Evidence submitted by Gordon Hotson (LAR
18)
1. My name is Gordon Hotson. I am a Solicitor
in private practice based in Swindon, Wiltshire. I am a Duty Solicitor
on the Swindon Court and Police Station schemes. I was admitted
as a Solicitor in 1992 and have worked predominantly in the field
of Litigation. Since 1996, I have increasingly specialised in
criminal defence work and have practiced exclusively in this field
of work since 2000.
2. I am the partner in charge of the criminal
litigation department of a 13 partner general practice with offices
in Chippenham, Marlborough and Swindon. My department has criminal
defence contracts at the Chippenham and Swindon branches. The
department comprises three duty Solicitors, two paralegals and
three part-time secretarial staff.
3. My partners have decided that, despite
my team generating a fee income in excess of £500,000 in
the last financial year, the changes being proposed by the Legal
Services Commission (LSC) are likely to have such a negative impact
on the profitability of the department, that there is no future
within the firm for criminal defence work and, from a date to
be decided, the department will be closed. All members of staff
will lose their jobs, including myself.
4. The LSC's proposals for changes to the
way in which Police Station, Magistrates' Court and Crown Court
work is remunerated are unrealistic and many firms, especially
in rural areas, will find it impossible to operate profitably.
General Practices are likely to withdraw from the work and smaller
firms, and sole practitioners may have no option but to cease
trading.
5. Wiltshire is a County that is likely
to be affected badly by the changes. There are four Court centres,
in Swindon, Chippenham, Devizes and Salisbury. There are three
main Police Custody suites, Swindon, Melksham and Salisbury. These
serve a county of 3,485 square kilometres and a population in
excess of 630,000.
6. There are a number of Solicitors practices
in Swindon, comprising a mixture of specialist firms and branches
of larger general practices. In addition to my own practice there
is one other firm that will almost certainly give up criminal
defence work, as the Sole Principal has given notice of his intention
to retire rather than try to continue under the new payment regime.
The closure of two firms will leave four others, three specialists
and one general practice.
7. All offices are based within walking
distance of the Court and a short drive from the Police Station.
The removal of payments for travelling cases will affect Swindon
Solicitors less than those based elsewhere in the County, although
I cannot comment on the impact of the proposals on Salisbury Solicitors.
8. The removal of payments for travelling
will have a more significant effect on Solicitors based in North
and West Wiltshire. The Court serving these areas is at Chippenham,
following the closure of other small Courts in recent years.
9. In recent years the number of firms doing
criminal defence work in North and West Wiltshire has diminished.
West Wiltshire has one large general practice based in Melksham,
near the Police custody suite and three ageing sole practitioners.
Of these, one is already winding up his criminal defence work
and the other two are very likely to follow. This will leave a
substantial proportion of West Wiltshire without any firms doing
criminal work.
10. North Wiltshire has three firms currently
doing defence work, all based in Chippenham. My department will
close prior to April 2007. Another firm has one semi-retired Solicitor
only and it seems unlikely that he will continue after April 2007,
which leaves only one firm for the whole of the North Wiltshire
area. That firm and that mentioned above based in Melksham will
be the only firms left covering the Magistrates' Court in Chippenham
and the Police custody suite at Melksham.
11. The Kennet District Council area, which
has a Court at Devizes, has no firms that do criminal defence
work and all defence services at the Devizes Magistrates' Court
are provided by Solicitors from North and West Wiltshire and Salisbury.
12. Wiltshire, outside of Swindon and Salisbury
will become an "advice desert" as firms will close and
no others will take their place.
13. The change from payments for Police
Station work on an hourly rate basis to a fixed fee basis will
result in a significant cut in payments to criminal defence firms,
in addition to the reductions that will be caused by the removal
of payments for travelling and waiting. Such changes will impact
on all firms, even those based close to the Police Stations they
serve. I have carried out an analysis of claims submitted by my
firm and for one office we will be paid, on average £31.96
less for each Police Station matter and for the other office,
£12.95 less per claim.
14. I have also analysed a number of claims
for large cases, not included in the above calculation. For four
murder cases we have dealt with in the last two years, we would
be paid an average of £660.45 less per case (the losses varying
between £354.65 in one case and £1,101.10 in another).
Losses of that magnitude are totally unsustainable by any firm
and I cannot accept that any efficiency improvements can make
up for that loss of revenue.
15. I accept that the proposals include
a mechanism to escape from fixed fees in the most time-consuming
cases. For Wiltshire, the escape point is set at 16 hours. The
consequence of this is that, for a case that takes 15 hours (not
including travelling and waiting time) the firm would be paid
at the rate of approximately £11 per hour. Only two of the
four Murder cases mentioned above included attendance times in
excess of 16 hours. These provisions do not take into account
repeated attendances for identification procedures, ineffective
bail-backs due to failure of the Police to obtain CPS advice etc.
£11 per hour is an outrageously low amount to pay a Professional
person, carrying out a job upon which the liberty of the individual
may depend.
16. In addition to the removal of payments
for travelling in Police Station and Magistrates' Court cases,
it is proposed that defence Solicitors should not be paid for
waiting at the Police Station or at Court. Waiting is something
over which the Solicitor has no control.
17. At Court there are problems caused by
overlisting, custody cases taking priority, complex matters being
put in general business lists and, from 2 October 2006, there
will be problems and delays caused by an increase in the number
of unrepresented defendants due to the reintroduction of means
testing for Representation Order applications.
18. This latter measure on its own will
impact hugely on the level of fee income a firm can achieve and
the Government's assumption that any defendant who is refused
Legal Aid on the basis of the means test will be able to afford
to pay for representation is unrealistic in the extreme.
19. The Court system is going to become
clogged up with unrepresented Defendants trying to cope with the
complexities of the criminal justice system with only limited
assistance from the Court's Legal Advisors. This will cause delay
at Court, taking up more Court time per case than if the same
Defendant was professionally represented.
20. In the Police Station, Solicitors who
are told to attend at a certain time for interview are frequently
required to wait even when they arrive at the allotted time. Further
delay is caused by officers having to obtain advice from CPS Direct
or the duty prosecutor prior to any decision being made as to
disposal of a case. A Solicitor, in that situation, has a choice
if there is no other case that they can immediately go on to deal
with: he can leave the Police Station and return home or to the
office, knowing that he may have to return to deal with any further
interview that the officer may be advised to conduct (travelling
unpaid of course), or wait to see what happens. Officers seldom
provide accurate (or indeed, any) information as to what they
are going to do following an interview.
21. Again, it is unrealistic to assume that
there will be any increased cooperation between Police Officers
and defence lawyers. At a Police Station there is very much a
"them and us" culture, with the Police treating defence
lawyers with much the same contempt as the detainees. We are made
to feel as if we are uninvited intruders in their domain. Some
officers treat defence representatives with outright, undisguised
hostility.
22. The proposals regarding Crown Court
cases may, I concede, be the best way forward but any graduated
fee payment structure must accurately reflect the amount of work
that genuinely needs to be done on a case and must not incentivise
inappropriate guilty pleas by front-loading the fees, thereby
paying proportionately less for cases that proceed to trial. If
there is any financial incentive to firms to get cases concluded
quickly, there is a real risk that cases involving complex and
technical defences will not be conducted as diligently as they
deserve to be and, as a result, innocent people may well be convicted
unnecessarily.
23. I consider also that the proposal to
remove cases that may become Very High Cost Cases and give them
only to a small panel of firms is unreasonable as it further erodes
a client's choice of Solicitor. Additionally, in Wiltshire, the
nearest firms on the panel are likely to be in Bristol. For a
bailed Defendant on benefits that is too far for them to travel
to be able to keep in regular contact with their lawyer. It is
unlikely that the Solicitors would be paid to visit the Defendant
at home. Preparation in such cases, which will inevitably be at
the top end of the range of seriousness, may be hampered.
24. There are also potential employment
law consequences for firms if the Police Station fixed fee proposals
are introduced.
25. Many young (and some not-so-young) employed
Solicitors and Accredited Police Station Representatives are willing
to go out in the middle of the night to represent detainees at
Police Stations because they are paid overtime for it. It is a
small compensation for the fact that criminal defence practitioners
are rarely paid anything like as much as colleagues that work
in other fields of law. Most will have a clause in their contract
that provides for them to be paid 50% of out-of-hours profit costs.
26. When payments are calculated on an hourly
rate basis, it is easy for an employer to work out what overtime
is due to be paid. If Police Station work is to be remunerated
by a fixed fee scheme, providing one payment for each case regardless
of whether it takes 30 minutes or 15 hours, one visit to the Police
Station or 10, it will be impossible for employers to calculate
the amount due to an employee for an attendance during the night.
27. If an employer honours the terms of
existing employment contract and continues to pay an hourly rate,
it is quite likely that, in many cases, it will be the employer
that will be out of pocket, potentially paying staff more than
the fixed fee for the case. As can be seen above, the firm will
already be suffering significant financial losses making the work
unprofitable, without having to pay out in overtime more that
the firm is paid for the whole case.
28. The only option would seem to be for
employers to try and negotiate a variation to all contracts to
provide for out-of-hours overtime in some other way. It is likely
that employees would have to be asked to accept a cut in their
remuneration.
29. Some employees might accept, understanding
that it is the only way for them to continue in their employment.
Others, however, might take a more rigid approach and refuse,
leaving the employer with the unenviable choice of either (a)
forcing the pay cut, which may be contrary to employment legislation,
(b) making the staff member redundant, and employ replacement
staff on contracts with no overtime clause (if such staff could
indeed be found), (c) accepting that he will have to do the work
at a loss, or (d) withdraw from criminal defence work.
30. It is likely that an industrial tribunal
would consider option (b) to be an unfair dismissal as sacking
people and replacing them with cheaper employees doing effectively
the same job is not a true redundancy. It is utterly unreasonable
for employers should be placed in this situation by the Government.
31. Faced with the choice, many firms will
choose option (d), leaving staff (and maybe even themselves) unemployed
and, if they are specialists, perhaps even unemployable without
retraining.
32. I feel that this may have a substantial
impact on the clients of BME firms, based in deprived areas, where
access to advice from within a particular community is important.
If these firms fail, there will be a significant impact on clients
with special linguistic or cultural needs.
33. The longer-term aim of the "Carter"
proposals is to move to a system of price competitive tendering
for criminal legal aid work. I am not confident that this system
will work for a number of reasons.
34. Firstly, the first sets of changes being
brought in will reduce the number of suppliers to a level, which
will barely be enough to enable the criminal justice system to
operate in some areas. As can be seen above, in rural Wiltshire,
this could be as few as two firms covering North and West Wiltshire
and Kennet, perhaps less if one of those firms decides that it
cannot carry on. The LSC would then be left with a monopoly supplier
in the area. That is not good for Justice and if there is simply
no competition, it is not good for cost efficiency either as the
one remaining firm will simply be able to name its' price and
the LSC may then have little option but to pay it.
35. Price competition is inappropriate also
in a field of commerce over which the suppliers have virtually
no control, namely criminal defence. This Government has brought
into force a huge amount of new legislation since 1997, and has
made Court procedures far more complex, with the introduction
of bad character evidence, special measures etc. Suppliers would
have no certainty about the future challenges they would be required
to face and they will find it extremely difficult to fix an appropriate
price, which will doubtless remain fixed for the duration of any
contract entered into between the suppliers and the Government,
regardless of changes in the law.
36. Competitive tendering has not been a
success when tried elsewhere and in the field of criminal defence
work, it is even less appropriate. Legislators must not lose sight
of the fact that the end users of the service face losing their
freedom, livelihood and possibly their family if the system fails
them.
37. The ill-thought-out means-testing proposals
will mean a significant reduction in the number of Representation
Orders that are granted and most of those who are refused Orders
will not simply be able to pay a Solicitor privately as the Government
imagines. The bar is set so low that the cut off point for a single
person without children is below the median annual earnings for
full-time employees of £22,900 in the 2004-05 tax year (Source:
National Statistics Online). The median is the value below which
50% of employees fall. I would ask the Committee urgently to consider
the new means-testing system being introduced on 2 October 2006
as well as the "Carter" proposals.
38. In conclusion I would say that the changes
being faced currently by criminal defence practitioners are the
most devastating for many years, if not the worst ever. It is
not overstating the case to say that many criminal defence specialists
are facing ruin and members of the public, faced with criminal
charges, will be detrimentally affected as a result as they will,
in many areas of the Country, struggle to find a Solicitor to
represent them.
39. Once Solicitors withdraw from criminal
defence work, it is unlikely that they will return. Young Solicitors
will increasingly choose not to specialise in the field of criminal
law. The age profile of defence practitioners is older than average
and as those that are left retire, there will be no one to take
their place.
40. This cannot be allowed to happen. The
Criminal Justice system cannot function properly without independent,
robust and fearless defence lawyers.
October 2006
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