Evidence submitted by The London Criminal
Courts Solicitors' Association (LCCSA) (LAR 158)
I write as President of the London Criminal
Courts Solicitors Association (LCCSA) to enclose our submissions
to the Committee in this matter.
INTRODUCTION
By way of the requested brief introduction to
our Association: the LCCSA represents the interests of specialist
criminal lawyers practising in the London area. The Association
was founded in 1948 and now has more than 1,000 members including
lawyers in private practice, Crown prosecutors, freelance advocates
and many honorary members who are circuit and district judges.
The objectives of the Association are to encourage and maintain
the highest standards of practice and advocacy in the criminal
courts in and around London, to participate in discussions on
developments in the criminal process, to represent and further
the interests of our members on issues that affect them and to
develop and maintain the education and knowledge of our members.
We attach as requested, and in addition to the
enclosed substantive submissions, an Executive Summary of the
princpal points contained in those submissions. We have as requested
limited our submissions to under 3,000 words. In doing so we have
of necessity excluded material of relevance, for example issues
upon which we have sought clarification and information from the
LSC which are as yet unanswered. We would be pleased to provide
this additional information if requested by the Committee.
The Committee should also be aware that we are
in the process of preparing data which is relevant to the terms
of reference of the inquiry. We propose to submit this data to
the Committee separately, once our research is complete. We believe
it will be of considerable relevance and interest.
Any questions in relation to these submissions
may be referred to me.
As we have explained previously, we would like
to take any opportunity to give oral evidence to the Committee
and we look forward to hearing from you in that respect.
LCCSA EXECUTIVE SUMMARY
TO THE
CONSTITUTIONAL AFFAIRS
COMMITTEE RE:
IMPLEMENTATION OF
CARTER REVIEW
Is there a need to modernise the procurement of
legal aid?
— Many businesses currently operate
on edge of profitability. The supplier base is therefore at risk.
— These proposals threaten the sustainability
of the supplier base and the structure of the criminal justice
system
— Lord Carter's proposals are based
on the premise that the criminal legal aid budget is out of control.
Evidence in support of that premise is limited, as acknowledged
by Lord Carter. The committee should be sure of the true state
of affairs particularly given the extreme risks posed to the criminal
justice system and the public of Lord Carter's ultimate recommendation:
competitively tendered criminal defence services.
— The LSC confirms that the budget
for police stations and Magistrates Courts is under control. This
is despite massive changes in recent years in the provision of
criminal defence services. The key costs drivers especially in
serious cases are outside the control of defence practitioners.
To deal with this by cutting costs in defence services is illogical
and does nothing to tackle the real causes of increasing costs.
Is the timetable for implementation suggested
in Lord Carter's report realistic?
— The proposed timetable is unfair
to suppliers and unrealistic in its expectations of what the LSC
can deliver in the time available.
— The proposed timetable introduces
price cuts in advance of proposed benefits:cuts come before volume
increases and before consolidation of work into specific contract
areas.
— Many issues have not yet been resolved;
others not even considered. Questions asked of the LSC to try
to resolve these issues have not been answered and business planning
remains virtually impossible.
What benefits might be generated for defendants
and others by adopting these proposals? What impacts/disadvantages
might result from implementation?
— We do not believe that defendants
or the courts will benefit from implementation of these proposals.
— Loss of quality of service is the
major impact that will result from implementation. The elements
of that loss of quality are set out in detail in the response
but in summary:
— Fixed fees encourage and reward expenditure
of minimum time and effort and use of inexperienced and non-professional
staff;
— Increased danger of inappropriate
guilty pleas;
— Lawyers with knowledge of clients
and cases lost to the system;
— Clients no longer have freedom of
choice of solicitor.
— This in turn will lead to:
— Loss of talented lawyers from criminal
legal aid system;
— Shift in balance of criminal justice
system with the simultaneous loss in defence resources and increased
resources for the police and prosecution weakening the defence.
Weakened defence will in turn lead to failure to hold the prosecution
to account;
— Instability in defence supplier market
with increased bureaucracy, loss of profitability, closure of
firms and preponderance of a small number of large firms;
— Loss of public confidence in criminal
justice system with increased risk of miscarriages of justice
and consequences that flow from that.
THE IMPACT
OF THE
PROPOSALS ON
DIFFERENT COMMUNITIES
— Vulnerable defendants: a fixed fee
system will work to their detriment as the model is an incentive
for firms to avoid "demanding" clients.
— Defendants with complex cases: will
be disadvantaged since the proposed system creates disincentives
for lawyers to take on such cases.
— Lawyers from BME groups: will be
disproportionately affected as a far greater proportion than the
average work in smaller, newer firms which are more likely to
be forced out of business. This is especially so in London where
many BME owned firms are located.
— London: clients and lawyers based
in London face particular disadvantages, London having more police
stations, magistrates' and Crown courts, spread over a greater
area, than any other in the country. The loss of the own-client/solicitor
relationship will be particularly felt in London. The proposed
"20% rule" does not adequately deal with the problem
as it arises in London. Competition on quality and reputation
will not be possible given the limited ability for clients to
choose their own solicitor.
What impact will any or all of the recommendations
have on legal aid providers? How will the proposals affect firms
of differing size, structure and practitioner mix?
— The proposals will incentivise firms
to employ a high proportion of lower-skilled and unqualified staff.
Accordingly suppliers with a high proportion of qualified, experienced
(and therefore more expensive) staff will be placed at a disadvantage.
— It is unrealistic to expect that
smaller or medium size firms will merge. In particular if they
are multi-disciplinary. They will try to survive; many will close.
— There is a very real risk of a loss
of civil supply as many firms also do civil work.
WHETHER THE
MEASURES PROPOSED
WILL PROMOTE
THE PROVISION
OF HIGH
QUALITY ADVICE
AND SUPPORT
THE EFFECTIVE
AND EFFICIENT
OPERATION OF
THE JUSTICE
SYSTEM
— This is dealt with above. Introduction
of a competitively priced fixed fee system will adversely affect
the quality of advice given with potentially devastating effect
upon the outcome of individual cases and defendants, the existing
balance in and resourcing of the criminal justice system and public
confidence in that system.
LCCSA SUBMISSION
TO THE
CONSTITUTIONAL AFFAIRS
COMMITTEE RE:
IMPLEMENTATION OF
THE CARTER
REVIEW
Is there a need to modernise the procurement of
legal aid?
1. Does modernise mean "cut costs"?
We accept that the DCA must control costs and where possible reduce
them. Currently many firms operate near the edge of profitability.
The latest research commissioned by the Law Society[94]
is instructive:
— Fees for criminal legal aid work
have remained almost static over the past five years and criminal
solicitors last saw a pay rise in 2001.
— Between 2001 and September 2005 almost
1,000 criminal legal aid practices closed down.
— Criminal legal aid firms can expect
to make at best a minimal profit.
— Many are now losing money.
2. LC[95]
confirmed that many criminal law firms are marginally profitable
as reported by independent analysts Otterburn Legal Consulting.
3. Efforts to produce greater efficiency
in the system through these proposals go beyond cost saving measures.
They risk destroying the supplier base and creating an imbalance
at the heart of the criminal justice system that may prove difficult
if not impossible to rectify.
4. We question whether the budget crisis
is so bad as to justify the proposed revolution. We urge the committee
to obtain all the current budget details before accepting the
premise on which these proposals rest. We have had the greatest
difficulty in establishing the budget position and our many requests
for transparent information have gone unanswered.
5. LC was appointed to produce a radical
review after the competitive tendering proposals were universally
criticised. His report proposes a staged plan that leads ultimately
to the same solution—competitively tendered criminal defence
services. These radical proposals are based on severely limited
information:
"The biggest challenge that I have faced
is the inadequacy of the management information available. The
complexity and the opaqueness of the numbers, their components,
the inability to forecast change, and the lack of a comprehensive
understanding of the whole system, all contributed greatly to
the difficulties I have encountered".[96]
6. The risk is that if LC's figures are
wrong, the damage done to the supplier base will be irreparable.
The LSC has insufficient information. More time and greater analysis
are needed and better management information is required for more
informed decision making.
7. We do not then believe that the sweeping
changes proposed by LC are either necessary or appropriate. It
is our strong view that the trend of the legal aid budget is downwards.
— The upward pressures that exist are
due to external cost drivers.
— There is no evidence that they are
supplier driven. (see the LCCSA submission to the DCA/LSC consultation).
— There are ways of tackling those
cost drivers which do not undermine the supplier base or the ability
of defence lawyers to properly represent their clients.
8. In recent years the landscape of criminal
defence provision has changed beyond recognition.
— New laws enter the statute books
yearly bringing new offences.
— The number of people charged, convicted
and imprisoned rises.
— Changes to procedure add to the complexity
of the defence lawyer's task: eg to name just three of many we
now draft "defence statements" and prepare for and litigate
on bad character and "hearsay" applications.
— Audit requirements from the LSC ensure
that the lawyer must not only advise thoroughly but record thoroughly
and contemporaneously in the police station all instructions,
advice given and events occurring whilst dealing with police officer,
client and the job in hand.
— Sentencing in the Magistrates Court
has been made very complex by the provisions of the Criminal Justice
Act 2003.
9. LC confirms that in providing these services
criminal defence firms are amongst the most efficient of all legal
practices[97].
10. The budget for "proceedings"
is set to fall further. The means test is being re-introduced
having been abandoned by the government in 2000. The number of
defendants eligible for legal aid will decline greatly.
11. What is extraordinary is that so little
attention has been devoted to the most important matter of all,
which is that 1% of cases absorb nearly 50% of the criminal budget.
Instead a huge amount of time and effort has been put into the
idea of restructuring that part of the budget which is under control.
We do not understand why this lopsided and perverse approach has
been adopted.
12. LC seeks to save £100million each
year. To this end the entire system now faces radical overhaul
and the closure of hundreds of businesses. However, these savings
may be wiped out by just a few "juggernaut" prosecutions.
The Jubilee Line case is known to all. On a smaller but more common
level a large six defendant fraud case suitable for two counsel
and running to many months may easily cost £3 million.That
same sum represents an hour's work on standard rates for just
under 14,000 detainees at a police station (based on the London
average cost of £215, or just under 11,500 category 1 lower
standard fees in London magistrates' courts (based on average
of £262.32)).
13. With the advent of large scale terrorism
trials and the increasing occurrence of VAT carousel frauds the
potential for these juggernaut cases to impact adversely on the
budget to the detriment of the system as a whole is enormous.
However, there is as yet no system in place to deal with such
issues and either prevent these prosecutions from proceeding where
they may not be in the public interest or ensure that the legal
aid budget is assisted to cope with the added burden. LC was not
tasked with considering this issue. Instead, the solution to the
problem of increasing costs brought about by prosecutorial decision
making is to cut the costs of the defence service. This is illogical
and does nothing to tackle the real causes of increasing costs.
14. Other costs drivers in the system include:
— Late delivery of prisoners.
— The use of inadequately qualified
caseworkers by the CPS in and out of court.
— Lack of court time through "over-listing".
— The endless failures of police to
provide information in advance of bail to return dates.
— The bail to return culture itself.
15. Waiting for unknown change has had a
paralysing effect on suppliers. Business planning has been near
impossible. Should leases be renewed and for how long? Should
time and money be invested in trainees? With no guarantee of a
contract should further staff be taken on to grow to the Carter
model?
16. LC's remit did not allow him to consider
other modernisation issues such as providing an interest free
loan to firms to purchase video link facilities (to conduct prison
visits from the office) and LSC recommended accounts and case
management software, repayable only should the firm cease to engage
in legal aid work.
Is the timetable for implementation suggested
in lc's report realistic?
17. The proposed timetable is unfair to
suppliers and unrealistic in its expectations of what the LSC
can deliver in the time available.
18. LC offers a deal to those suppliers
remaining in the market. Prices paid for work will reduce but
there will in return be a guarantee of a greater volume of work:
there will be less profit per case but more cases for the firm
to profit from. In theory, as there will be a greater geographical
concentration of work, economies of scale will result. Less time
will be spent on uneconomic activities such as travelling and
waiting as fee earners at busy police stations and courts seamlessly
move from one case to the next.
19. Unfortunately the timetable introduces
the price cuts in advance of any planned benefits. Cuts come before
volume increases; before consolidation of work into specific contract
areas. Too much of the plan has simply not been thought through.
What benefits might be generated for defendants
and others by adopting these proposals? What impacts/disadvantages
might result from implementation?
20. We do not see any obvious benefits to
defendants in the current proposals. Likewise we believe the court
itself will be served less ably by solicitors handling an ever
greater number of cases and working under greater time pressure
than ever before.
21. The proposals will inevitably result
in a massive reduction in the quality of service and representation
available to clients:
— Clients' ability to instruct the
solicitor of their choice will be severely restricted.
— Sentencing courts will lose the benefit
of hearing from an advocate with long standing knowledge of the
client before them.
— Cases preparation will be delegated
to non qualified and inexperienced staff (an obvious economic
response to a fixed fee regime).
— Staff will be pressured to cut corners
and ignore so-called "non essential" or "time consuming"
tasks.
— Crude financial encouragement of
early guilty pleas will discourage lawyers from fully examining
their clients' cases.
— Fixed fees in the police station
will open up the potential use of delay tactics by some police
officers leading to unrepresented or improperly advised suspects.
— Clients will have to travel further
than before as solicitors firms will disappear from many high
streets.
— Individual lawyers with knowledge
and experience will simply be lost to the system.
22. The Association further believes that,
if implemented, the proposals will lead to:
— A lack of any incentive to attract
talented lawyers in to the system, as demonstrated by research
conducted by the Law Society. Certainly the Carter model for massive
firms owned by one or two equity partners leaves little scope
for any ambitious young lawyer.
— Economic and social costs to local
communities as a result of the closure of legal aid law firms;
significant job losses.
— A reduction in the quality of defence
work, risking an increase in the number of miscarriages of justice
with consequent human and economic costs to the lives of effected
individuals, costs of re-trials, costs of civil claims, loss of
reputation and a loss of confidence in the criminal justice system.
— Extra costs for implementing the
system: LC has recognised that his proposals will entail significant
transition costs but the costs will inevitably be greater than
the funds made available.
— A reduced standard of defence, encouraging
lower standards in the police and CPS. Defence lawyers traditionally
hold state agencies to account. Poor or shoddy defence work will
inevitably encourage lax policing and prosecution.
— The loss of the lawyer-client relationship
and knowledge, leading to loss of continuity within the case,
causing delays in the time and number of hearings required to
complete cases. There will be a financial incentive not to make
representations to the CPS to discontinue a prosecution because
these are often time consuming and have no guarantee of success.
— Perpetual bidding rounds for all,
leading to increased costs for the LSC and for firms; business
planning, employment/expansion will be all but impossible with
short-term contracts.
— A massive increase in bureaucracy
for firms and the LSC as a result of numerous different contracts
for different police stations and courts, with varying rates of
pay.
— The long-term danger of a few large
firms taking over the entire system and controlling the market:
what happens if one of those firms fails?
— The closure of firms, jeopardising
the sustainability of the national supplier base and causing the
creation of advice deserts in civil and criminal legal aid.
23. These negative impacts will contribute
to a wider trend towards imbalance in the criminal justice system.
The DCA has published a recent paper "Rebalancing the System
in Favour of the Law Abiding Majority" away from the perceived
excessive rights of the suspect/defendant:
— Uneven resources: as the defence
are pressured to defend more and more cases with an ever tightening
budget so in the same period we have seen increases in police
resources and a greater sophistication of investigations. The
creation of the Serious and Organised Crime Agency is one example
of the understandable commitment of the state in this area[98].
— Uneven court proceedings: legislative
changes including the end of the right to silence; introduction
of bad character provisions allowing for a defendant's previous
convictions to be known to the jury; a more restrictive approach
to disclosure to the defence of material available to the prosecution;
greater pressure on defence lawyers to disclose their client's
defence in advance of trial.
24. These two trends, when combined with
cuts in legal aid, will reduce the balance and fairness of our
criminal justice system. As to wrongful convictions resulting
from poorly prepared defence or prosecution failures, historically
such miscarriages of justice have been overturned by the diligent
efforts of individual lawyers, often working alone or in small
practices. The model of corporate efficiency envisaged by Carter
will be unlikely to promote such work.
IMPACT THE
PROPOSALS WILL
HAVE ON
DIFFERENT COMMUNITIES
(SUCH AS
BLACK, MINORITY
ETHNIC AND
RURAL COMMUNITIES).
25. Fixed prices will create pressures in
the system likely to result in discrimination against various
minority groups. As a firm's profitability becomes tied to its
ability to process cases ever more quickly there will be a financial
incentive for the firm to avoid cases or client groups viewed
as "demanding":—
— Cases involving non-English speaking
clients necessarily take more time to prepare and in court. Such
cases will be "less profitable" than similar cases with
English speakers.
— Cases involving clients with mental
health problems demand more time from the lawyer and more court
hearings as medical agencies comment on issues such as fitness
to plead. A crude fixed fee system will operate to the detriment
of these clients as the new market driven model lacks the flexibility
to cater for their particular needs. Consequently some of the
most vulnerable individuals will no longer be able to receive
the care and service they require.
— Clients with speech, hearing or other
communication difficulties will face similar difficulties.
— Lawyers from ethnic minority groups
will be adversely affected. Working disproportionately in small
and often new businesses in the London area, the forced closure
of small businesses will see the disappearance of many such firms
and will reduce the presence of minority lawyers at senior levels
of the profession. From holding positions of influence they will
be reduced to junior partner or fee earner status. The pool from
which senior ethnic members of the legal profession can be selected
(for the judiciary) will be significantly reduced.
— Subject to the detail of the proposals,
it appears that many complex cases will become loss making for
law firms. Any case where the defendant wishes to produce a large
number of witnesses or involving the viewing of lengthy CCTV,
or requiring detailed analysis of voluminous prosecution exhibits
will likely be so cost ineffective as to create disincentives
for lawyers to take on such work.
LONDON
26. A particular problem arises in connection
with London. London has more police stations (222) Magistrates
Courts (50) and Crown Courts (12) than anywhere else in the country.
People use a solicitor local to their home or near a police station
where they were previously arrested, or to whom they have been
referred—and whom they trust. People do not always get arrested
near their solicitor's office. As such the concept of "own-client"
work, with all this entails in terms of the build up of trust
and competition between solicitors, based on the quality of their
work, will be lost. Quality will be lost for the client; job satisfaction
diminished for the lawyer.[99]
27. LC seeks to address this concern by
means of the "20% rule" to allow for cases out side
the contracted area to be dealt with. Whether this is sufficient
for firms outside London successfully to continue to represent
their long standing clients we leave others to comment. In London,
the 20% figure is for many firms negligible. Firms with an excellent
reputation, who receive referrals of work from old clients, the
voluntary sector and other solicitors will not under these proposals
be able to act for these clients. Trust built up over years and
the personal knowledge crucial to dealing with some of the most
vulnerable, disadvantaged or just plain difficult people appearing
in the court system will be lost.
28. Currently firms compete with one another
by reputation based on the quality of work and dedication of staff.
Under the new proposals, guaranteed volumes of work—and
eventually the lowest price per case—will replace that free
market competition.
WHAT IMPACT
WILL THE
RECOMMENDATIONS HAVE
ON LEGAL
AID PROVIDERS?
HOW THE
PROPOSALS WILL
AFFECT FIRMS
OF DIFFERING
SIZE, STRUCTURE
AND PRACTITIONER
MIX.
29. The proposals offer a way for some larger
firms to see off the competition they face from local competitors.
The proposals seek to assist larger suppliers, not through the
creation of a genuine free market but rather by rigging the market,
creating false boundaries, guaranteeing levels of supply and prohibiting
competition between firms.
30. The proposals create a rigged market
as firms with small turnover, low average costs and high quality
performance will be precluded from competing. Further, a firm
wanting to represent its client half way across London—and
prepared to cope with resulting travel time and potential waiting
time—even if unpaid—would be precluded from doing
so. Why should this be so?
31. The expectation of mergers is unrealistic.
Many firms will close.
32. Firms with high numbers of qualified
and experienced staff will be worst placed in the market. With
no ability to attract potentially challenging and complex work
(by reputation) these firms will simply find themselves unprofitable.
33. The likely income figures for partners
in LC's for partners report do not accord with any structures
of which we are currently aware or predict to be likely.
WHETHER THE
MEASURES PROPOSED
WILL PROMOTE
THE PROVISION
OF HIGH
QUALITY ADVICE
AND SUPPORT
THE EFFECTIVE
AND EFFICIENT
OPERATION OF
THE JUSTICE
SYSTEM.
34. We have set out above why the quality
of advice will diminish. Pressures of time and profit will combine
with the loss of continuity in representation (particularly in
London) to adversely effect the quality of defence preparation
and the quality of information available to judges, magistrates
and juries.
Linda Woolley
October 2006
94 LECG Report 25 September 2006. Back
95
References to "LC" all equate to "Lord Carter". Back
96
From LC's covering letter to his report. Back
97
LC p 42. Back
98
See BBC news 28.09.06 "Airline bomb plot costs Met Police
£18.2 million in 6 weeks". Back
99
According to one study published in 2001 (Criminal Case Profiling
Study, Pascoe & Pleasance), cases conducted by solicitors
based in London were more expensive, reflecting, in part, the
peculiar case mix of the Central Criminal Court, Inner London
Crown Court and Snaresbrook Crown Court. The first two of these
courts account for over two-thirds of cases costing over £250,000. Back
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