Evidence submitted by Andrew Siddall,
Varley Hadley Siddall (LAR 198a)
1. I qualified as a Solicitor in 1989 and
have been a partner in VHS since its formation in 1999. Throughout
my career I have specialised in criminal defence.
2. VHS is a niche practice specialising
almost exclusively in publicly funded criminal defence work. We
have 3 equity partners (myself included), two salaried partners,
seven other Solicitors, 6 non-Solicitor fee-earners and 8 other
support staff. We are based in the city centre of Nottingham and
have a branch office in the Derbyshire market town of Ilkeston.
3. Throughout our existence we have been
given the impression by the Legal Services Commission (LSC) that
we are a model firm in terms of size, organisation and specialism.
We note with much interest that in Annex 5.1 of his report Lord
Carter considers the impact of his proposed fee structure on 5
model firms. We doubt whether any of those models currently exist
or more importantly could exist in a post Carter world. This firm
for instance would be expected to have a further 42 fee-earners
after partners. That in my submission is totally unrealistic.
4. Nottingham has been well regulated for
a number of years with half a dozen or so firms dealing with the
vast majority of criminal defence work. In simple terms Lord Carter
speaks of the volume of work that firms can undertake increasing
(page 5, paragraph 30) but in Nottingham, given the model which
presently exists this is unlikely to happen. The reality is that
fee income will reduce dramatically with little possibility of
increasing the volume of work. This will mean that the firm's
profits will be reduced to an unsustainable level. It seems to
me that the not so hidden agenda of Carter is to drive down fees
to such a level that many suppliers will simply withdraw from
the market leaving a large number of defendants to be serviced
by just a few Solicitors who are operating on barely sustainable
profit margins. This cannot be in the interests of justice and
will certainly not promote the provision of high quality advice.
5. I sincerely believe that the implementation
of the proposals will have a far-reaching effect on the provision
of legal services and in my submission will impact negatively
upon defendants and the criminal justice system. The quality of
advice and representation will suffer and this will undoubtedly
affect the operation of the criminal justice system as a whole.
6. This firm would be expected to change
beyond recognition. That said we are not afraid of change—in
1999 myself and my 2 equity partners split from a large high street
firm to form a niche specialist practice. We do not have plush
offices full of expensive furniture. We are based on the third
floor of an office block in a quiet street because we would otherwise
be unable to pay the large rents demanded for better premises.
We do not have a receptionist and operate with one secretary to
every four fee earners. We have no choice but to strive to be
as cost effective as possible in order to produce a reasonable
level of profit. Lord Carter speaks of making savings but there
are few more to be had. Notwithstanding this we have consistently
provided a high quality service to our clients since 1999. The
changes Lord Carter envisages are so radical as to be naïve,
unrealistic and unachievable. At page 184 he sets out the proportion
of hours expected to be spent in the Police Station, Magistrates'
Court and Crown Court by various grades of fee-earner. He envisages
Solicitors spending very little time in the Police Station with
the majority of the work being done by equity partners, accredited
representatives and trainee Solicitors. Presumably he envisages
the partners dealing with the very serious crime and the others
dealing with the bread and butter cases. This shows a complete
lack of understanding of the cases which make up the average practice.
Serious cases such as murder and robbery etc are the exception
rather than the norm and do not occur on a daily basis. The vast
majority of offences involve theft or less serious violence but
are still in themselves serious matters. Lord Carter expects salaried
partners to spend 85% of their time in the Crown Court, presumably
as advocates, and newly qualified Solicitors 59%. This means that
Solicitors would deal with a large chunk of the advocacy in the
Crown Court and it will spell the end for the Junior Bar with
the more straightforward cases being dealt with in house by Solicitors.
How will they be expected to gain experience and progress? In
10—15 years time there will be a dearth of senior juniors
at the Bar with the result that defendants facing serious charges
will struggle to find a Barrister of quality. At the same time,
Solicitors are being encouraged and incentivised to move away
from the Police Station and Magistrates' Court and into an area
where they have little experience.
7. We already struggle to recruit all levels
of staff especially young lawyers. My wife teaches at Nottingham
Law School and I know for a fact that young people are being actively
discouraged from choosing a career as a criminal lawyer. This
process begins at undergraduate level and by the time students
are studying for the LPC it is rare to find someone considering
a career in criminal law. At best, Carter will cause salaries
to freeze but many people will suffer a reduction in salary as
overtime payments vanish and partnership prospects will become
extremely limited. It is likely that the number of recruits to
this branch of the profession will fall to a dangerously low level
over the next few years. My belief is that Cater will remove a
whole generation of young lawyers from the field of criminal law.
Is this good for the public, the profession and the criminal justice
system? As knock on effect, standards will undoubtedly fall as
more and more unqualified staff are involved in providing advice
to a vulnerable section of the community. Experienced Solicitors
such as myself will either leave the profession or move to more
profitable areas and there are insufficient numbers to step into
our shoes.
8. At a recent meeting in Nottingham, Vera
Baird suggested that we should all work in the Crown Court because
it is "a lot of fun". We felt patronised and were given
the impression that she sees Solicitors as failed or want to be
Barristers. That is not the case. We fulfil a very different role
to a Barrister and she together with Lord Carter fundamentally
fail to understand that. We all have different but equally important
roles to play within the criminal justice system. I am certain
that a survey of the major providers of criminal legal aid would
show that very few Solicitors exercise rights of higher audience.
That should not be seen as a weakness that requires putting right.
This subject in itself could take up a paper of its own but my
experience is that our clients benefit from the input of an objective
third party who works on a daily basis in the Crown Court. To
spread ones self too thinly is not in the clients' interests,
does not promote the provision of quality advice and ultimately
affects the smooth running of the criminal justice system.
9. The Carter proposals incentivise lawyers
to deal with cases at the Police Station as quickly as possible
in return for a standard fee. The quicker the case is resolved
the more attractive the fee becomes when converted to an hourly
rate. Can this really promote the provision of high quality advice?
Of course it can't.
10. Lord Carter believes the average time
it takes to deal with a Police Station case is five hours. In
Nottinghamshire he proposes a standard fee of £196 including
VAT. To begin with it is stated that the average profit costs
in Nottinghamshire is £181. We doubt that that is correct.
Certainly the average case cost at the Nottingham Bridewell where
most of our work takes place is £253. The Police Station
Price Schedule in Lord Carter's report is far too broad and does
not take account of cities within counties or hugely inefficient
Police Stations such as the Bridewell where delays are completely
beyond our control. We are being punished for the inefficiencies
of others ie the Police and Crown Prosecution Service because
Lord Carter believes that these cases should be dealt with more
quickly.
11. The new fixed fee means that we will
suffer a reduced fee on the vast majority of cases. Taking the
5 hour average as a starting point it means that exclusive of
VAT we are being paid approximately £33 per hour. The average
rate at the moment is £52 per hour for advising at the Police
Station and £28.80 for travel. Increased fees are paid to
a Duty Solicitor to take account of experience and advice that
might be provided on serious matters at unsocial hours. As opposed
to London our travelling times are relatively low and the majority
of an average claim is made up of advice. Lord Carter and the
LSC suggest that these proposals will be costs neutral but that
cannot be right and it has never been proven or evidenced to us
in any way.
12. Lord Carter proposes that we should
be paid £196 including VAT for any attendance at any time
for up to 16 hours. The qualification of Duty Solicitor no longer
has any meaning and his Lordship envisages that junior staff will
deal with the majority of Police Station attendances. This could
mean that we represent a defendant on a very serious charge in
the middle of the night or at Christmas/Bank Holidays for as little
as £10 per hour. Can this be fair? Does it bode well for
quality? What other professional or trades person would work for
this sort of remuneration?
13. In a recent interview Lord Carter suggested
that the majority of Police Station attendances were conducted
by ex-Metropolitan Police Officers. This is absolute rubbish.
It may well apply to certain firms in London but it does not apply
where I work and it certainly does not apply to this firm. Again
his remarks show a large degree of naivety and suggest to me that
he has based his report on what occurs exclusively in London.
If research shows that firms of Solicitors in London instruct
agents and do not deal with their own Police Station work and
instruct junior Barristers in the Magistrates' Court thereby duplicating
work and driving up the average costs per case then that should
be addressed. These practices certainly don't occur in my firm
and I am not aware of it being an issue in my area.
14. Going back to the recent meeting in
Nottingham, Vera Baird described the work that we do at the Police
Station as "gateway work". This produced gasps of horror
from the floor and strengthened our view that she fails to understand
what happens in a Police Station.
15. The work that we do at the Police Station
is vitally important. Defendants are often vulnerable—many
of them have mental health or drug problems. Some are even innocent
(!) and thoroughly traumatised and frightened by the experience
of being taken into custody. Carter incentivises lawyers to get
defendants charged as quickly as possible because it is the "gateway"
to more profitable work. This is an abhorrent thought and an insult
to those who founded the modern Legal Aid system in 1949. Lord
Carter takes no account of the painstaking work that is often
done to assist a client in answering the allegations, explaining
his side of the story or putting forward delicate personal information
all of which can often lead to a person being refused charge.
Our role in the Police Station is to assist the arrested person
and promote an investigation which is fair to them. What incentive
can there be for advising a client to put forward information
that will almost certainly require further investigation and being
bailed back to the Police Station when we know that that will
only serve to reduce our profit costs? Lord Carter completely
fails to take account of this work and simply views Police Station
advice as a necessary step in the charging process which can be
paid as a loss leader. Again, quality will suffer and miscarriages
of justice will undoubtedly occur if these draconian proposals
are implemented. More time will be spent in the Crown Court considering
what happened at the Police Station and deciding whether or not
interviews of suspects should be excluded. Any experienced lawyer
will tell you that what happens at the Police Station determines
how the rest of the case runs. Lord Carter fails to recognise
that.
16. We are being punished for the inefficiencies
of others. For instance, the Bridewell in Nottingham is recognised
to be a badly run inefficient Police Station. It handles a large
volume of cases very slowly. It can sometime take 30 minutes just
to get a suspect booked out for interview by a Custody Sergeant
and then returned to him afterwards. There are often long delays
to obtain Crown Prosecution Service advice. This is beyond our
control and repeated representations by our Duty Solicitor Committee
over the last few years have gone unheeded. At the Magistrates'
Court we are often kept waiting because the Chief Executive is
now running fewer Courts and cramming more and more defendants
into those Courts which are running. Often the Crown Prosecution
Service fail to produce a file or have to phone back to the office
for it to be sent down. These inefficiencies cannot be cured by
us and those who cause them are often on fixed salaries with no
incentive to improve their performance. Any systems that we might
implement or savings that we might make are likely to be immediately
undermined by factors beyond our control and which Lord Carter
makes no comments on.
17. Lord Carter speaks of inputs and outputs
and suggests there is an incentive to work as many hours as possible
on each case. He believes that we milk the system carrying out
unnecessary work that does not progress a case and is not an efficient
use of time. I find this an insult and my experience is that the
vast majority of firms simply do not operate in that way. Files
are reviewed by the Legal Services Commission and the National
Taxing Team and work considered to have been unnecessarily carried
out can and is excluded and not paid for. This is quite correct
and I fully support such a system.
18. One of the factors that has led to the
need for a review such as Carter is the fact that for far too
long the LSC and the Government appointed agencies have failed
to tackle those firms which have milked the system and operated
on the cusp of dishonesty. We are now being made to suffer. I
for one have no qualms about opening up my practice for inspection
because I am certain that all the work we do progresses cases
and assists both defendants and the administration of justice.
There is nothing wrong with assessing costs after the event. Carter
sees this as a failing (page 26, paragraph 34). If the system
is operated efficiently and consistently those firms with inefficient
and unnecessary inputs (to use Carter jargon) would soon change
their ways.
19. So far as Crown Court work is carried
out my main concern, apart from the obvious reduction in fees,
is that once again we are incentivised to have clients plead guilty
at an early stage and discouraged from taking cases to trial.
How can this support the provision of quality objective advice?
There is to be no payment for the consideration of unused material
ie the material that the Crown have decided does not assist their
case and which, as we know and history tells us, may well assist
the defence. In serious cases the unused material often holds
the key to success. Why can't consideration of it and indeed other
material be paid for if it is justified and clearly not a money
making frolic that has no potential benefit to the client. Solicitors
will be discouraged from carrying out work previously deemed necessary
because they will be penalised financially for doing so.
20. Firms will be given incentives to use
in house advocates. Lord Carter envisages Solicitors moving from
the Magistrates' Court to the Crown Court. Money that would previously
have been paid to the Junior Bar will now be paid to Solicitors.
We are being encouraged to put aside job descriptions and experience
and keep matters in house rather than send them out to a Barrister
and forgo the fee. That does not promote quality advice and representation
and certainly is not in the best interests of the client.
21. This Government talks about being committed
to stopping social exclusion and the LSC recognises that Legal
Aid clients are often vulnerable and socially excluded with a
variety of problems. I am concerned that these proposals will
inevitably lead to unfairness and miscarriages of justice and
that because our client base generally lacks a voice and the power
to complain it will be many years before their full impact is
known. I appreciate that persons who appear before the Criminal
Courts generally lack sympathy from the public and those who represent
them are not always seen as deserving to be adequately remunerated
for doing so. This makes it much easier for the Government to
push through changes safe in the knowledge that public opposition
will be extremely limited. Hopefully the Select Committee will
see beyond that and recognise the wider implications for the well
being and reputation of our Criminal Justice System.
22. The Committee should consider whether
implementation of these proposals is actually necessary at the
present time. As an experienced Solicitor it is quite obvious
to me that it will become apparent in the near future that a reduction
in expenditure has already occurred for the following reasons:-
(a) Crown Prosecution Service lawyers at
Police Stations and the shadow charging provisions have reduced
the number of charges nation wide by 34%. May firms are already
seeing a reduction in their standard monthly payments and this
will undoubtedly make a significant reduction in the amount spent
on Legal Aid.
(b) Means testing in the Magistrates' Court
from the 2 October 2006 will save many millions of pounds;
(c) The abolition of committal proceedings
and other proposed changes will reduce the number of hearings
and thereby produce further savings.
I cannot put an exact figure on the likely savings
these measures will produce but point a) alone suggests that it
should be substantial. My colleagues have spoken about 20-35%
over the next 18 months. If that is right is there actually any
need for the draconian measures proposed by Carter to be introduced
wholesale?
23. One can see the end goal of Lord Carter.
Best Value Tendering (page 58, paragraph 61). He states that for
Police Station and Magistrates work firms could bid a discount
against the fixed price with a floor to prevent unrealistic bidding
destabilising the market. As we all know, the reality of that
is that firms will have no option but to bid at the floor in order
to obtain contracts. That in my submission will spell the end
for quality publicly funded work in this country. My only consolation
is that at least we no longer impose the death penalty.
October 2006
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