Evidence submitted by the Birmingham Law
Society (LAR 139)
The Birmingham Law Society represents approximately
2,500 solicitors. The Criminal Law Committee represents criminal
law solicitors, in practice those who represent defendants, from
the Birmingham, Solihull and Sutton Coldfield areas.
We do not accept that the figures on which Lord
Carter's report is based are robust. We do not accept that they
would stand up to close analysis. We find it extraordinary that
a blueprint for the overhaul of the legal aid system should be
based on such flimsy data. We understand the reasons for the desire
to reform the legal aid system. However, in doing so we see no
alternative to obtaining the relevant data. We understand why
such data might not be obtainable today. The systems used by the
DCA, LSC, Crown Courts, Magistrates' Courts and other relevant
organisations may not be compatible. However, That is no reason
for carrying out changes anyway: Changes which will affect the
livelihoods of many people who have given years of public service;
and changes which will affect the service provided to many vulnerable
and young members of our society.
The surveys we conducted showed that Lord Carter's
police station proposals would result in reductions in fees earned
between 17% and 31%. So far as Magistrates' Court fees are concerned,
Lord Carter's proposals are largely costs neutral based on historical
analysis. However, they fail to reflect the reduction in crime
(Central Crime Survey and West Midlands police statistics), the
reduction in the number of people charged, certainly in the West
Midlands, as a result of pre-charge advice (by the CPS to the
police). They also fail to reflect the more realistic charges
which, in themselves, should result in less trials and the reduction
in legal aid costs which will result.
The same can be said of the Crown Court proposals
where the changes appear to disadvantage the larger firms (the
reverse of Lord Carter's aims). The fixed litigators' fees will
assist the shorter, usually less serious, trials. These often
represent the overwhelming majority of cases for the smaller firms.
For these firms Lord Carter's proposals would be broadly costs
neutral, provided there were sufficient bolt-on extra fees for
representing those with mental health problems, those requiring
interpreters, youths, those that are vulnerable in another way,
those requiring experts' reports, those in which CCTV recordings
have to be viewed, etc However, where the larger firms have a
much higher proportion of the more serious and complex cases,
these cases would fare disastrously under Lord Carter's proposals:
a 10% increase in fees from 10 £500 cases do not make up
for a 40% loss in fees from one £100,000 case. These are
the figures we are being presented with.
In our view Lord Carter's fixed fee proposals
are not remotely viable for any but the simplest of Crown Court
Cases. His proposals seem to us to be a recipe for the lazy, incompetent
or crooked. We see a real danger of serious prejudice to defendants
in our adversarial system of criminal justice.
It seems to us that Lord Carter failed to understand
the fundamental distinction between the roles and work done by
advocates (normally counsel) in the Crown Court and their instructing
solicitors (referred to as "litigators"). The advocates
consider their instructions from the litigators, advise, prepare
for advocacy and advocate in court. It is relatively easy to devise
a fixed (or "graduated") fee structure with appropriate
bolt-ons for Advocates.
The litigators obtain their client's detailed
instructions, proof of evidence and comments on the prosecution
evidence. In more serious and complex cases the prosecution evidence
does not arrive in one bundle, it arrives piecemeal throughout
the case, and often during the actual trial itself too. The litigators
need to be constantly obtaining their client's instructions thereon
and pursue lines of defence that are constantly developing. Their
clients are often of low intelligence, vulnerable, with mental
health difficulties, youths and/or in custody. Their place of
incarceration is frequently a long way from the place of their
arrest, home, trial and their litigators, especially in the more
serious cases. The litigators need to prepare case plans and strategies.
They need to track down and proof often reluctant witnesses who
may suffer from any of the disabilities referred to above. Litigators
commission medical and other experts' reports which often in itself
are complex exercises involving the prosecution evidence, the
client's and his/her witnesses' instructions. Litigators prepare
defence case statements, consider the CCTV, go on site visits,
take photographs and prepare plans. Litigators deal with disclosure
(or lack of), bad character and hearsay applications and communicate
with all relevant parties, including the court and the CPS to
try to ensure the smooth and expeditious running of the case,
as well as communicating with the client's family in many cases.
The litigators also have to deal with the ethical consequences
of the interaction of the defendant with the judicial system.
It is only in the simplest of cases that it
is possible to pigeon hole this work in to a fixed fee with bolt-ons.
For all but the simplest of cases the existing system of standard
fees with escape provisions, where justified, is the only way
to protect the interests of those being prosecuted by the unlimited
resources of the state in an adversarial system.
Brief mention should also be made of the very
high costs cases ("VHCC") proposals. Here a "Dutch
auction" is proposed. The reason for the disproportionate
amount of defence costs being used up in VHCCs is because of the
failure of the prosecution authorities to manage the prosecution
of complex cases properly. When prosecutors adopt a scattergun
approach at complex cases, using the infinite resources of the
state, it is wrong to limit the total defence expenditure by forcing
the defence contractors in to a "Dutch auction". This
can only lead to the cutting of corners and the risk of convicting
those who may have had legitimate defences if only the prosecution
evidence was considered properly.
So far as Magistrates' Court work is concerned,
we note that major change is not proposed in the immediate future.
We note that on the LSC's figures the spend on Magistrates' Court
fees is generally under budget and we note too the complaint of
many firms of solicitors that their Magistrates' Court departments
are unprofitable. They run at a loss. The dilemma for most firms
is that they cannot do police station or Crown Court work without
also doing Magistrates' Court work.
Although Magistrates' Court work is generally
the simpler cases, they can be complex, have many defendants and
will become all the more complex when the Magistrates' Courts"
powers are extended with the implementation of the changes in
the Criminal Justice Act 2003.
We regard a fixed fee for police station work
as unviable. The proportion of non-terrorist cases which take
more that 18 hours work is minimal. Lord Carter fails to grasp
that the most important part of most criminal investigations takes
place in the interviews of the suspect in the police station.
Lord Carter's proposals create a conflict in the less serious
cases paying for the more serious which will cause serious prejudice
to suspects, in an adversarial system of justice. The more serious
the case, generally, the longer the investigation. The longer
the investigation the less the suspects' legal representative
receives per hour on a fixed fee basis. Just when a case demands
a more senior fee earner, spending more time at a police station,
due to its seriousness, the greater the pressure to have a more
junior representative, spending as little time as possible there.
We regard these proposals as another failure to understand the
adversarial nature of the criminal justice system in the United
Kingdom.
As with the other aspects of the criminal justice
system, waiting time is almost always outside the legal representatives'
powers to do anything about. Waiting time is caused by the courts
and the other constituent parts of the judicial system. That being
the case, we should be paid for waiting at the behest of others.
This is true in police stations too.
We see no reason for not implementing standard
fees for police station work, as in the Magistrates' Court now,
with certain time resulting in one standard fee, certain other
time resulting in a higher standard fee and even more time resulting
in being paid for all work reasonably done.
Travelling is a more difficult problem, particularly
in London. Indeed, we understand that the London travelling times
claimed, particularly to and from police stations, was the catalyst
for all these proposed reforms. We do not believe that addressing
travel to and from police stations in London should result in
a fundamental alteration of the legal aid system, to the detriment
of solicitors and the prejudice of suspects and defendants, without
full and robust data both as to the past and as to the consequences
of the proposals.
October 2006
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