Select Committee on Constitutional Affairs Written Evidence


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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