Evidence submitted by Bristol Law Society
(LAR 117)
"A FAIRER DEAL FOR LEGAL AID"
Bristol Law Society represents approximately
1,400 members within Bristol and the surrounding countryside.
Practices consist of those in both rural communities and the large
urban area of Bristol. The Criminal Law Committee consists of
representatives from criminal defence firms, justice's clerks,
a crown prosecutor and chief clerk in the Crown Court. The committee
has over 200 years combined experience within the criminal justice
system and the defence representatives consist of both employed
solicitors and partners within firms.
We would wish to make a number of fundamental
points to the Committee before addressing Lord Carter's Review
and recommendations.
1. There has been no proper increase in
rates of remuneration for criminal defence lawyers for 14 years
save a very small rise in 2001. During the same period of time
the cost of running practices has increased by over 60% taking
into account overheads such as wages, travel, electricity, insurance
rates and rent.
2. We accept the findings set out in Lord
Carter's report of his independent analysts PKF and Otterburn
legal consulting namely that many criminal defence practices operate
on the edge of profitability and that criminal defence practices
are amongst the most efficient within the legal community.
3. We would submit that against the background
set out in (1) and (2) above it is clear that the Government are
deriving best value from those practitioners working within the
criminal defence service. We would however ask the committee to
compare the cost of such practices with the cost of the Public
Defender Service where a report was commissioned by the Legal
Services Commission into the cost and effectiveness of the Public
Defender Service and this report was carried out by Professors
Cape and Moorehead. We understand that the report was finished
some considerable time ago but has strangely not yet been published.
4. We concede that there is much wastage
within the criminal justice system in the main occasioned by the
inefficiencies of other agencies within the system such as the
police, the Crown Prosecution Service, the national offender management
service on occasions the Court Service as well as independent
contractors responsible for the production of prisoners to court.
One of the prime difficulties is that each independent agent is
only mindful of its own budget and has little regard or concern
for the budget of others including the legal aid budget.
5. It is our submission that there has been
a considerable increase in the volume of cases passing through
the court which has a direct effect upon the legal aid spent in
relation to the criminal defence service. In support of that we
would point to the following factors:
(a) The number of cases received in the Crown
Court in England and Wales rose by over 15% between 2001 to 2004.
(b) The number of cases received in the Magistrates
Court increased between 2001 and 2003 by 9.2%.
(c) The prison population has increased from
63,400 as at January 2001 to almost 80,000 at the present time.
(d) There has been a vast increase in legislation
and a survey by the pressure group "Liberty" recently
demonstrated that since 1997 there had been at least 700 acts
of Parliament dealing with criminal law there have been new offences
created under the Sexual Offences Act and under Terrorism Legislation.
(e) The Criminal Justice Board figures show
that a rise of 19% in the number of offences brought to justice
nationally occurred between March 2002 and June 2005. It is
therefore hardly surprising that the spend in legal aid on the
criminal defence service has risen between 1997 and 2005 by 37%
in real terms. However, that needs to be compared with the increase
in spend in the Crown Prosecution Service within the same period
of 60% and increase in spend by the Serious Fraud office in the
same period of 110% and an increase in spend by HM Customs and
Excise prosecution and detection of 50%.
It is our submission that Lord Carter's Review
seeks to provide a quick fix for the spend by penalising criminal
defence lawyers without addressing the real issues as to the increase
in spend. From a survey carried out with local defence practices
it was established that the profitability of those practices range
between 15% and 18% of the gross income this having reduced annually
for the past 10 years.
We would estimate based on the figures set out
in Lord Carter's proposals and having regard to the effect of
fixed fees in the Magistrates Court, the police stations and the
Crown Court coupled with the reduction in spend in travel and
waiting that the reduction for each individual practice would
be of over 20%. It would therefore be obvious that practices far
from operating at the margins of profitability would be operating
at a vast loss. We have not established a single practitioner
within the Bristol area who feels that the current proposals put
forward by Lord Carter could be made to work and there are a number
of firms who are considering reducing the number of staff or even
closing their legal aid departments entirely. This is particularly
so in the rural areas who may have to travel greater distances
to visit clients in prison or to attend Courts or police stations,
there is therefore going to be a serious affect on their client's
access to justice. Lord Carter in his report suggests that the
imposition of fixed fees can be seen as an incentive to reward
efficiency, equally in our submission they can be seen as an incentive
to cut corners, standarised cases can be dealt within a fixed
fee system however in any fixed fee system there has to be a viable
escape route for the more serious and complicated of cases.
BEST VALUE
TENDERING
It is our considered opinion that best value
tendering is neither viable or appropriate for the provision of
legal services within the criminal defence service. This is not
a manufacturing industry whereby an identical product is supplied
each time. The services provided depend upon the client and the
nature and complexity of each case. Many clients of criminal defence
practitioners are amongst the most vulnerable members of society,
they may be immigrants, dyslexic, severely challenged in reading
and writing or have severe mental health difficulties. Many are
drugs addicts or have alcohol dependency problems, one cannot
rationally see that any one case is the same as any other. To
reduce such cases to standard units is both iniquitous and potentially
an affront to justice.
We are deeply concerned that Lord Carter's report
fails to mention at any stage the research carried out by Professors
Ed Cape and Richard Moorehead. That report into why the cost in
the legal aid system had increased for defence lawyers exploded
the myth that defence lawyers were responsible for those increasing
costs quite how or why such an important piece of research could
be overlooked or discounted by the Carter Review is a mystery
and in our view casts very real doubt upon the credibility of
his report. We would also draw to the attention of the Committee
the report commissioned by the Law Society by the Economists LECG
which shows the vulnerability of criminal defence firms coupled
with the projected meltdown that would follow.
6. We are concerned that many firms within
rural areas who currently provide criminal defence services as
a service to their community without those services adding to
the profitability of the practice will simply cease to do criminal
defence work altogether. This means that those rural communities
will have no criminal defence service practitioners. If it is
expected that firms within urban areas will take on this increase
in work in rural areas then we have very grave doubts as Lord
Carter's report envisages the abolition for payment of travel
and waiting. Firms will not be prepared to take on uneconomic
work outside of the urban boundary in which they operate, the
effect of this would be to create access deserts within many areas.
We would submit that the Government currently obtains excellent
value from criminal defence lawyers for the reasons set out above.
The reason for the increase in cost of the service is reflected
by the increased number of offenders being brought to justice.
It is our submission that rates of pay need to be further increased
to ensure sustainability of the market, we would accept that some
steps could and should be taken to avoid the continuing fragmentation
of the market for example a restriction on the grant of new contracts
in areas where there is sufficient supply. This might allow the
markets to evolve into larger units as is envisaged by Lord Carter.
We do however believe that the present proposals risk wholesale
breakdown of the system which is likely to prove irretrievable.
We also do not accept the contention of Lord Carter that there
will be an increase in supply. The current desire to take a number
of cases out of the criminal justice system to be dealt with by
way of fixed penalty notices or cautions or conditional cautions
is increasing. If that fact is coupled with the likely impact
that means testing would have, which based on the Department of
Constitutional Affairs own figures shows that between 70,000 and
100,000 applicants will become disenfranchised ie not eligible
for legal aid on means alone. These factors alone are likely to
lead to a diminution in the amount of work and completely destroy
Lord Carter's basis for his proposals. We would therefore invite
the committee to recommend that Lord Carter's proposals should
not be implemented in their current form but that the system should
be properly funded and that there should be an increase in the
rates of pay on a year by year basis in line with inflation.
November 2006
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