2 The delivery of criminal legal aid
8. Legal aid solicitors reported a wide disparity
in profits made from criminal legal aid. On average, solicitors'
firms reported that they made 18.4% profit from criminal legal
aid, and 37% of firms made more than 20%. This rate of profit
was significantly higher than for many other industries.[16]
However, 16% of firms reported that they made no profits at all
from legal aid.[17]
9. The Commission sets the fees it pays to suppliers
without having good knowledge of the costs borne by suppliers,
and it was unable to account for the wide disparity in profits
derived from legal aid work by solicitors.[18]
The Commission argued, however, that it understood the legal aid
supplier base and drew information from sources including direct
discussions with solicitors and barristers, as well as a newly
established central database.[19]
10. The Commission also suggested that its ability
to understand the supplier base and get value for money from it
would be improved by its plans to implement Best Value Tendering
for criminal legal aid.[20]
One week after our hearing, however, the Department announced
that it had invited the Commission not to proceed with the planned
pilots for Best Value Tendering. The Department said that it had
been persuaded by representations made by the Law Society and
legal aid firms that the scheme proposed was unlikely to lead
to the creation of an efficient legal services market as envisaged
by Lord Carter.[21]
11. The Commission took the lead on the assessment
of the quality of legal aid provision, and one of its key tools
for assessing the quality of solicitors' legal aid work was a
system of independent peer review. However, it believed that ultimately
quality assessment was the responsibility of the regulators of
legal services.[22] The
Commission planned to move to a risk-based system for peer reviewing
the work of legal aid solicitors, which will involve a smaller
sample of reviews based on the Commission's analysis of where
the risks to quality are highest.[23]
12. The Committee was concerned about the impact
upon the quality of publicly-funded advocacy of an increased number
of solicitors conducting defence work at the Crown Court. They
were also concerned about the impact that this increasing use
of solicitors in the Crown Court would have upon the long term
sustainability of the junior Bar. Although no measure of quality
was in existence for publicly-funded defence work at the Crown
Court, the Commission informed us that it would be piloting such
a scheme in 2010. This was planned to apply to legal aid work
conducted at the Crown Court both by barristers and by solicitors.[24]
13. Even though everybody was entitled to free
legal aid at police stations, only half of people took up this
right. The Commission could not tell the Committee why people
chose not to take up this right because they had not collected
the views of people held at police stations. One suggestion was
that people were put off claiming legal aid by pressure put on
them by the police.[25]
The Commission told us that it would shortly embark upon a survey
of 10,000 custody records across England and Wales to understand
the reasons behind this low take-up.[26]
It also acknowledged that increasing the take-up of legal aid
at police stations would be a challenge as there was a fixed budget
for legal aid.[27] It
did not collect data itself on the consequences of defendants
moving through the criminal justice system without legal representation,
but did receive information from HM Courts Service on unrepresented
defendants in court.[28]
14. The largest and most expensive cases at the
Crown Court accounted for almost 10% of the criminal legal aid
budget. The cost of these cases was driven in part by the high
fees paid to a small number of barristers, particularly Queens
Counsel, which can result in an individual barrister earning up
to £1 million a year from the criminal legal aid fund.[29]
The high cost was also driven by the considerable amount of time
it took these cases to go through the courts.[30]
To control the cost of these cases, the Commission had introduced
a separate contracting arrangement in 2001. This involved managing
cases through individual contracts and agreeing with solicitors
and advocates in advance the work a case required and that the
Commission was willing to pay for.[31]
15. The Commission was unable to demonstrate
the value for money of this contracting arrangement for anything
other than the most expensive Crown Court cases, and it had not
centrally assembled all the data necessary to make this evaluation.
The Commission assured the Committee that this situation had been
rectified and data was now being brought together. The Commission
announced plans to reach a decision on how to fund the most expensive
Crown Court cases in future in July 2010. Options that it was
considering included abandoning its contracting arrangements in
favour of expanded use of graduated fees.[32]
16 Qq 60 and 63 Back
17
C&AG's Report, The Procurement of Criminal Legal Aid in
England and Wales by the Legal Services Commission, para 1.13 Back
18
Qq 60 and 63 Back
19
Qq 7 and 8 Back
20
C&AG's Report, The Procurement of Criminal Legal Aid in England
and Wales by the Legal Services Commission, para 8 Back
21
Ev 28 Back
22
Qq 10-13 Back
23
Q 127 Back
24
Q 11 Back
25
Q 127 Back
26
Q 56 Back
27
Q 57 Back
28
Q 102 Back
29
Ev 12 Back
30
Qq 14 and 78-85 Back
31
C&AG's Report, The Procurement of Criminal Legal Aid in
England and Wales by the Legal Services Commission, para 3.11 Back
32
Q 85 Back
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