Evidence submitted by Simon Hutchence
(LAR 56)
I am one of two solicitors practising in our
firm. We have both been qualified for several years as duty solicitors
for police station and Magistrates' Court work, as Solicitor Advocates
for Crown Court work, and as members of the Law Society's Children
Panel for Care Proceedings. We have one paralegal/clerk who has
successfully completed the second year of her Ilex examinations
and who hopes to commence accreditation for police station work
during 2007. Publicly funded work in crime and public law children
proceedings comprises approximately 95% of the firm's work.
Our office is in Highbridge, a small town in
Somerset within two miles of the M5 motorway. We work at courts
and police stations in Taunton, Bridgwater, Weston super Mare
and Bristol.
I believe that none of the proposed changes
should be made without a further period of consultation extended
to April 2007 at the earliest. I note that Lord Carter delivered
his own report several months late and substantially over budget.
Consultation should consider the very significant savings which
can be made by improving the efficiency of the police, Crown Prosecution
Service and Court Service and the inevitable reduction in the
quality of service which would be provided under the current proposals.
I make the following observations:
POLICE STATION
1. The stated intention of reducing the
average cost per case by one third of the current average travel
and mileage cost is a reduction in payment which cannot be absorbed
by solicitors' firms without cutting wages. Wages cannot be cut
without cutting quality and service. The cost savings proposed
can be very easily made by improving the efficiency of the police.
The period of consultation should be extended to include consultation
on reducing costs by improving the efficiency of the police, and
by implementing a system of cost penalty to be paid by the police
in the event of failure to comply.
Proposals for saving costs under the current
system of remuneration, to be subject to consultation as proposed,
include the following:
— Service of written disclosure/case
summary to the legal representative immediately upon arrival at
the police station. A system of such disclosure has already been
implemented at the police station in Weston-Super-Mare, although
it is not always made promptly.
— A full PNC print should be disclosed
to the legal representative immediately upon arrival. This is
relevant to the interview given the recent bad character and dangerous
offenders legislation, it is relevant to the bail decision, and
it is information now required for the purpose of an application
for legal aid for representation at court.
— At the same time as disclosure of
the PNC print the officer in the case should be required to indicate
whether bail will be in issue in the event of charge. This will
allow instructions to be taken, and representations made, at an
early stage.
— A copy of the full custody record
should be disclosed to the legal representative immediately upon
arrival. This is already required reading under the Transaction
Criteria and is plainly relevant information for the best level
of service provision, not least in highlighting health and communication
issues.
— The officer in the case should be
provided by the custody officer with a direct number for contact
with the legal representative. There is all too often a lack of
communication between custody staff and the investigating/interviewing
officers leading to time spent waiting unnecessarily at the police
station.
— The officer is the case should be
required to notify the legal representative immediately upon any
change of interview plan eg to give the detainee a lie-down, or
to conduct a further search before interview. There are numerous
wasted attendances or lengthy delays waiting as a result of failure
to communicate with legal representatives. The police should be
required to pay the costs of such attendances or waiting time.
— The officer in the case should be
required to contact the legal representative in advance of every
bail-back to confirm whether or not it is to be effective, and
if so what action is intended. There remains a lack of communication
with custody staff and legal representatives resulting in a continuation
of wasted attendances. The police should be required to pay the
cost such attendances.
2. The proposed system of fixed fees is
flawed even without the one third travel and mileage cost cutting
proposed, and will inevitably lead to a reduction in the quality
of service to detainees. This cannot be monitored by a system
of peer review, and will not addressed or rectified by the "swings
and roundabout" principle. Vulnerable clients will be disadvantaged,
corners will be cut, the quality of representative will be reduced
as will the quality of solicitor entrants to the world of criminal
legal aid. I would ask the following to be considered:
— Not every case concludes at the end
of the first period of detention. Indeed with bail-backs for CPS
decision very few are concluded. It is not always possible for
the same representative to attend at each bail back. After several
weeks of thought and discussion I have yet to speak to anyone
who can properly suggest a system of fee payment in a police station
case in which (for example) a qualified duty solicitor spends
six hours at the police station on a Sunday morning, a first agent
attends the first bail-back for viper capture and selection, a
second agent attends for the viper witness viewing, a third agent
attends for the client bail-back and re-interview, and a fourth
agent attends for the further bail-back, re-interview, CPS direct
decision and bail representations. "Swings and roundabouts"
does not fit.
— Under the proposed fixed fee system
it is inevitable that certain of the attendances referred to in
our example will not be attended. Peer review will not be able
to assess the appropriateness of such a decision.
— Corners will be cut, and attendances
will be cut short, in order to maximise the fixed fee. This risk
is heightened where attendance is during unsocial hours at a weekend.
Peer review will not be able to assess this.
— No account is taken of the complexity
or seriousness of a case.
— No account is taken of the extended
time taken to travel from a home address during unsocial hours.
— How will peer review assess the appropriateness
of a decision to depart before a bail decision is made?
— How will peer review assess the appropriateness
of a decision not to attend at the time of charge?
— How will peer review assess the appropriateness
of a decision not to attend at the time of viper capture or selection?
— How will peer review assess the appropriateness
of a decision not to attend at a viper witness viewing?
— How will peer review assess whether
sufficient time was spent, and questions asked, in obtaining disclosure?
— How will peer review assess whether
sufficient time was spent, and questions asked, in taking instructions
from the client?
— How will peer review assess whether
a decision to exercise the right of silence was affected by an
understandable desire to leave the police station because it is
4 o'clock on a Sunday morning and the fee has been used up.
— How will peer review assess whether
a decision is taken to proceed with an interview without adequate
disclosure of previous convictions which are relevant to issues
of bad character, dangerous offender provisions etc.?
3. The proposed system of fixed fees will
be open to abuse by the police. The police will be aware of, and
it would be naive to suggest that some officers will not exploit,
the time constraints imposed by the fixed fee system and a representative's
desire not to be doing unpaid work at unsocial hours. Or at any
hour. Deliberate delay and obstruction by officers will raise
issues referred to above.
4. The proposals to allocate rota slots
to firms rather than qualified duty solicitors, and to allow all
cases to be dealt with by probationary representatives, will reduce
the quality of service. The current system of allocation to qualified
and experienced duty solicitors should be maintained. There has
been a recognition of quality and qualification in the system
to date, including a lengthy and expensive process of accreditation.
The proposals plainly suggest that this has been a waste of time
and money. We do not believe that it has. It has been implemented
for a purpose, and together with the system of supervision is
the best system of quality assurance. The system of paper file
peer review cannot properly address this.
5. A system of enhanced payment for representation
by a Duty Solicitor in person for certain serious offences was
only recently implemented. The system proposed plainly suggests
this was unjustified and a waste of money. I do not agree. The
proposals will reduce the quality of service.
6. It is at best naive, and at worst dishonest,
to suggest that a system of paper file peer review will provide
an effective system of monitoring and quality assurance any more
than it could assure the quality of open-heart surgery. It can
do nothing more than assure a minimal level of competence and
recording. The only way of assuring quality is to pay for quality.
Qualification as a solicitor, qualification as a duty solicitor
with experience both at the police station and in advocacy at
court. The current system of allocation, accreditation and supervision
is the best assurance of quality.
7. If the cost cutting proposed is to take
place in spite of consultation there is a simple way to do it
without compromising the quality of service. Cut the travel and
mileage rates by one third. It achieves precisely the same objective.
As referred to above, however, I do not agree that it is appropriate
to impose pay cuts when the costs involved can so easily be saved
by implementing procedures to improve the efficiency of the police.
MAGISTRATES' COURT
8. The only change which should be made
at present is an increase in current standard fees. Fees have
not risen either in line with inflation or after recent legislation
increasing the amount of work required of defence solicitors eg
bad character provisions.
9. Consideration should be given to the
clear discrepancy in what are considered to be reasonable hourly
rates of pay when paid from central funds and what are plainly
unreasonable rates of pay at current legal aid rates. On 1 July
2005 Her Majesty's Court Service published a document confirming
central funds costs taken from The Guide to the Summary Assessment
of Costs from the Supreme Court Costs office. The hourly rate
set for a partner or senior solicitor in our own area is £150.
The hourly rate set for an assistant solicitor is £135. The
costs for travel and waiting are set at 2/3 of these rates. I
would very much like to hear your justification of how legal aid
rates payable at the Magistrates' Court can be considered reasonable.
Payment comes from the taxpayer in either situation.
10. Consultation should proceed on proposals
to improve the efficiency of other agencies before criminal defence
solicitors are yet again penalised for matters beyond their control.
Proposals for consultation in reducing costs
by improving the efficiency of the Crown Prosecution Service include:
— In cases where an offence has not
been admitted by the detainee in interview, or where the detainee
has put forward a significantly different version of events, the
CPS should serve at the first court hearing a copy of the interview
tape, a copy of any relevant CCTV footage, a copy of any relevant
documentary exhibits, and a legible copy of all witness statements.
The prosecuting authority (whether police or CPS) should be required
to pay the cost of all time wasted waiting for this information,
or any adjournment required to obtain this information. The prosecuting
authority should be required to pay the costs of any subsequent
hearing at which this information is not available.
— The prosecuting authority should
be required to pay the costs of any hearing which is adjourned
further to their failure to comply with a court direction.
— The prosecuting authority should
be required to pay the costs of any hearing which is adjourned
or delayed as a result of their failure to bring their file.
Proposals for consultation in reducing costs
by improving the efficiency of the Court Service include:
— The court should be required to pay
the costs of any hearing, or the delay of any hearing, where the
court does not have its file available for the listed hearing.
— The court should be required to pay
the costs where a hearing is adjourned without notice because
no court clerk is available.
— Ditto where one or more of the Magistrates
have gone to the wrong court.
— Ditto where the court has listed
hearings on days when the court is in fact closed.
— Ditto where the court has committed
a case to the Crown Court on a day when the Crown Court is closed.
— Ditto where the court has failed
to obtain a production order for a prisoner for a listed hearing.
— Ditto where the court has failed
to notify the police, CPS, YOT, or the defence that the court
will be closed for the production of prisoners.
— Ditto where the court lists an application
to be made by the court service to vacate a trial date because
the court will be closed on one of the days of trial.
Please note that these are not fanciful, or
even rare, scenarios. They are all recent situations resulting
in increased defence costs without any apparent penalty to, and
certainly without any apology from, the court service.
CARE PROCEEDINGS
11. The proposals for a system of fixed
fees in care proceedings are unfair, unworkable, and can only
be to the detriment of publicly funded parties themselves. The
"costs neutral" basis of calculation is fundamentally
flawed, taking no account of multiple public funding certificates
awarded to a solicitor acting for a number of children in a case,
no account of the complexity of a case, no account of the level
of expertise and training involved in qualification for the Children
Panel, and a wholly unjustified distinction between remuneration
available to solicitors and barristers.
CONCLUSION
12. None of the proposed changes should
be implemented. There should be a further period of consultation
until April 2007 at the earliest. Such consultation should consider
the savings in costs which can be made elsewhere and the reduction
in the quality of service the proposals would introduce in their
current form.
Lord Carter's report appears to be concerned
to maintain the profitability of firms of solicitors. He is right
in saying that profitability can be increased by the employment
of lower paid and less qualified staff in larger firms but this
will inevitably reduce the quality of service given to clients
and it is wrong to suggest that the system of peer review can
prevent that. The Government does of course have a vested interest
in maintaining the profitability of firms of solicitors. Without
it there would be nothing to squeeze in the future.
The Government continues to claim that the English
system of legal aid and justice is the envy of the world. It is
a cause for real sadness that such claims are already being met
with such widespread derision. Matters would only get worse under
the current proposals.
October 2006
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