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May 01, 2008

The Demise of Criminal Legal Aid: Jan Davies explains how a suspect's right to legal representation is being curtailed - and why the public has taken no notice

Posted by Jan Davies

Jan Davies - a solicitor in the criminal courts for over 20 years and the author of The Criminal Advocate's Survival Guide - shows that a suspect's right to legal representation is fast being curtailed. Yet this important change to our whole system of justice has gone largely unnoticed.

There are reports of chaos in many police stations as a result of the Legal Services Commission insisting on calls for legal assistance being channelled through a call centre. Some may remember the Legal Services Commission, or LSC as it is commonly known, as the Legal Aid Board: it is the body which administers the legal aid scheme.

Call centre staff have often been using contact details which are out of date and bungling referrals through insufficient knowledge of what is required. LSC spokesmen have dismissed the problems as teething difficulties, but the muddle was all predictable. (See my earlier, CDS Direct - call centre advice for suspects in custody: Jan Davies explains how a little noticed reform of the legal aid system will undermine a suspects' right to legal representation ).

The rules for the use of the call centre are farcical: for example, if a solicitor is instructed by a suspect's family that he is in police custody, they can attend without going through the call centre: if they are contacted by the man himself they should not. The Criminal Law Solicitors Association is collecting the tales of inefficiency and encouraging its members to make formal complaints.

Unfortunately, this area in which criminal legal aid work is being made inefficient is not the only way in which the LSC's constant interference is causing difficulties. Its contracts for barristers to work on very high costs cases (frauds and other cases which result in lengthy trials) have been treated with contempt by members of the Bar as inequitable. Out of 2,300 barristers who were offered contracts to undertake such work only 203 have signed up.

The question the taxpayer has to ask is whether because a service is publicly funded it should be micro-managed in the interests of control, even where this results in additional cost, and whether the independence of our legal system is worth preserving. Turning what is a public serving provided by private firms into a nationalised service has been shown to be expensive, and it is surely dubious whether those prosecuted by the State should have the State to defend them.

On 14th January 2008 new contracts for criminal legal aid work came into force. All solicitors' firms doing such work had to indicate by 31st October 2007 that they would be prepared to sign the contracts, and had to give this indication before the contract had been sent to them, In July new contracts of 18 months' duration only are to be issued and then the system is to be plunged into competitive tendering. The LSC prefer to call this Best Value Tendering, presumably on the basis that this sounds softer, but the process is to be competitive and is intended to drive prices down.

14% of solicitors' firms who were doing criminal work are said to have decided not to bother continuing. Some new firms have signed up, but these are likely to be sole practitioners or very small firms fragmenting from those who have given up altogether, operating on shoestrings from home or with very short leases and intending to give up when competitive tendering is introduced.

On 29th November 2007 the Commission issued a press release. It was an interesting piece of spin. The Commission described a Court of Appeal judgment as a welcome "clarification" and said:

This now enables us to move forward with greater certainty.
You could be forgiven if you read the press release at speed for thinking that the court case had almost been the Commission's idea, but the reality was that the Commission had been sued by a respected firm of solicitors in Reading, Dexter Montague, and also by the Law Society and had lost on all points.

The contract for civil work contained clauses which allowed the Commission to amend it almost at will. While it is inevitable that during the life of a long contract there will have to be some amendments in response to changing circumstances, the Commission had given itself a very wide power to amend it indeed, to the point where they would be able to re-write the contract. The Court of Appeal described the contracts as "an extreme case", and the Commission will now have to pay not only the costs of the entire case, including the costs of the Law Society, but also damages. It will be interesting to know what the ultimate cost of all this will be to the taxpayer.

You might have thought that having lost so decidedly in court the Commission would have taken the opportunity to reflect and to consider how the judgment impacts upon clauses at present in the criminal contracts issued in January. There was no sign of any humility in their press release, which contained the usual buzz phrases about a "sustainable" legal aid system and "progressing" with reforms.

Even after the court judgment the criminal contracts still contained a clause which said that the Commission may "at our discretion" add to the specification of what is required under the contract "at any time". There were provisions for consultation to take no longer than 6 weeks, or even as little as 21 days, but the amendments could be with individual contractors as well as generally. Put bluntly they wished to amend the contract whenever they felt like it and with whomsoever they pleased. They also wished to terminate the contracts at short notice, but said they would do so:

only when we consider it necessary or desirable to do so in order to facilitate a reform of the Legal Aid Scheme.
So it would make no difference whether a firm is providing a good service, and the contracts do not even give security for the six months of their duration.

It is impossible to run a business with this uncertainty. Firms with long office leases will be seeking to escape from them. Staff will not be offered any sort of job security. No sensible person is going to want to enter criminal legal aid work. The Commission talks about firms needing to "restructure", by which they mean sacking the experienced and qualified staff and employing low paid people to do the bulk of the work. A person with a problem is unlikely to see a solicitor at the start of his case.

In 1994 Mike McConville, Lee Bridges and others published Standing Accused. It was widely read, particularly by the Legal Aid Board which was said to have funded the research. The book describes the behaviour of what I would call the bucket firms - firms which employ a large number of unqualified staff, in which files are passed around like unwanted parcels and there is little care of cases. The abuses it described were very familiar to those associated with large firms, yet the book's illogical conclusion was that large firms were to be preferred. This theme has been taken up enthusiastically by the Legal Services Commission, although as the House of Commons Constitutional Affairs Committee noted in a very thorough and thoughtful report published in May 2007, there is no evidence to support the contention that quality is provided by the large firms.

In any event, although the Commission may want to deal with large firms, the reality is that they are not there. Lord Carter noted in his report published in 2006 that 33% of criminal legal aid firms in 2004-5 had an income of less than £100,000: it can be presumed that these were either sole practitioners or very small firms indeed.

Criminal work and established large firms do not mix. In a traditional firm the partners are concerned with fee targets. The criminal work is rightly seen as low paid and the partners will not want the Commission's auditors crawling all over their office, ticking boxes and rifling through files and telling them how they should run their business. The sole practitioner will typically be someone who began his career in a traditional firm, left when that firm decided to give up crime and set up on his own, being prepared to exchange a low income for the satisfaction of running his own ship. (I am using the word "his" to describe the solicitor, but of course it could also be "her". Women who have found it difficult to achieve partnership in a male dominated firm have made a success of running their own small business.)

The situation is different in London and in some major cities like Liverpool, but in the small or medium sized town you are unlikely to find a large criminal firm. The patchwork of small firms has served the system well, and there is considerable anger at the prospect of being subjected to a competitive tendering process which will undermine the good relations that firms that have with each other. Those who maintain that large means quality usually have no knowledge of the informal working relationships between small firms. We all have each other's home numbers and can easily get help with any police station or court emergency.

I would not expect my doctor or dentist to have to submit to competitive tendering. I know that my doctor is not a businessman but first and foremost a professional, and I want him to concentrate on my health. Similarly, I would not want my dentist - always supposing that I could find someone who still did NHS work - to be looking over his shoulder at auditors rather than concentrating on my teeth. I would also know that once a doctor has been refused a contract he is not going to be there the next time there is a round of competitive tendering - and it is proposed that competitive tendering for legal aid contracts should be every three years.

But sadly, the general public has little regard for solicitors. It is not until a member of their family is in trouble with the police that anyone realizes that solicitors do provide a service. People may be shocked by the treatment of lawyers in Zimbabwe or Pakistan, but their concern rarely extends to interest in our own legal system. Personally, I am considering setting up in business on Brighton Pier, or some other suitable place, and telling fortunes. It would be less stressful and possibly more secure.

Jan Davies has been practising as a solicitor in the criminal courts for over 20 years. She was a founder member of Reading Solicitors Chambers and between 2001 and March 2007 was a senior crown prosecutor in Oxfordshire. She now practises as an advocate in both magistrates and crown courts as an associate member of Reading Solicitors Chambers. She is the author of The Criminal Advocate's Survival Guide (Carbolic Smokeball Company, 2007).

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Nu Labour strike again.

Posted by: L. Ron Cupboard at May 2, 2008 07:29 PM

Nonsense. Lawyers can not be trusted. Any handing over of public funds to them must be carefully regulated by those who have nothing to do with that profession. They know best.
Does any private individual trust a lawyer they have engaged to bill them fairy and transparently? No!
No more so should the state which is only the sum of all of us

Posted by: jjames at May 6, 2008 11:49 PM

Tendering is good because it will drive the price down especially since there is only one big purchaser. It is like a big supermarket getting farmers to compete on price while enforcing quality. What is good for Tesco is good for Britain. in this day and age the so-called free professions are an anachronism. Justice is a commodity like any other and subject to the same rules of supply and demand. The Bar Council is just a trade union, or as Adam Smith put it a conspiracy against the public. It is time the barristers learned that there is no such thing as a free dinner. Why not simply abolish the Bar altogether? Let all criminal work be done cheaply by legal auxiliaries with an appointed official to check up on them

Posted by: hilbert at May 7, 2008 10:57 PM

If the government is paying for a defending lawyer then the government not the defendant has the right to choose who the lawyer is . He who pays the piper calls the tune..Choice is a luxury the indigent can not afford and one the government should not subsidise Most legal aid cases are so routine that they are best handled by large firms who have economies of scale. We have big hospitals and big schools with thousands of pupils - why not big law firms ? OK so the defendant finds them impersonal and uninterested but he is not paying

Posted by: Jack at May 9, 2008 01:56 AM

Justice is NOT a commodity to be bought and sold. Justice is one of the pillars of the welfare state, and can only be found if people have access to proper advice. Would we applaud the government for investing in education if they refused to pay teachers a fair amound, or in health if they won't pay doctors and nurses. No, and neither should we applaud them for destroying access to legal advice for tens of thousands of people.

Incidentally hilbert, the bar council is nothing to do with solicitors. They are the body which represents barristers.

Posted by: David Watts at May 9, 2008 11:14 AM

We are already, as solicitors, subject to careful regulation, if we claim funds from the taxpayer, we should and do expect that. We do not regulate ourselves in this area.

We already are paid fixed fees for police and court work, we are not paid for the amount of work done.

The legal aid budget for solicitors (police station and magistrates court) is under control. It is not forever growing, the LSC have accepted this fact.

These facts have not been appreciated by those who posted before. Check the facts first, not any assumptions you may unwittingly hold.

Justice simply can not and should never be seen as a commodity.

Competitive tendering is not a good idea. Evey independant source to look at this has repeatedly cautioned against it. It will not deliver quality, it will not assist the Government/taxpayer at all.

Does anyone think if tesco only had 1 farmer in a given area it would be able to drive the price down. It would get to the point the farmer would say look i can provide this product the price is X you pay it or you do not get the product. What do the govt do then???

Posted by: TBurrough at May 9, 2008 11:21 AM

I am a criminal lawyer and sole practitioner. I decided to qualify as a result of the publication about miscarriages of justice in the last quarter of the 20th century. The rights of the individual when prosecuted by the state must be upheld fearlessly. In this country we are proud to state that a person is innocent until guilt is proved. Under-resourced, low paid and badly trained "auxilliaries" certainly are not the people I would want to prepare my defence if I was innocent or mitigate on my behalf if I was guilty. All the work I do is paid through legal aid. The changes in the funding of criminal legal aid have reduced my income by about 25%. If I was claming £100,000 per annum from the legal aid fund that would be a blow to a small firm like mine. But my claim is for about half of that amount. That isn't money directly in my pocket but funding to run my business. There is, frankly, no "profit" in my practice. So why do I continue? Because it is important work which I want to do and because I can set the limit of how much work I take on.

To be a member of the police station duty solicitor rotas I have to be willing to deal with each case for a flat fee of just under £190. You might think that's okay. But I don't get paid for my travel time and, like many, I live some distance from the local police station. So if I am called out at 2 am my travel to the station is unclaimable. And if I am at the police station for one hour, three hours or 12 hours, I will receive only £190. The more serious the case, the longer the investigation. If you were charged with a serious offence, how would you feel about being represented by a person being paid a flat £190 for, say six hours' attendance?

Fortunately for you now, you will be represented by a trained legal aid lawyer, most probably a qualified solicitor. A professional who is committed to ensuring that your rights are protected and that the state produces the evidence on which it founds any prosecution of you. That representation will carry on to the end of your case - whether it ends in the police station or after a full Crown Court trial. So you can feel pretty secure.

But I don't fancy your chances in five years' time. I'll have retired by then as will about 50% of the legal aid lawyers doing criminal defence work. There is no indication that we are being replaced by newly qualified staff in the numbers required to maintain numbers required.

My suggestion is that if you think the long arm of the law is going to reach out and grab you for whatever reason, make sure it reaches out sooner rather than later.

Posted by: anita at May 9, 2008 11:22 AM

David is right.If access to Justice means anything, it should allow people with no money the same access to proper representation as those with unlimited funds, unless people are happy with the rich getting a better standard of justice, simply because they can pay. This Government is rapidly moving to a 2 tier justice system. The State has all the resources to prosecute people via the police and the CPS, and cutting funding for legal aid merely makes the system more unfair.

Posted by: Ian Phillip at May 9, 2008 11:59 AM

The issue of criminal legal aid flies so low below the general public's radar, that it is only when people find themselves or their loved ones in the police station that it even becomes relevant.

Make no mistake that the police will not pass up an opportunity to dispose of a complaint of a crime. You do not have to be the usual ASBO candidate. You do not have to have done anything wrong. Somebody only has to make a complaint against you, and your reputation and employment prospects could be damaged for the rest of your life.

The whole system from arrest to trial is designed to elicit guilty pleas - all to help achieve manifesto pledges regarding bringing offenders to justice.

Sadly those who proceed without representation (often with the honourable reason that "I've done nothing wrong") frequently find themselves as fodder for police targets. By the time a solicitor is involved it is too late.

Criminal legal aid solicitors make up about 3-4% of all solicitors and are the most highly regulated branch of the profession. Nationally there is a dearth of appropriately qualified solicitors able to undertake the work, and the numbers are dwindling.

It does not bode well for those who will in the future find themselves in the wrong place at the wrong time, or involved with the wrong people, or disputing an inaccurate account or allegation. The state's thirst to criminalise people does not discriminate between your usual criminals and your ordinary joe public.

Personally, I would want to be certain that the person who represents me, the only person that will stand up for my rights during the process, is quailifed to do so and properly motivated.

Posted by: iestyn at May 9, 2008 01:50 PM

Get real, lawyers Switch to something more productive valued- tort, tax, patents, corporate law, libel etc
The poor get crap lawyers for the same reason they get bad teachers, bad GPs, junk food - they have no money.
That is how it is.
Middle class people do not qualify for legal aid . In civil cases we are terrified of being sued by a pauper. In criminal cases you would not get costs even if acquitted because the judges hate us. Legal aid is no help to us at all

Posted by: jjames at May 10, 2008 02:15 AM

Anyone entering the legal profession will only go for criminal law if they want to put something back into the community: the pay structure sees to that already. What the government wants to do, though, is to cut back the service without actually saying as much. So we see police station advice done by call-centres 200 miles away. Legal aid is getting progressively more bureaucratic and hard to get, which means your lawyer has to spend more time filling in forms. Sure it happens in other professions, but does that make it any better?

Posted by: Jeremy Hawthorn at May 10, 2008 08:32 AM

Does Legal Aid have a bad press in the public eye because of a few high-profile cases where some outrageous villain, more than likely a foreigner who has acquired British nationality, has been able to play the system and get away with blue murder?

Posted by: Robert H. Olley at May 10, 2008 11:28 AM

I address this to those who have made negative comments about this article. The Government is not trying to 'reform' it is trying to suppress independent legal aid lawyers as part of the home office/ACPO police agenda. If you wish to see the end of civil liberties, then simply remove the ability if the citizen to adequately defend themselves. How better to do that than driving good legal aid lawyers out of business and driving down the quality of those surviving under the 'best value tendering' bidding process. What sort of a market is it where there is only one party controlling the cost? The Government will not permit bids to rise above a ceiling they determine. In the meantime 80% of the population are excluded from legal aid that their taxes fund. It is disgraceful.
It is frankly a profession that is near to collapse. See the Otterburne report and both the LECG reports which reveal a legal aid profession in financial crisis. People who have commented adversely on this site about legal aid lawyers should read these reports before commenting further. There is a vast inequality between money spent on prosecutions when compared to the defence spending. There is no longer 'equality of arms'.You are entitled to your opinion but it is frankly of little value if based on pure ignorance and bigotry. People never think unpleasant things can happen to them. You would change your tune in seconds if falsely accused of a crime. You deserve the third rate skeleton service you wish for. Pity about the rest of us though! We should all today write to our MP's to demand adequate funding of legal aid before it is too late.

Posted by: Robin Murray at May 10, 2008 03:41 PM

Solicitors and barristers are paid fixed fees for the work undertaken. This has been the case for Court work for about 10 years. Recently, Police Station work and the preparation of cases by Solicitors for the Crown Court where advocacy is conducted by a barrister or solicitor-advocate have been fixed.

The cost is controlled. Best Value Tendering has not been used for the provision of services in any sphere. In many ways the civil and criminal justice systems will be the guinea pigs if BVT proceeds. I doubt it will.

Solicitors' fees-whether in contentious cases or in non-contentious cases can be assessed by a Judge. Any excessive claim for fees will usually result in an investigation by the Solicitors Regulation Authority. A client can complain to the Legal Complaints Service. An ombudsman supervises how the LCS work. There is a Commissioner to supervise how the SRA works. We are so regulated that one wonders if the high levels of bureaucracy are appropriate when teh fee is fixed.

What is the fat fee Solicitors are paid for assisting a person in a police station?

We live in an age of commentary-unfortunately too often the commentary is not based upon fact or research but upon prejudice.

Who needs a solicitor? You-when you have been arrested for and accused of a crime you did not commit-or even if you did commit it. Why? Because the Police, CPS, Probation and Courts cannot be trusted to always conduct the case against you in accordance with English law. Solicitors are necessary to ensure this happens-and there is a price-a very cheap one-that the State should pay, as it is the State that wishes to take away your liberty.

Posted by: Michael at May 10, 2008 08:08 PM

The middle classes do not get legal aid. Two of my colleagues have been prosecuted, one for an alleged minor sexual assault and the other for allegedly driving while over the alcohol limit. They were both acquitted but neither received anything for their defence. They were hard working middle class chaps and did not qualify for legal aid. At the end they did not get costs. Neither are wealthy and they were badly out of pocket. Another colleague in a divorce found that her shiftless husband got legal aid and she was refused it because she was earning slightly too much.
Why should ordinary middle class people and indeed prospering tradespeople be sympathetic with such a system? There is nothing in it for us. It is no good lawyers saying “How would you like it if you were arrested? We know only too well that legal aid is available only for the lower class thug .

Posted by: james at May 13, 2008 09:13 PM
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