Transforming the Criminal Justice System

The Ministry of Justice’s consultation on Transforming legal aid misses the point.

Legal Aid is not the problem. The problem is the Government policies which drive legal aid spend.

How is legal aid granted.

Everyone who is arrested who is to be interviewed by a constable is entitled to be advised and represented by a Solicitor before and during the interview process. Most people are upon arrival at a Police Station to inform the Custody staff of the name of a solicitor or to ask for the duty solicitor and to obtain advice via a phone call. The police can decide not to allow this if they are busy or the suspect is drunk or disruptive.

About half of those detained by the Police choose to deal with the interview themselves. Some have been encouraged so to do by Police Officers who suggest that asking for a solicitor will cause delay. Actually when arrested, as explained, the suspect upon arrival at a Police Station can speak to a Solicitor over the phone. That right is rarely explained well to suspects.

If arrested for drink driving, being drunk and disorderly or on a warrant one’s rights are limited to a phone call to the Criminal Defence Service. If the person is to be interviewed they can have a solicitor present.

For all suspects legal aid is automatic.It is not means tested.

In the Magistrates’ Courts legal aid is applied for on CRM14. CRM15 is also submitted if the applicant does not receive a passporting benefit. Legal Aid is means-tested and is also subject to the Interests of Justice test. In essence the applicant has to be vulnerable, incapable of speaking English or at risk of jail to qualify. There are plenty of people who appear in the Magistrates’ Courts as a defendant who represent themselves or who pay to be represented by a Solicitor or Barrister. If successful ie if acquitted, a privately paying defendant may ask for a Defendant’s Costs Order which results in a claim being submitted on a costed basis at legal aid rates, which usually results in a contribution being received towards costs as opposed to full reimbursement.

In the Crown Court legal aid is automatically granted but is subject to a financial assessment to establish how much, if any, contribution has to be made by the defendant towards legal aid. A convicted defendant can be ordered to pay costs. If acquitted the contributions are refunded. The contribution is designed to cover the costs of being prosecuted and defended. The Magistrates’ Court staff on behalf of teh Legal Aid Agency process applications for legal aid.

What are the fees

The fees are set out in the Criminal Remuneration Regulations. The fees are fixed although there is some scaling.

A claim for the fee is submitted electronically to the Legal Aid Agency and is paid to Solicitors and barristers separately.

Periodically the LAA audit files to ensure claims are being submitted correctly and that files are being conducted correctly.

Only firms with a contract with the LAA can undertake criminal litigation work. Solicitors have to be accredited to do the work.

Over the years, in a drive to maintain and improve quality, the LAA and the Regulator have encouraged Solicitors to specialise. Some Solicitors have acquired a qualification as Solicitor Advocates or Higher Courts Advocates which entitles them to appear in the Crown Court with the same rights of audience as Barristers. Solicitors have always had restricted rights of audience in the Crown Court to make bail applications and to appear on behalf of an appellant or a defendant who has been committed to the Crown Court for sentence. Appeals from the Magistrates’ Courts are heard in the Crown Court by a Judge and two Magistrates.

Juries do not sit in the Magistrates’ Courts. Cases are heard by a District Judge or by two or three Magistrates. Only in the crown Court can a defendant have a jury trial.

About 95% of all criminal cases are dealt with to conclusion in the Magistrates’ Courts. This attracts about 50% of the legal aid budget.

Very High Costs Cases are dealt with by a contract given to specialist firms with all work and expenditure controlled and approved by the LAA.

This link will let you see the hourly rates and fee structures http://www.legislation.gov.uk/uksi/2013/435/contents/made

This link will let you consider the spend of legal aid over the last few years

http://www.crimeline.info/uploads/docs/vandvmarch2013.pdf

This is the link to the MoJ’s “consultation” https://consult.justice.gov.uk/digital-communications/transforming-legal-aid

There have been many blogs, articles and commentaries about this issue. There is a lot of traffic on twitter and at least two petitions.

So what is wrong with the proposals?

The proposals remove client choice. The idea is that contract bid winners shall be allocated clients because suspects who ask for legal advice will be allocated to a provider and will have to stick with that provider all the way through the Justice process unless the LAA agree to a move to another provider of their choice. I use the term “provider” because non solicitors will be able to offer litigation services under these proposals.

There will be a huge reduction of firms (or providers) from 1600 to 400 which will affect the availability of local advice near to a Police Station or Court which is the case now. Firms mostly stay local. There are some regional firms but most serve the local community and offer other legal services which may also disappear if the proposals go through.

There is no guarantee that these proposals will save money. The MoJ can only guarantee a share of the market in each bid zone. The MoJ cannot guarantee volumes. Each bid will be capped at at least 17.5% less than current fees and the fee structure simplified so the fee for a guilty plea and for a two day trial would be the same. Bidders will be bidding for a contract in each bid zone which basically equates to each Police force area. For Northumbria the plan is for 10 contracts. There will be “quality criteria” for the first sift [PQQ] stage but no guarantee of an office near each Court. so how will a suspect access legal advice?

The main problem with the proposals is that it seems to rely upon old research (Lord Cater’s report), assumptions about volumes and rhetoric which perpetuates the myth that the number of legal aid lawyers is linked to the rise in legal aid spend. The truth is that Government policies drive legal aid spend. Arrests and punishment are governed by Government policy and Police action. The numbers being processed by the Police have fallen as have numbers coming to Court. Cautions and Restorative Justice have been used to reduce numbers coming to Court. This will affect the legal aid spend because there can only be a claim for legal aid if a person is arrested and interviewed and then another one if a person appears in Court and legal aid is applied for and granted.

My view is that local access to advice, the quality of advice and the role that Solicitors play in ensuring the smooth running of the system is too important to be allowed to slip or disappear. Solicitors are paid fixed fees. This ensures that they smooth the way for the right result to be achieved. A person employed at a reduced salary under the bid proposals or indeed the owner of the business will have no incentive to make things work. Profit will be at the top of the agenda.The contracts will last for 3 years. What is the incentive to build a business, invest in the business and maintain a high standard? None. Indeed the MoJ recognise that in paragraph 23 of the Impact Assessment. It is recognised that quality might suffer. Isn’t quality important?

Strangely the MoJ have selected those people with more than £37500 to pay the costs of defending a charge in the crown Court and to not be reimbursed if acquitted. It seems very unfair that a person could be brought to financial ruin when they have been acquitted. Such a person would not at present obtain legal aid for a Magistrates’ Court case.

So what could the MoJ do?

1 Change the scope of legal aid. Who should be entitled to it? Should everyone in the Police Station be entitled to legal advice and representation? Perhaps “no” if more offences did not attract custodial sentences no matter how many times committed.

2 Increase the number of offences which cannot result in a custodial sentence save where there is breach of the Court imposed punishment.

3 Courts alone should impose Conditional Cautions and order or facilitate Restorative Justice. One reason for the “transformation” of criminal legal aid is to improve the justice systems credibility. The Police cannot be trusted to impose any punishment or to deal with breaches.

4 Reduce the number of Either Way cases ie those cases where the Defendant can choose Crown Court. Theft or Fraud under £12500 for instance should be a Magistrates’ only case (Summary only).

5 Reduce the right to jury trial by introducing Judge trials. With such trials there should be an incentive of 15% reduction on any sentence which would otherwise be imposed after a jury trial.

6 Abolish VHCC and introduce a fixed fee structure.

7 Extend Magistrates Court sentencing powers to 18 months for a District Judge and 12 months for a Magistrate.

8 Impose costs orders for defence and prosecution costs on the convicted and remove the driving licence of the convicted until the costs are paid. Immediately charge the convicted person’s property (if any) with the costs. These two things would be in the vast majority of cases an incentive to pay the costs off quickly. For those who cannot pay their costs then instead of deducting from benefits 3 months unpaid work supervised by Probation should be imposed.

9 Allow defendants, not at risk of custody, to cross examine witnesses. That would save money.

If the Government isn’t willing to change its policies which actually drive up or down the legal aid spend then why should they be allowed to interfere with the market, impose a system that the market has not created, be allowed to remove local access and choice and to force suspects and defendants to be represented by sub-standard advisers and advocates. Why is the target the lawyers and the fees paid for undertaking work that is allowed by Government Regulations, which is controlled by the LAA and which ensures Justice is done? Is this really all about reducing rights and stopping “interference” with the State and its Agents in the fight against crime? Why should an acquitted person NOT be reimbursed or at least receive a contribution back?

The myth

Too often politicians tell us legal aid has grown out of all recognition from what was planned for it in 1948. That is false. Indeed the system now is a very much shrunken reality of the 1948 dream.http://hansard.millbanksystems.com/commons/1948/dec/15/legal-aid-and-advice-bill#S5CV0459P0_19481215_HOC_394

Consult

The MoJ has to stop telling people lies. They must stop twisting fact and data and start talking to Solicitors about real reforms.

If they conclude that the crime and punishment policies are as they are then the legal aid spend is what it is. 

What is proposed is a massive change to the system. Timescales are tight (unrealistic) and the costs for those who are successful make winning a two-edged sword. The costs for those who lose are even worse.

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The MoJ Confrontation

Well the first thing to say is the sound system was rubbish. No microphones for audience. Difficult to hear what was said.
Second the message isn’t clear. The main man from MoJ said competitive tendering was the only game in town but the model was up for discussion. However “the boy” said that anything was up for debate as Ministers decided what to do and PCT was model the Legal Aid Policy team came up with.
None of the LAP team had any legal experience. So what?

Well their “understanding” of the criminal justice system was based on what they’d read. What a shame the MoJ don’t talk to lawyers before they dream up the solution. PCT is based on idea there are too many lawyers. Somehow this affects the legal aid budget. Quite how is still not clear. The answer seems to be that some firms have said (when? To whom? which ones?) that there are too many firms for too little work. This is the very same stuff spouted for BVT which was determined to be unworkable.

Apparently the brief to LAP team is to save £220 million.

However in a market priced on number of cases the MoJ can’t control costs as MoJ don’t control number of defendants.

So plan is to take those with more than £37500 out of legal aid. These people will have to pay for their defence. But if acquitted this innocent person will only be reimbursed if they have applied for legal aid and been refused. Even then they shall be reimbursed at legal aid rates. So someone who is acquitted could face financial ruin. Does that sound right??

What is the incentive to build a business under PCT?

Why use the independent Bar at all?
Ring fencing the Bar leaves them open to annihilation.
PCT will result in using “cheap labour” so quality will suffer.

So the LAP team have created a proposal which will interfere with the market for no good reason. There’s no evidence to support the model proposed. The hypothesis is flawed. There’s no guarantee of volume just of share.
The LAP team aren’t thinking about other areas of CJS so thinking is disjointed.

What about “choice”, one of the pillars of the Big Society?
The LAP team don’t seem to get it at all. Nor do they see the connection with quality.

The other main problem with this Confrontation process is that the MoJ representatives won’t discuss anything not in proposal even though MoJ have suggested we come up with alternatives.

The man in charge and his side kick “the boy” were insistent that submitting responses to the consultation was the key message.

The real key message is the the MoJ is repeating same old rubbish spouted in favour of BVT and have no evidence that what they are proposing will deliver savings or sustainable businesses( although what sustainability has to do with Government is beyond me).

The timescales are unrealistic.

This process is a waste of time and a Judicial Review waiting to happen. The trouble is that the LAP team aren’t really interested in proper discussion. It’s about time MoJ grew up and talked to us about real solutions to real problems and had a holistic approach. Instead of thinking about and writing proposals it would be better if MoJ showed some respect and talked to us.

The Confrontation process is a farce.

Michael Robinson
Emmersons Solicitors