it would operate in practice Ms Cousins: In practice I think it is bound to lead to injustice because there will be less availability. There will be less availability of good people willing to do the work and that of itself leads to inaccessibility and inaccessibility leads to lack of justice. So, yes, it is night-follows-day, I think. Q98 Peter Bottomley: Do you believe that the proposals will allow solicitors to undertake more private client work as expected by the Legal Services Commission? If so, would you welcome this? Ms Gilvarry: I honestly do not think there will be a lot of extra private client work arising from these. There will be possibly a number of people who will not qualify for legal aid. Whether they will be able to afford to pay for it privately is an unknown question. I somehow doubt it. Perhaps I can help just a little on that. I run a criminal practice in a busy city centre. I do not have a client account, I take no money whatsoever from anybody, and this change would not make me do it because the people who I service would not be in a position to pay, even if it is the £34 that is being talked about. From my point of view, it will not change the work that I do at all. Q99 Chairman: Do you get the sense that the £34 is designed actually to help full the public coffers or it is just an irritant? Ms Cousins: It is scraps. It is not going to achieve what the plan is to achieve. We have views that the place where effort should be focused is the crown court, the RCDOs and indeed recovering costs from people who could properly pay in the higher cost cases. Mr Brown will be able to deal with that one far better than I. Mr Brown: As I am sure you know, 0.1% of all criminal cases accounts for approximately 25% of the total expenditure, but those expensive cases were in the High Court and the crown court. Our view is that whereas we are not against the re-introduction of a means test, if the Government really wants to recover funds or the Commission wants to recover funds, the way to do it is to look at those cases which cost the public purse most. Being able to pick up £34 here and there from the odd case in the magistrates court, from people who may not pay anyway, is not going to make any significant net impact on legal aid spend, so we would recommend that measures taken to ensure, for example, through more active implementation of recovery of defence costs orders, recovery of substantial funds from defendants who could pay, in those cases which are truly expensive. I think the use of the word "scraps" is very apposite. This is really going to tinker at the edges and we do not think it will have a substantial net benefit to the budget. 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, they are suggesting that the less serious cases that would be done by the Legal Services 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." Q120 Chairman: Those are the cases where it would be fairly automatic. Ms Cousins: Yes, somebody on a murder is going to pass the interests of justice test. "For summary-only offences and the less serious either-way offences, the funding decision would be made by fully trained LSC staff. We anticipate requiring all solicitors to submit their applications through the on-line service." Q121 Ross Cranston: It is on that that I was asking initially for your reactions. Ms Cousins: I am grateful. Mr Warren: I would say in respect of that proposal that I would approach it with considerable caution For the Legal Services Commission to be able to deliver the speed of response that we would require, there is a similar process that operates now in terms of civil law actually for the grant of some types of legal aid order, and experience has not shown that it is consistently effective. We are talking here about a much bigger process potentially. I do not know what the numbers of applications would be, but they would be great. Of course court hearings these days come very quickly after charge, so the time available to undertake this process is very limited. Very often a defendant will be in court within three days of charge and so the time for turnround has to be quick to enable it to operate. I would be very keen to see exactly how they would propose that this would operate effectively. I would envisage that they would have to get it quite close to a 24-hour service to be able to undertake it. Q122 Ross Cranston: That is the sort of issue that I wanted to explore here. Mr Brown: It seems to us that the institution which really has the vested interest in dealing with cases efficiently is the court. The court is the body that has to deal with the case and, if they have the power to grant or refuse a representation order, they have an interest in dealing with it efficiently. If there is a problem or a log jam or cases being held up because the application for a representation order has not been dealt with, there is someone in the court that can tell the legal aid clerk in the court to sort it out, which is what has always happened and happens now, rather than place it in some other location away from the court because it is the court, after all, that wants to get on with the case. Q123 Ross Cranston: From what Mr Warren has said, there is no confidence that if you send it off somewhere else it is going to be dealt with within its 24-hour period. Mr Brown: I think the Commission could probably speak best about that. I know they have certainly said they were planning to put in an arrangement so that it will work. I think time will tell. Q124 Mr Soley: If the proposals go through, what are the chances in your judgment of a challenge under the Human Rights Act? Ms Gilvarry: Could I just say that we very much hope the proposals do not go through. Q125 Mr Soley: I understand that, but if they do. Ms Gilvarry: At the outset, could I make the point that we have a great worry that this means test will be reintroduced in a rushed way, in isolation from what has just been announced, which is a fundamental legal aid review, and if we are to believe the aims of that review it is to look right across the criminal justice system to see where the main drivers are, to see where costs can be saved, to see where efficiencies can be made. I will answer your question in a moment, but we earnestly hope that there will not be a knee-jerk introduction of this scheme, which might even working at its best only yield very small amounts of money, without proper analysis. Will there be a challenge? I do not know whether there will be a challenge. It depends on precisely how it is introduced. Mr Brown: It depends how it works in practice. We do not know, but it does not seem to me, with respect, an obvious situation where someone's right to a fair trial is going to be denied as a result of this legislation. Of course, if it transpired that defendants were being denied the right to representation because there was no legal aid in case that deserved it, then that could be a breach of their right to a fair trial under article 6. We have mentioned a number of concerns, which you know about. There are many serious concerns that we have but they are not particularly Human Rights Act concerns. Q126 Mr Soley: Other people have said that they think there will be a challenge simply because there will be the denial of a right to a fair trial. Mr Brown: One would have to see about that. It may be that is the case, but it does not seem to me that that is obviously the greatest threat. Q127 Mr Soley: If there was an appeal to a court, if the solicitor turned down a request for legal aid, would that reduce the chances or not? Ms Cousins: I think it is an area which certainly somebody will look at and take advice. It is not something that I feel able to answer at this stage. Mr Warren: I think it would probably reduce the impact of it. I would not exclude at first, if this legislation were to be enacted, a number of perhaps ambitious challenges under article 6. I make no comment about whether or not they would be appropriate but I think it is quite likely that the point would be taken. It may well be, in respect of the grant on the interests of justice test, that an appropriate appeal process to a court could be a way of dealing with issues of that sort. Of course it does not allay the considerable fears we have about administration of the means test in the various proposals that exist there. Q128 Mr Soley: Would any of the clients you have who cannot afford to pay their own defence costs be denied legal aid under the means test proposed? Ms Cousins: Under model 2 there is a £25,000 cut off. Yes. Q129 Mr Soley: Could you give me an idea whether it would be a lot or few? Ms Cousins: People in other areas would suffer more greatly than mine. I practise in central Leeds. Earnings in that area are considerably less than they are in Hertfordshire or lots of other areas of the country, so it would perhaps not affect my clients so much, but I can see that there would be vast tracts of the southern counties where £25,000 is really not a king's ransom. Q130 Mr Soley: On the issue of the general costs, I take it you share the concern that the costs are rising very fast. You would agree with that, would you? Mr Warren: We would. Q131 Mr Soley: Everybody knows they are against it but nobody knows what they do about it. Mr Warren: Yes. We are very concerned about it. Q132 Mr Soley: I hear you saying you would like a bit more research done but have you any thoughts on it. Mr Warren: In terms of controlling costs? Q133 Mr Soley: Yes. Mr Warren: Certainly, I think perhaps a good example and an immediate example is that in today's Times there is an advertisement for a judge's job in what is called the Community Justice Court. It is a pilot to be run in North Liverpool. It is, I think many people would agree, a very ambitious and appropriate project to try, but the idea is a more holistic approach to dealing with the issues surrounding criminal law and criminal behaviour. The point about that though is that a lot of work has been undertaken in preparing this pilot to make sure that it is effective, and we wish it well. Recently, I asked those responsible for the implementation of this process, including the purchase, for instance, of new court buildings, how much money had specifically been allocated for legal aid because it seems to me inevitable that if you introduce a process which has a different sphere of operation, probably with different procedures and indeed with different sentencing powers, but certainly to include civil law within its remit, that you are going to increase the need for legal aid work, and the answer was that there had been no provision made at all for legal aid but it was at least pleasing that every other agency had created its appropriate budget. That type of absence of acknowledgement is what concerns us. I can give another example. Fairly recently there was an announcement of a scheme called "Operation Payback", a very laudable process indeed to chase fine defaulters. It is estimated - and I forget the precise figure - that something like £350 million is outstanding in unpaid fines and this is a process designed to bring these individuals who do not pay to book. We support it fully, but the point about it is that almost by definition those individuals if they are brought back to court will qualify for legal aid, many of them will anyway, because there is a realistic prospect that custody could be an option in dealing with the fine default, and we are not aware - or I am not aware anyway - of any provision being made in legal aid terms for the costs of dealing with those people. And actually, of course, there is a direct cost and it would be relatively easy to measure what it might be. Q134 Mr Soley: I think you have indicated already in what you have said that you do not think these proposals will save much money. Is that true for all of you? Or do you believe it would be more effective to try to save money from the more expensive cases? If so, how? Mr Brown: I have already mentioned the very high cost criminal cases which account for a vast proportion of the budget: 50% of the whole crown court budget goes on 1% of crown court cases. We have for some time suggested now that those cases should be removed from the legal aid budget as it stands and accounted for separately. A decision to prosecute one customs case, one fraud case, for example, may lead to tens of millions of pounds in costs for the prosecution, for the court service and for legal aid. Those decisions at the moment are made without any cost benefit analysis. I will give you one anecdote. In a recent case involving interfering with computers was prosecuted and no one received a custodial sentence in the case. Some people pleaded guilty and received a non-custodial or short custodial sentence. The case, as I understand it, cost something like £20 million in defence legal aid costs. Was it really worth prosecuting that case? Many fraudsters commit serious offences and ought to be brought to book, but is it really right that the state should spend such a disproportionate part of the budget on those cases? We would like those cases to be taken out of the system so that they can be looked at independently and a proper cost benefit analysis can be made by a properly appointed officer, whether it is the attorney general or the DPP or someone else, before a decision is made to bring a charge, because, once the decision is made to bring a charge, it sets in an unstoppable train of costs and one of our objections to that is that this then deprives the rest of the budget, so that people who may be victims of domestic violence, people with apparently much smaller problems, suffer by cuts in legal aid because the money is draining into the big area. We would like to see is big are taken out of the budget and examined. We think much greater savings could come in there. Another specific way in which I think in financial terms the Government shot itself in the foot was to change the law so that when defendants have their finances restrained pending law proceedings those restrained funds can no longer be used to pay their lawyers, which was the case before the Proceeds of Crime Act. As a result now legal aid money is spent to pay lawyers who are acting in restraint proceedings, and, as a result of the Proceeds of Crime Act and other money laundering initiatives, there are very substantial cases relating to the restraining of funds/ assets pre-trial, and the Legal Aid Fund is now paying for that because the Government decided that lawyers could not be paid out of the restrained funds. We think there are some big initiatives that could be taken to protect the general legal aid budget. Although we are not against the notion behind this bill, which is that those who can afford to pay should pay, we think it is very much tinkering at the edges. Q135 Chairman: Your big initiative is concerned with somebody else paying rather than the legal aid budget, but the problem is still there, is it not? - except that there is a possibility that you should step back from cases, on the grounds that it is just not worth the money. Mr Brown: That is absolutely right. Some of these cases will still have to be prosecuted and they will have to be funded. We perceive there are two problems at the moment. We think there is a significant number of cases, which cost vast amounts of money, which frankly probably should not be prosecuted in that way, brought to justice in that way. Secondly, the justice system as a whole is being disproportionately affected as a knock-on consequence of these cases eating into the budget. We see figures in these papers before us where there may be a net saving of £2 million per year here ore £7 million after three years. You have to charge one person with a large fraud case and suddenly the Commission has to find £20 million or £30 million. Ms Cousins: We are not suggesting that these people are not brought to book in one way or another but there are other ways in which they can be punished and ways that in fact are far more difficult for them than a conditional discharge or a very short non-custodial community penalty. There are all sorts of directors' powers, things that I know nothing about but which Mr Brown can address. Ms Gilvarry: A whole range of civil penalties could properly be applied to a good number of these cases with corresponding savings on the Legal Aid Fund. Mr Brown: On your other point about are we concerned about the budget always going up, of course we are concerned about it but that is a consequence of the society in which we live and other decisions that are taken. The Government sets targets to increase arrest rates. As we know there are more and more new criminal offences created all the time; very budget-rich policing; the creation of the National Criminal Intelligence Service; the creation of the new Organised Crime Squads. If society wants to tackle crime - and of course we support society doing that - there will be a knock-on effect, there will be more cases. The technologies in the methods of investigating crime are far more sophisticated now than they used to be. We cannot just look at the budget 10 years ago and say, "What has changed? Why has it gone up? It is because the police are more active; it is because they use methods of detection in terms of getting access to computer records, mobile telephone records and so on which just did not exist 10 years ago. It is partly a consequence of drivers which are actually beyond the control of those who are responsible for the budget. Like the Legal Services Commission, they have to put up with yet another two Criminal Justice Acts. Q136 Mr Soley: I do not want to go into it, but there is a danger in that argument because almost any organisation can make the argument that things change, therefore our costs go up. Other organisations do something about the costs. I accept there are unquantified factors in this one. On the recovery of defence costs orders in magistrates' courts or for that matter in crown courts, do you have any views about how effective that is and whether it is better done in crown courts or magistrates' courts? Mr Warren: The approach to that process is a good one. We have supported it since the idea first was mooted. We think it is probably not used enough and we would support its introduction in the magistrates' court. It is probably a good and appropriate process - we think - if it were employed appropriately for dealing with the very issue which we are concerned about; namely, that those people who can afford to pay should pay the appropriate amount towards the costs of their defence if they are convicted. Q137 Mr Soley: Do you think that could be done better than it is at the moment? Mr Brown: Yes. I think there is lots of evidence that they are not being used as effectively as they could be. They only exist at the moment in the crown court - they only apply to crown court proceedings, but of course those are the expensive cases and again one does hear of cases where defendants may be, let us say, convicted of serious fraud offences, where there has been substantial benefit, and relatively small amounts are ordered to be paid by them by the judge in relation to defence costs and a realistic view is not taken of the true defence costs and we do think crown court judges should be more active in enforcing them. They come at the end of the case - it is really very much the fag end of the case - and we feel they do not receive the attention or are not enforced with the energy which could be the case. We know that senior members of the judiciary are exhorting crown court judges to make better use of them and we support that. You could recover far more than £34. Q138 Ross Cranston: Could I take these high costs cases. I take the point you have made - although I think there would be arguments about whether fraud ought not to be prosecuted: white-collar crime cannot go unsanctioned, and I am sure you would not suggest that - but last week we had Lord Justice Judge and he was suggesting that one way of getting down costs and bearing down on costs was greater case management. He showed us the Merlin drafts of a new set of criminal justice rules comparable to the Woolf rules on the civil side. He gave a number of examples, one of which was that in some cases when you have a number of defendants you did not need separate solicitors representing each defendant, it could be done by one firm. This also has implications for the Bar as well. I would like your reaction to that sort of notion that you can bear down on costs by greater case management. Mr Warren: First, if I may, to deal with the Criminal Procedure Rules that you mentioned, the Law Society has been keen to play an active part, has been playing an active part and supports fully the work that is going towards their creation. We think they are going to help considerably. I am concerned, I think, at the suggestion that case management alone is the answer to the question. Q139 Ross Cranston: I do not think he was suggesting that; I think he was saying it was a contribution. Mr Warren: Yes, I would agree. Mr Brown: I think it has been agreed, as part of the recent review carried out by the Lord Chancellor, that in future in very high cost cases no two defendants will ever be represented by the same solicitor, they will have to be separately represented. Therefore, on Lord Justice Judge's suggestion that money can be saved by only one firm being involved on behalf of one defendant, I am afraid we are moving in the other direction. Q140 Ross Cranston: I do not want to mistake what he said. He said that in some cases where there was not a conflict. Mr Brown: If there is no conflict, then that often is the case. Q141 Ross Cranston: Is that done now? Mr Brown: So far, yes, firms do act for more than one defendant in the same case if there is no conflict. My understanding is that the new protocol reached by the Lord Chancellor or the Bar will ensure that in future that will not be the case and that individuals will have to be represented separately. Ms Cousins: It can be a very expensive mistake. There maybe no conflict at the beginning but then something happens, as it can, and suddenly there is enormous conflict which means that the solicitors withdraw from representing both defendants, the case goes back to the beginning, the costs in something like that can be huge. If a mistake is made about conflict or if the situation develops in a different way, it is extremely expensive. Ross Cranston: No doubt we will ask the Bar about this. Chairman: Thank you very much indeed for you help. You have thrown light on a number of matters. Witness: Roy Morgan, the Legal Aid Practitioners' Group, examined. In the absence of the Chairman, Mr Soley was called to the Chair Q142 Mr Soley: Mr Morgan, your submission indicates that the rising cost of the Criminal Defence Service is primarily due to external factors like the Government' policy of "narrowing the justice gap" in bringing more people to justice. Would you accept that savings could be made through changes to the Criminal Defence Service itself? Mr Morgan: I think there are a number of factors that have caused increasing costs - and you have heard lots of them already: the greater number of suspects before the courts increased sentencing guidelines and so on - but Government initiatives have created an explosion in many areas, and ASBOs and so on is just one example of that. Can savings be made? I think they can be made but I think we need to look in a different direction. From the evidence I have seen given to this Committee already, our paper is one of the few papers that has touched upon the numbers of legal aid orders, representation order that have been granted. If you look at the reason for that, it might show where savings can be made. One of the reasons is the culture that has existed for some years in the past of overcharging by the police, overcharging leading to cases ending up in the crown court when they perhaps should not have ended up in the crown court if they had been correctly charged. You are right, in the crown court the charge is reduced, the case is dealt with, but that reduced charge could have been dealt with in the magistrates order at much less cost and at a much earlier stage. There have been some improvements. The use of CPS lawyers in the police station has brought about more accurate charging and less overcharging, but from the early findings - and I can only refer to the info I have been given by the Crown Prosecution Service - the culture still exists whereby the police are referring only a small percentage of cases within the police station to the CPS lawyer. Q143 Mr Soley: Have you any further specific ideas on how overcharging could be dealt with? Mr Morgan: Greater use of the CPS lawyers in the police station and a mandatory use of those CPS lawyers in the police station by charging officers. The figure has been shown that of those cases that have been referred to a CPS lawyer in a police station, some 30% result in no charge at all, whereas the officer in charge of the case would previously have charged. Q144 Mr Soley: You also suggest that many of the additional orders are not caused by the abolition of means testing but are due to a change in procedure, whereby, instead of adding new charges to an existing legal aid order, a new order is now issued. What effect is this likely to have had on the number of orders granted? Mr Morgan: Quite dramatic. It follows on from the point I was just making. If a higher charge is brought at the outset, a representation order is granted to represent a client with that charge and weeks or even months later the charge is changed. Previously we would have written to the courts, the initial order would have been amended, there would have been one order for that one case. Now, a second new order under a different reference is granted and it looks as though two orders have been granted, whereas only one case has been dealt with. Q145 Mr Soley: Just to be clear about this, it would still be relating to the original case but a new order has had to be granted because of the different charge in that case. Mr Morgan: That is right and the new reference procedure. Q146 Dr Whitehead: You have said in your evidence that you are "completely opposed to having to calculate and collect contributions in relation to the means test". What about the interests of justice test? Are you also opposed to the suggestion in the draft proposals that solicitors should apply that test? Mr Morgan: No, we do not object to it at all. There are mixed views. There are arguments either way. At the moment, the interests of justice test (what used to be called the Widgery criteria) applied by the magistrates' court has worked fairly well. There are criticisms of inconsistency and of some courts being too favourable towards defendants. Dealing with the latter for the moment, if I may, there are examples of representation orders being granted for matters such as cycling on a pavement and that sort of thing. The fact that we know of those suggests that they are rare events, and I have yet to see any evidence of how common they are, to be frank. There is constant referral to evidence of unfavourable grants of representation orders, but, as I say, I have yet to see the evidence of it. Were the matter to pass to the Legal Services Commission, there are initial concerns with that. The magistrates' court generally uses clerks to deal with the interests of justice test. They are clerks who have either been in private practice in the past at some time or who have day to day experience of seeing defendants and representatives before them, and they have the experience of understanding a defendant and a defendant's case - and the prosecution case, for that matter. The Legal Services Commission would use, to be blunt, an administrator who has probably, as has been mentioned only ten or 15 minutes ago, never seen the inside of a court room or a police station or a solicitor's office or has never been confronted with a client before, so there are reservations there. Obviously the intention is to delegate it as a devolved power to solicitors. Provided there are appropriate safeguards in place, I think that could work. Earlier on you referred to the Legal Services Commission evidence on that. I must confess I was not aware of the Legal Services Commission proposals until I read the evidence they had already given to this court. I would like to see some more work done on that. The proposals could work, as I say. They are suggesting, as was mentioned just now, the indictable only offences would be almost automatic. The more serious either-way offences could be automatic. I would like to know what their definition of the more serious offences are, because it is the less serious offences, that they would deal with, that would cause solicitors the problem, the problem of second-guessing, as has already been referred to. Could I give you examples of that. I suspect they might consider that a less serious either-way offence would perhaps be a minor shoplifting matter: an offence of dishonesty which could cause loss of job, with all the inherent costs to the country that that involves and disaster to the family. Domestic violence matters sometimes result in just a binding over. They may regard those as less serious offences but the domestic violence order that results perhaps in a binding over rears its head in contact proceedings or care proceedings and the impact can be immense. There are far greater factors to be considered than just blunt objective tests. I would like to see some more information from the Legal Services Commission on how they define less serious and more serious offences. Q147 Dr Whitehead: The draft Criminal Defence Bill consultation paper, as you have alluded, states that there is some evidence that courts have been too favourable to defendants and also inconsistency in applying the interests of justice test referred to in paragraph 5, schedule 3 of the Access to Justice Act 1999. You have mentioned that you are not sure whether there is serious evidence that that is the case. Is it your view that there is more than anecdotal evidence or that that case is essentially anecdotal? Mr Morgan: I have some personal experiences where I have been granted a representation order where I was surprised. No, it is only anecdotal. I am trying to look at the reasons why some courts may be more favourable towards the grant of representation orders than others. My guess would be it is in the busier courts, where the clerks take a pragmatic view that to maintain the throughput of cases in that court it is far better to have a defendant represented than not, because an unrepresented defendant causes mayhem sometimes, certainly delay and often miscarriage because the defendant is relying upon the clerk to look after their rights and that places the clerk in a difficult position. Q148 Dr Whitehead: So it is simply to keep the system going. Mr Morgan: To put it bluntly, yes. That is the view taken by many clerks, I think. Q149 Dr Whitehead: If one looks at statistical evidence - and I realise that this is not the moment to go into that - on the one hand there has been a steep increase in the number of legal aid applications, a 40% increase between 2001 and 2004, but the number of cases refused on the interests of justice, although they went up, as a percentage is almost consistent. You could put two interpretations on that. You could either say that the courts have always been over-willing to grant these applications, perhaps for the reasons we have mentioned, or you could say that the courts are taking a fairly consistent view, unlike the suggestion in the draft Criminal Defence Service Bill that actually they are doing a relatively good job in keeping the numbers relatively consistent. Which way might you go? Mr Morgan: I think it is the latter. I think generally they are doing a good job. If you talk about the more favourable grants, there are some less favourable grants. Some courts take a very stiff view, and solicitors know which they are, and they know they will have their work cut out to obtain a representation order and very often find themselves having to attend following a refusal to make oral applications and that increases the costs essentially for everybody. There are examples of certain courts that despite the six or seven points of the Widgery criteria (as it used to be known) rely upon one: is custody likely or not? If custody is not likely, they do not grant it, ignoring the rest of the criteria. Some courts are overly harsh in the granting of representation orders. So, to answer you question: yes, I think they do a good job. Q150 Dr Whitehead: In terms of putting that into the hands of solicitors, would not the same argument, in terms of keeping show on the road, also apply? Mr Morgan: There are several concerns there. First, the fact that it has remained consistent suggests the solicitors are pretty good at gauging when legal aid will be granted and when it will not be granted. They know when the interests of justice test will be made out and when it will not. Changes to some of the provisions have meant that certain parts of the criminal procedure now are not out of scope: it has meant that solicitors have no choice other than to submit a representation order on behalf of their client in the hope that a representation order is granted, because if it is not there is no funding at all and they have done the work for nothing. Q151 Dr Whitehead: You have picked the highest tax rate band as a cut off point for legal aid. That is a very specific point, one might argue, in terms of the likely case that people, as it were, paying the highest tax rate band would not be inconvenienced in terms of paying. What effect do you think the choice of that band would have on the anticipation the Department makes about its savings? Mr Morgan: Firstly, it might reduce any human rights applications, as were mentioned earlier on, for this reason: The figure of £25,000 was mentioned and it was also mentioned that that takes no account of the liabilities of the defendant. The fact that somebody is a higher income tax payer suggests of itself that they are reasonably well off - certainly they are not in the poverty strand - so it is as good a figure as any, to be frank. It does take account of some allowances that have been made for the liabilities, shall we say, of the defendant and perhaps is a fairer mark than just an arbitrary figure. I am not sure if that answers your question. Q152 Dr Whitehead: It certainly makes the case in terms of, as it were, a reasoned figure rather than an arbitrary figure. I am trying to work out in my mind the way that would affect proposed departmental savings. I imagine it would potentially decrease those departmental savings. Mr Morgan: I would like to see the figures. I do not know. Certainly it would take out of scope, or it would take out of uncontributed scope, I suppose, quite a number of defendants, but again I think I would have to see the evidence of it. From a human rights' point of view, I suppose, it seems a fairer figure because it does take some account. Personally, I would not like to have any figure; let's have some sort of sliding scale in some shape or form, but, if there is a figure that takes people out of scope, that is probably as good as any. Without doing some research, I cannot say a figure. Q153 Mr Soley: Both you and the preceding witnesses take the view that the real cost drivers are external to what you can do about it. Mr Morgan: Yes. Q154 Mr Soley: I am not clear about whether you think the increased imprint of the law is inevitably going to drive up costs and we have to learn to live with it, or whether you are saying a lot of these things are unnecessary, should not be done, and that way you could keep your costs down. Mr Morgan: If any initiative is going to increase the numbers of defendants that appear before the courts, where they meet the interests of justice test, it will inevitably increase the requirement for representation and the requirement for representation orders, hence the costs will inevitably go up. But, as has previously been mentioned, as you rightly say, that initiative should bear in mind the cost consequences to the Legal Aid Fund. Q155 Mr Soley: You think, generally speaking, that it is necessarily desirable. Mr Morgan: No, it is desirable to put another 20 million people, or however many the figure may be - perhaps it is 200,000, I do not know - before the courts and it is right they should be before the courts, then it is right they should be before the courts, but it is also right they should be represented if they meet the interests of justice test. Q156 Peter Bottomley: Your written response to our inquiry is very useful. Mr Morgan: Thank you. Q157 Peter Bottomley: You have suggested that there are eight questions which the Department or the Government ought to answer to try to give some justification to their proposed approach. Leave that on one side, what do you think ought to happen? Leave aside the Government's proposals, would you do nothing or make suggestions of change, either personally or on behalf of your organisation? Mr Morgan: I think change has to happen. There are various options and various permutations. They are being looked at in the civil field as well as the criminal field, with completely different methods of funding. GP-type contracts are being discussed and so on; the movement away from payment on an hourly basis is a consideration; the movement away from an item by item basis and being subject to audit and so on, of whether each of those items were appropriate. Movement away from that must be desirable. I think changes in the system can bring about far better efficiencies and I think those efficiencies should be rewarded. I can give you a whole host of examples if you like. I will give you one simple one, perhaps, of crown court proceedings at the moment. If I were in court this morning and I have a client who is committed to the crown court, as a solicitor-advocate I could walk into the crown court tomorrow and conduct the PDH hearing, the first hearing at the crown court. If it is a guilty plea, I could then conduct the sentencing exercise. But to go for that PDH hearing, I would receive the grand sum of either £45 or £91 (whichever it is) and I could be in court all day fro that princely sum of £45. Instead, what can I do? I can instruct counsel. I will spend two or three hours conducting a good brief to counsel, I hope; then there will be a conference between me and counsel or the client and counsel or both; there will be a conference at court and I will attend the court with counsel. The costs will be ten-fold. To incentivise me to go and do the hearing in the first place must be an efficient saving. To treble or quadruple that fee would create a real saving to the firm. To incentivise solicitor-advocates to look at every plea and directions hearing would be a good way. I could give you lots more examples if you like. Q158 Peter Bottomley: Perhaps you would give us a note with some of them. Does the Department consult with your group on how to get more effective economic justice? Mr Morgan: It does, but it does not just give us a blank piece of paper, as you might suggest, and say, "What would you do?" - because we would like to complete that blank piece of paper. Yes, they do, is the answer to your question. We are involved in the process, we are discussing it both with the Department and with LSC. We work together and hopefully in some cases are ideas are taken on board and our views are taken on board. Q159 Mr Soley: Thank you very much. Mr Morgan: Would it be too cheeky if I made one point that I hope will take no more than 30 seconds? There was comment made about very high cost cases earlier on. I totally endorse the views that were taken: Saving one high cost case would save far more than any of these proposals. But I think one needs to look at the way in which those cases are prosecuted. The various prosecuting authorities - and this is not just the CPS - look for the multi-handed conspiracies, the ten/15 handed conspiracies. They want the big hit, the big win. Their success rate is not good. It involves very, very lengthy investigations, masses of documentation, late disclosure, increased costs. If that was looked at, that would create tens, if not hundreds of millions of pounds of savings on what becomes part of the Legal Aid Fund. Q160 Mr Soley: That does echo what was said to us before. Do you think it is a general view of the legal profession? Mr Morgan: Absolutely. Surely those who are on the serious fraud panel would know that. Thank you very much. Witnesses: Stephen Irwin QC, Chairman, and Andrew Hall QC, Chairman, Remuneration Committee, Bar Council, examined.
Mr Soley: Good morning. Thank you very much for your attendance here this morning. Q161 Keith Vaz: Mr Hall, Mr Irwin, how, if at all, do you envisage that these proposals will impact upon the Bar? Mr Irwin: It is difficult to predict until you know exactly what form of means testing comes along. I do not think they will have a particular differential effect on the Bar. If the interest of justice test is applied rigorously by whomever, it is likely to knock out cases at the bottom end of the range of seriousness rather than the top and so that probably will not affect the Bar very much. If on the other hand we get a position where solicitors are operating a means test and are taking the hit if contributions are not made - so that you have a series of failures because of the means test - then that obviously would affect the Bar. It might mean that the Bar has to drop out of cases or people have to act free. I do not think there is a particular differential effect on the Bar of the means testing provisions other than that. Q162 Keith Vaz: Do you agree with that, Mr Hall? Mr Hall: Yes, I do. I think if the proposal that advocates are penalised if contributions are not paid is to put into effect then it is going to be extraordinarily difficult to find any advocates to appear in those circumstances, because, as we indicated in our short paper, it is one thing to apply that sort of provision if you have some mechanism for controlling what the client does and how the process operates, but if you have no mechanism, if you are just the person asked overnight to go and represent someone in a back of a beyond magistrates' court, it is wholly unreasonable and quite wrong to impose a financial effect by virtue of someone else's default, and I think the junior Bar would run away furiously from taking the risk in those cases. Q163 Keith Vaz: The means test currently proposed would, in some circumstances, apply in the Crown Court as well as the magistrates' court. Should the proposal to reintroduce the means testing be restricted to legal representation in the magistrates' court only? If so, why? Mr Hall: I think the basic principle the Bar supports is that those who can afford to pay should pay. There seems to be a reasonably effective mechanism in the crown court for the more serious cases for financial orders to be made at the conclusion of the proceedings. It is much more difficult in the magistrates' court where the volume is much greater and just the mechanics of requiring evicted people to pay contributions towards costs is much more complicated. My view, instinctively, is that it is better in the lower courts, with the greater volume of cases, to have the payment, as it were, in front rather than following on behind, whereas one can have a follow-on-behind system in the crown court with the larger cases. It seems to work reasonably well and I am inclined to approach these things on the basis that if it is working reasonably well one ought not to interfere with it. Mr Irwin: Could I respond by making a slightly different point, which is that it would be rational, if introducing a means test, to have a bottom-end cut off. It is not really our business, but there is not much point spending quite a lot of money investigating means in a case where the actual quantum of fees is very small. I think somebody ought to draw a guideline at the bottom end to say, "Below this anticipated cost, we will not bother with the means testing system because on average you will spend more money on the process than you would get back in the contributions." I think that makes commonsense. Q164 Peter Bottomley: Therefore not charge. Mr Irwin: Therefore not charge - well, not attempt to get means testing or contribution or whatever because it is pointless. Q165 Ross Cranston: I was going to ask you about the effect on courts of the increasing number of unrepresented defendants, but in fact we got your submission this morning and you address that point, that often you are creating more costs by not having representation in terms of the way the court operates. I do not know if you want to say any more about that. Mr Irwin: Just to emphasise it. We have seen it again and again in the public funding of legal aid that you only look at this little segment of the budget. Before we make any changes we should be looking at Group 4, the prisons, the Home Office, the probation service, the cost of adjournments - all of it together. I think that if you do the accounting exercise you will find that representation pays for itself far more often than you think, but you have to get beyond the legal aid budget to see that usually. Only the Treasury can do that job. Q166 Ross Cranston: Our acting Chairman asked some of the previous witnesses about the Human Rights Act possibilities. I do not know if you have any thoughts on that, whether you see these proposals as being subject to challenges. Mr Hall: I think one can see the areas in which challenges are likely to arise. For example, in multi-handed cases, if three defendants go to one solicitor who awards legal aid and another three go to another who does not consider that the test is passed, you have inconsistency in the award, and if there is any cut-throating in that case people are going to raise the level playing field issue and say that they are not being given a fair hearing. It is one thing for a court to be seized of this essentially judicial task of deciding what is in the interests of justice; it is quite another thing to delegate that responsibility either to an executive agency, which might apply the tests with financial considerations driving that decision, or to groups of independent practitioners who may be influenced by all sorts of considerations, not least commercial considerations. Q167 Ross Cranston: I think I accept the argument but I am not sure I go as far as you do in your written submission to say it is a constitutional point, a Legal Services Commission point. I certainly accept the thrust of what you say. Somebody else is going to ask you about the drivers of high cost case, but you mention in your written submission the Effective Trial Management Project process and you say that you hope that will address some of the issues. It really follows on from the point I put to the Law Society and the solicitors about the proposals coming from judges about greater case management and whether that can have any effect on cost. Mr Hall: We think it is a complicated issue. We believe that some of the major drivers are those which are affecting trial length in the more complicated cases. Q168 Ross Cranston: Could I ask you about the case management side. Do you think that that can have a significant effect on reducing cost? Mr Hall: It has to be considered. Some of the cost increase may be lawyer-driven, some may be process-driven and we are concerned to look at every possibility for reducing cost including tighter control of cases by the judges. Mr Irwin: You know we have initiated this process with the bench. The results have not yet been published but in due course will be, I hope - a whole series of proposals on Chatham House rules to see what will really work. Because we have a common interest: the one thing everybody wants to do is to reduce trial length if possible because we will get paid more realistically if we can shorten the trials. It is a tool but I think all those who were engaged in the process emphasised it is far from being a single magic bullet. Trial management can sometimes go wrong, it can sometimes create problems but mostly it will help. Q169 Ross Cranston: I think it would be quite useful if we could be kept informed about the process. Mr Irwin: Yes. Q170 Mr Soley: Before we move on, may I ask Mr Hall, if, to minimise the dangers of a Human Rights' challenge, you would presumably accept that an appeal to either a court or a tribunal would reduce that danger. Mr Hall: Yes, I do. Q171 Mr Clappison: You mentioned one or two things about what you see as the drivers of cost. We have heard evidence from the Law Society and solicitors earlier on how they see things from their perspective. I notice that in fact you are a former solicitor yourself as well. Do you have anything further to add to what you see as the position you are in today, as to what are the significant drivers of cost? Mr Hall: No. We entirely agree with the submissions which were made earlier by the Law Society. We only add this: there is much talk about the top 1% of cases, the top 1,000 cases, absorbing half the budget. If you take the top 1% and then slice that 1% up, you will find that the top half dozen cases - the top half dozen - account for about 25% of the criminal legal aid budget. That is where the concern ought to be directed. Those cases which are now visible in the Legal Services Commission data which we have now seen, do reinforce the sort of points which were made earlier about half a dozen or ten major frauds or cases of that sort completely distorting the funding picture for any one year. In terms of long-term control over finances, you can work on a number of fronts to drive down costs, but you only need to get a couple more cases prosecuted in anyone year and there is no way of telling whether you have succeeded because the global costs wills imply go up, the unit cost will go through the roof, and we will all think that we have failed dramatically, and it will simply have been a charging decision, completely out of our control. Mr Irwin: It is 0.01 of the cases equals 25% of the cost in the crown court. Q172 Peter Bottomley: One in one thousand. Mr Irwin: No, one in 10,000. Mr Hall: One in 100,000. Q173 Mr Clappison: We are talking about the budget for crown court legal aid there. Mr Irwin: Yes. Q174 Mr Clappison: Looking at it globally, the legal aid budget as a whole but excluding asylum, the figures we have been supplied with suggest that the top 1% of criminal cases account for 16% of the total legal aid budget. That is the whole of the legal aid system except for asylum. That is also a growing figure. In the last two years, there has been a growth of £18 million and it is a growing proportion within the overall total. Mr Irwin: Two or three things on that. You have to be careful with these figures all the time. I have seen the Law Society's table - I do not know whether that is what you are looking at - where the proportion of the top crown court cases is shown as rising from 50.6% to 57.4% of the crown court budget, but all these figures leave out the fact that civil proceedings have diminished within legal aid. If you treat it as a proportion, it is not only a growth in crime and a growth in top crime, all personal injury has come out over the same period, clinical negligence has diminished greatly because of the rationalisation and narrowing, so the proportions do not always tell you very much. The absolute growth also does not tell you as easily what you might want to know because during the relevant period we have gone from entirely ex post facto payment, payment after the event, to a position where some of these big cases have been paid before they begin in a long way, so you are having a cashflow clump come into it, the older cases paid two years late and the newer cases paid before they begin or as you go along, so even in terms of the raw growth it is probably overstated. However, we all agree the underlying pattern which is that cases have got longer because of the Human Rights Act, the PII applications, disclosure, all sorts of causes like that, and we suggest, all of us, that that is the sensible explanation and charging patterns, but until somebody actually does the proper measure and gets beneath the skin of this, we will not know properly where it lies. Q175 Mr Clappison: The figures I was quoting to you were for the year 2001/02 to the year 2003/04 and, as I said, it was for the whole of the legal aid budget which showed a growth of £80 million. I have not got the figures going back any earlier than that to see if there was any distortion caused by the time in which payments were made, but perhaps that could be obtained for the Committee. Could I ask you about one other factor which I have to ask you about and which you did not mention in that list of factors which may explain the increase in the cost of the top 100 per cent. What about the fees which are paid to QCs? Mr Irwin: Everybody focuses on this because of front pages and headlines. There is no evidence that the fees paid to barristers, including QCs, has risen in real terms over that time. Until the cost drivers are stripped out, I do not accept that. For most of that time you had exactly the same discipline, the level of fees paid to barristers in these big cases with increasing discipline as the contracting regime has bitten in. Even if there has been some growth in those fees, it is a matter of history now because as of last week we are into, as you probably know, the extension of graduated fees up to 40 days, we are into contracting for all of the biggest cases, including the top 0.01 per cent, whatever that is, one in 10,000 or one in whatever, so if that factor is there, and it is unproven, it will not be there for the future because we have got control of that. Q176 Mr Soley: When you used the term "front page", you recognise in effect that there is public concern, even if some of it is exaggerated in some of the newspapers. Do you feel that it is wholly unfair, wholly unreasonable? Mr Irwin: Mr Soley, if I am not fed up with our own stereotype by now, I certainly will be by the end of this year. It is a stereotype. Q177 Mr Soley: But some stereotypes are based on some realities. Mr Irwin: Yes, and many are not. In this instance I do not know until I see all the figures whether there are some people who have earned more than anybody would expect, but I do know that when I have in the past seen lists of the ten top earners, if you strip away what those ten top people in the country in a year have earned, you find that they have got two or three years' income clumped into one year. You have to remember that these figures are the turnover of a business, not the income of a person, and in the end when you break it down, I have not yet found a situation where somebody in the criminal field is earning more than you would expect a top medical consultant to earn or a permanent secretary or whatever; you are in that sort of same group. Mr Hall: We have been through this exercise in the Fundamental Legal Aid Review where the whole comparative exercise with other people in the public funding sector, particularly hospital consultants, has been gone through in minute detail and where we have gone through that exercise, including in that venue, the figures for criminal barristers and other publicly funded barristers at a senior level come out at broadly the same as a medical consultant in the National Health Service. We do not think that is an unreasonable position. Of course if you ignore the overheads of barristers, if you leave the VAT in and you choose those barristers who for one reason or another have got two or three years' turnover received in one year because government pay is so slow, then you can make those silly "Fat Cat" headlines that we earn in the Bar quite so much and mislead the public. Q178 Keith Vaz: Are you saying that QCs are not paid enough? Mr Irwin: No, I am not saying that at all. I am defending the QCs, because it is always the QCs who get the attack, against this stereotype that they are fat cats. I have got a collection of cartoons at home which relate QCs to fat cats time and time again. Q179 Keith Vaz: But you know a lot of QCs and there are no fat cats? Mr Irwin: There are some fat cats, those in the private Bar, but they are not paid by you. If you break down even the top ten earners in criminal and civil from public funds, you can explain why and I am not embarrassed by what they receive in the end. Three years ago the DCA, the LCD as it was, decided that they wanted to compare the top-earning silks with judges on the basis that the silks in front of the judges were paid far more but by the time they analysed the figures they had removed the comparison from the paper which they were making because the judges' package was better than what the silks were getting. 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 ten 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. |