House of Commons - Constitutional Affairs

Select Committee on Constitutional Affairs Written Evidence

Evidence submitted by the Rt Hon Lord Justice Thomas, former Senior Presiding Judge (LAR 225)

I. IMPACT OF CHANGES TO LEGAL AID SYSTEM ON CRIMINAL JUSTICE

1. The interests of the judiciary in the legal aid system as regards criminal justice are:

(a) A profession of sufficient size and skill to provide good advice and case preparation prior to trial and effective advocacy in court.

(b) Advocates in individual cases of the quality needed to do the level of case in question; this is particularly important in crime as different qualities and competencies are required for different levels of case.

(c) Fees are set in such a way as to encourage efficient and expeditious preparation prior to trial and the efficient conduct of the case; there should be no perverse incentives.

2. The level of remuneration is not a matter on which the judiciary have commented to the Carter Review, as it would have been inappropriate for them to do so; that remains the position. It is, however, axiomatic that the overall levels of remuneration must be such as to ensure that the criminal justice system has lawyers of the requisite quality, both for prosecution and defence work, with a proper structure for career progression. The system gains much from the long established practice that an advocate often prosecutes and defends.

3. The judiciary have taken a close interest in quality and in the structuring of the fees.

(a) As you may be aware I have been chairing meetings on the introduction of a Quality Assurance for Advocates Scheme since August 2006 under Recommendation 5.3 of Lord Carter's report.

(b) The regular meetings on the scheme's development have been attended by representatives from the Solicitor's Regulation Authority (SRA), Bar Standards Board (BSB), the representational side of the Law Society and the Bar, in addition to the CPS, LSC and DCA.

(c) After much hard work and co-operation a framework has been agreed, from which the full details of the Quality Assurance for Advocates Scheme can be developed. I would like to record my considerable thanks to all involved for their hard work.

(d) This framework is set out in a working paper which members of the representational and the regulatory sides of the Law Society and Bar Council will be putting to their respective bodies.

(e) The intention is to produce a developed scheme for consultation by April 2007, which will be subject to a full Regulatory Impact Assessment.

(f) The scheme will enable quality assured chambers and firms to assign competency levels to an advocate who works for or in them. This competency level will be assigned after careful consideration of all evidence submitted on the advocate's performance and against objective criteria of competencies, based on the current quality assured CPS and QC systems.

(g) Chambers or firms will have to check that the competency level of an advocate is sufficient for the complexities of the case. This will ensure that the right advocate is taking on the right case, and quality representation is assured for all publicly funded legal aid cases.

(h) The process of peer review conducted by each profession will ensure that chambers and firms are assigning the correct competency levels to advocates, and that cases are taken by advocates with the right level of behaviours and skills.

(i) The scheme is designed to be light-touch, and is intended to be straightforward for practitioners, chambers and firms to operate.

(j) DCA, LSC and CPS officials have also been involved in formulating the paper and are confident that the current QAAS will answer the need for a system to be in place which ensures good quality representation for publicly funded defendants.

(k) The scheme will be up and running before the introduction of price competitive tendering, and will cover publicly funded criminal legal aid litigants in the first instance. Such a system will be essential when the scheme becomes subject to competitive tendering.

(l) It may be extended to cover publicly funded family and civil litigants, and ultimately all publicly funded litigants.

4. As to the way in which fees are set:

(a) The Carter proposals for a single fee for most cases in the Magistrates Courts with limited add on fees provides a proper basis for fees for criminal cases and is consistent with the reforms being made in the Magistrates Courts; the same is the case for Crown Court cases. A careful watch will need to be kept on the way in which this operates in practice; for example the system to pay a proportion of the fee in a case in the Crown court when a plea is made prior to trial will need careful monitoring to ensure that the proportion of the fee paid, which differs depending on the timing of the plea, has been correctly set.

(b) As to the VHCC cases, the LSC will manage the expenditure on each case under arrangements which need to be much more robust than existing arrangements. To help in the management of these cases by the court and the LSC, Lord Justice Hughes chaired a committee (established as a result of Carter recommendation 4.21) which has formulated proposals for timetables for the pre-trial period and for the trial and for monitoring lapses. It is intended that the timetable for the pre-trial period and the estimate of the trial length should inform both prosecution and defence funders as to the work necessary.

II. COST DRIVERS IN CRIMINAL JUSTICE AND THEIR IMPACT ON THE LEGAL AID BUDGET

5. There is no doubt that the cost of criminal cases has been increased by:

(a) Legislative change of increasing frequency and increasing complexity. Much of the complexity is due to unnecessary circumscription of judicial discretion in legislative provisions. For example, in sentencing a judge is compelled to spell out a number of matters when passing sentence. A different approach to legislation is needed which would provide stability and simplicity.

(b) Application of over complex procedure to cases in the Magistrates Courts; much is being done to remedy this without legislation. The judiciary, the police, CPS, HMCS/DCA/OCJR and the professions are working jointly to speed up and simplify the way cases are conducted in the Magistrates Courts from the time of arrest to trial.

(c) Failure to appreciate the importance of and to comply with the criminal procedure rules, failure to comply with court orders and poor case preparation; this sometimes is the fault of the CPS and sometimes the fault of the defence. The judiciary are taking a robust line in relation to such failures and hope that the system for quality assurance will deal with those lawyers who have a record of repeated failures.

(d) An unnecessary number of pre-trial hearings; the judiciary, CPS HMCS/DCA/OCJR and the professions are working together to reduce the number to an absolute minimum. The fee structure proposed by Carter provides an incentive to keep such hearings to a minimum.

(e) Trials, in simple and more complex cases, taking longer. The judiciary is attempting to reverse this trend by ensuring issues are identified and a strict watch is kept on the time a trial takes.

(f) The disclosure regime. The protocols on disclosure in the Crown and Magistrates Courts which were prepared by working parties chaired by the judiciary are addressing the abuses of the way the current legislative regime is operated.

III. JUDICIAL CONTRIBUTION TO THE CONTROL OF COST OF CRIMINAL CASES

6. The conduct of the business of the courts is the responsibility of the judiciary; the judiciary is well aware of the need to ensure that the resources made available to the criminal justice system are efficiently used.

7. The judiciary have been working with HMCS/DCA/OCJR, the CPS, police and the professions to improve the way in which the criminal justice system operates and thus ensure the more efficient use of resources. In addition to the matters to which I have referred, there are the following further examples:

(a) The long and complex case protocol.

(b) The terrorist cases protocol.

(d) Work on the proposal for virtual courts.

(e) A review by the Resident Judges of Crown Court practice.

Khodr Chaaban

Jan Jisl

R v K & others

November 2006