Evidence submitted by Ian Kelcey, Kelcey
and Hall (LAR 112)
A FAIRER DEAL
FOR LEGAL
AID
Kelcey and Hall is a four partner firm based
in central Bristol, they are one of the largest firms in Bristol
and indeed the West Country in relation to carrying out legally
aided work in relation to criminal defence and child care work.
The firm employs in addition to the four partners,
two trainee solicitors, two accredited police station representatives,
two legal executives and 10 assistant solicitors. Kelcey and Hall
has been consistently regarded as one of the top firms in the
country in both the Chambers guide to the legal profession and
the Legal 500. We have a category one rating with the Legal Services
Commission in respect of both family law and criminal law.
1. In our submission the Carter Review on
legal aid has made a fundamental error and has failed to identify
the real reason for the increase in spend on the legal aid fund.
This has arisen because of the extremely high volume of criminal
justice legislation passed over the last ten years and an attempt
by Government to professionalise the criminal justice system to
such an extent that it has increased the complexity of criminal
cases as a result. We point to a few examples of this:
(a) The provisions in relation to bad character;
(b) The abolition of the right to silence;
(c) The provisions as to hearsay evidence
being admissible;
(d) Continuing change to the sentencing guidelines.
As a result cases are more complicated and have
a far greater need for lawyer involvement from the outset. The
same to an extent can be said in relation to family law particularly
child care work where the introduction of CAFCASS and the difficulty
at times in instructing guardians ad litem together with the changes
adopted by local authorities and the increased reliance on expert
evidence.
2. In relation to criminal law defence lawyers
have received no proper increase in rates of remuneration for
the past 14 years other than a small increase in 2001 during the
same period of time overheads in running practices for defence
lawyers have risen between 50 and 60%. In order to survive defence
lawyers have cut their overheads to the absolute bone and have
developed extremely efficient working practices as acknowledged
in Lord Carter's report (see the findings of Otterburn legal consultants
and PKF). The majority of defence practices as acknowledged in
the Carter report are also operating on the margins of profitability.
3. We are astonished that Lord Carter indicates
that the Criminal Defence Service must be seen to be effective
and that a process of best value tendering should be the objective
in order to prove to the Treasury that defence firms are efficient.
Lord Carter's own experts as referred to above have surely proved
that point but we would also ask the select committee to investigate
the whereabouts of the independent report into the Public Defender
Service carried out by Professors Ed Cape and Professor Richard
Moorehead at the request of the Legal Services Commission. That
report has strangely not yet been published having as we understand
it been completed some considerable time ago, we believe that
that report would show that even the Public Defender Service operates
at a far higher cost than private practice with there being no
evidence of increase of quality or service to clients by the Public
Defender Service. Analysis of the rates paid on an hourly basis
to criminal defence lawyers compared to the hourly rates of others
lawyers instructed by Government would demonstrate the value for
money that the Government derive from private practice carrying
out criminal defence work.
We would submit that it is crucial to all parties
involved in legal disputes be it crime, family law or any other
field of law that they should have access to good quality lawyers
to represent them particularly where the vast resources of state
or local authorities are amassed against them in relation to criminal
law, family law, housing law and immigration law, there should
be an equality of arms and it would be totally inappropriate for
those carrying out work on behalf of the Legal Services Commission
if they were forced to provide a lesser level of service with
less qualified lawyers carrying out the work against a background
of a business incentive to do as little work as possible when
operating under a fixed fee.
4. Lord Carter accepts that his proposals
would produce a cut in payment to lawyers and the proposals currently
put forward we have estimated on the effect our practice would
reduce the profitability of the work we carry out in crime by
approximately 20%. In relation to family law the proposals as
currently put forward based on our examination of figures over
the past two years would produce a loss in respect of child care
work of approximately 20%. In relation to ancillary relief costs
of approximately 80.89%. In relation to private law work we would
see a reduction of approximately 60% on our current level of profitability.
Against that background the profitability of the practice over
the last three years has moved from 16.9% down to 16.3% and the
current years profitability margin is expected to be in the region
of 14%.
It is therefore clear that these levels of reduction
would be unsustainable and would force us to cease doing any further
legal aid work. Far from providing a sustainable future it would
guarantee our having to close our legally aided practice.
The proposals put forward under the Carter Review
particularly in relation to criminal law are based on the fact
that firms could expect an increase in work ie Lord Carter would
expect criminal defence firms to do the work for lesser price
if they were doing a higher volume of work.
We regret to say that Lord Carter is misguided
in his assumption that there would be more work. Means testing
in legal aid for criminal law is being introduced firstly in relation
to the Magistrates Court work and in due course to Crown Court
work. On the Department of Constitutional Affairs own figures
it is expected that of those that would not be passported onto
legal aid and therefore would be subject to the means test over
46% would fail the means test. In addition to that there is an
increase in cases being diverted from the courts. There is an
extension of fixed penalty notices, cautions and conditional cautions
thereby ensuring that less work will in fact be subject to the
court process. Lord Carter's proposals are therefore put forward
on the basis of a false assumption.
5. Whilst no one can doubt the desire of
Government to seek value for money it must be patently obvious
to Government that they are currently receiving extremely good
value for money.
6. We are firmly of the view that at the
present time the country presently possesses a good quality criminal
defence service. It operates in a competitive environment, competition
for clients drives up quality, it is our view that the present
reform proposed by the Carter Review presents an unacceptable
and dangerous risk to that valuable resource with the effect that
the current market is so fragile that it is likely to disappear.
The proposals must be rethought if the country is to retain this
valuable resource which we would submit is an integral part of
our criminal justice system. No criminal justice system can operate
in a proper recognised fashion with integrity without a strong
criminal defence service. The same can be said of private practice
in relation to child care proceedings.
7. There has been a myth created mainly
in crime but also in other areas that solicitors who are paid
on an hourly basis take longer to do the job than if they were
paid a fixed fee. If there is a delay it is because of the increased
volume of cases and the inefficiency of other agencies within
the criminal justice system. The real cause of the increase in
spend is the greater volume of cases and the increased seriousness
and complexity of some of those cases passing through the system.
There has been a 19% increase in cases brought to justice nationally
between March 2002 and June 2005, see figures published at http//lcjb.cjsonline.gov.uk.
8. The number of cases passing through the
Crown Court has risen between 2001 to 2004 by over 15%, the number
of cases in the Magistrates Court has risen between 2001 and 2003
by 9.2%. Further evidence can be seen by the increase in prison
population from January 2001 to the present time of 63,400 to
80,000. We do not believe that the system of best value tendering
as suggested by Lord Carter will work, there is just not the fat
within the system to make further cuts. We would draw the Commission's
attention to the report carried out by Professors Cape and Moorehead
in which they lay to rest the myth that defence lawyers were responsible
for the increase in costs within the legal aid system. This piece
of research was in fact commissioned by the Legal Services Commission
itself and yet appears to have in the main been ignored by Lord
Carter. Professors Cape and Moorehead are distinguished legal
academics, they understand the complexities inherent in any criminal
justice system which may not be readily apparent to economists
such as Lord Carter and the rest of his team who had little or
no experience of criminal law or indeed of legal aid practice.
We would respectfully invite the committee to recommend that Lord
Carter's proposals should not be implemented in their current
form but that the system needs to be properly funded and rates
of pay incrementally increased on a year by year basis.
9. To implement these proposals would mean
that the most vulnerable members of society particularly in relation
to criminal law and child care law who may suffer from numerous
disabilities including mental health problems, health problems
and learning difficulties would not have access to a lawyer to
challenge the case put forward either by the state, local authorities
or other prosecution agencies and equality of arms would in our
submission be non existent.
October 2006
| 
