Select Committee on Constitutional Affairs Written Evidence


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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