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This document in response to the Review of Legal Aid by Lord Carter is a document that the Chair of the West London Criminal sub committee has approved.
IDL
Independent Defence Lawyers
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MEMORANDUM TO DEPARTMENT OF CONSTITUTIONAL AFFAIRS
In Re: Legal Aid: a sustainable future
Independent Defence Lawyers Group (“IDL”) is an association of some seventy solicitors firms in London specialising in criminal practice.
IDL was believes that the Review undertaken by Lord Carter concluding in his Report, Legal Aid: A Market-Based Approach to Reform (“Carter”), and the subsequent Report presented to Parliament by the Lord Chancellor, A Fairer Deal for Legal Aid (“Fairer Deal”), contain recommendations which, collectively, constitute a threat to the future viability and integrity of the criminal justice system.
In an effort to aid the consultation process we address the questions as set out in the consultation document issued by the Department (“DCA”) insofar as they are relevant.
This document has several authors. There are inevitable differences of style and tone and there may be some small instances of repetition (the questions themselves do not cover wholly discrete areas).
1.1: Our Interest
IDL is made up of equity partners and heads of Criminal Departments of firms.
The firms themselves may include trainees, assistant solicitors etc. but the group is only equity partners.
1.2: Our Experience
The experience of IDL members ranges up to 30 years and more of criminal practice.
1.3: Our Views
See below.
1.4: Our Numbers
IDL represents firms who collectively constitute between 200 and 400 qualified solicitors and a further 300 to 500 other staff engaged in criminal practice (either in an administrative or fee-earning capacity).
1.5: Our Dependence
The spread of dependence on legal aid varies amongst member firms but is in the region of 50% to 100%.
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Independent Defence Lawyers
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2.1: Modernisation
IDL has no objection to the idea that the procurement of criminal legal aid should be reviewed.
The Carter recommendations, however, appear to be driven exclusively by an ambition to cut the costs of procurement defence services.
Little account has been taken of other factors.
IDL has a number of principled objections to Carter.
A: Comparators
The accounts of the LSC show legal aid payments of £1,716.9 million (£983.2 million attributable to criminal defence work) in 2001-021, £2,066.4 million (£1,179.2 million to crime) in 2003-042, £2,038 million (£1,193.3 million to crime) in 2004-053 and £2,027.8 million in 2006 (£1,196 million to crime)4.
Total LSC payments are actually falling.
Total expenditure on the CPS (the main prosecutorial branch) increased from £346 million in 2001 to £604 million (estimated) in 2006 (a 75% increase) and the number of full-time employees increased from 5,564 to 7,846 (a 40% rise in personnel)5.
Total expenditure on the Serious Fraud Office increased from £23 million to a projected £41 million (a 78% increase) in the same period6.
Expenditure by the Revenue & Customs Prosecution Office (a new agency) is projected to be £38 million for 2005-20067. Budgetary allocations for the purposes of investigating criminal activity are not known but there are indications that the Revenue is devoting very substantial resources to this (recently doubling its personnel (to 1,000 officers) to investigate just VAT offences8).
1 LSC Annual Report 2001-02, Page 1: £509.1 million on police station and lower court work and £474.1on higher court work
2 LSC Annual Report 2003-04, Page 4: £534.2 million on police station and lower courts work and £645 million on higher courts criminal work
3 LSC Annual Report 2004-05, Page 6: £510.9 million on police station and lower court work and £682.4 million on higher court criminal work.
4 LSC Annual Report 2005-06, Page 7: £501.9 million on police station and lower court work and £695.5 million on higher court work.
5 http://www.cps.gov.uk/publications/docs/lodeptreport06.pdf
6 http://www.sfo.gov.uk/publications/2005_2006/sectiontwo_05.asp
7 http://www.rcpo.gov.uk/rcpo/about/reportsplans.shtml
8 The Guardian, 12th September 2006.
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The Police Grant for this same period increased from £3,995 million to £4,573 million (a 15% rise)
9. There is compelling evidence that contracting work with independent firms is substantially cheaper than organising delivery through directly employed staff (the Public Defender Service, a costly experiment that the LSC continues to run)
10. Criminal defence costs payable to independent firms of solicitors (and advocates) have not been the only area of rising cost. All agencies in the criminal justice system are experiencing significant hikes in the cost of delivery of service. This can only be because of an increased administrative burden at large. The costs of the PDS are indicative of the costs of delivery of criminal defence services.
B: Costs Drivers
There have been a large number of changes in the way in which the criminal justice system operates in the last ten years or so. These changes have all contributed to substantially increase the time necessary (and, hence, cost) to prepare a case (especially Crown Court cases).
These costs divers are all outside the control of defence solicitors.
New forms of evidence:
• Film evidence of two types – CCTV footage obtained from private operators and surveillance footage. In cases of relative complexity (especially where conspiracy is charged) this film can (and often does) run into hundreds of hours.
• Where several defendants are charged their mobile telephone billing records will – always - be interrogated to assess any links between them. These records can run to many (sometimes hundreds of) pages.
10 The PDS was established in 2001. Start up costs have been significant (in the first two years, approximately £2 million direct start up costs and approximately £6.3 million running costs for eight regional offices – equivalent to a budget of £½ per annum to start up and run a new office over two years).
The outcome of research on the performance of the PDS is awaited. See:
http://www.legalservices.gov.uk/docs/pds/PDSannual_report_final.pdf
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• Materials generated by information technology can figure importantly, both in respect of internet communications and also in respect of documents stored electronically.
Unused Material:
• Huge swathes of documentation can be ingathered. It is normal in large fraud cases to find that there exist hundreds of thousands of pages of unused material.
• Even smaller cases often generate substantial amounts of unused (due to the increased resources of investigating authorities).
• Problems associated with Unused Material (the volume of this material and the time associated with checking it) have been recently addressed11. The likelihood is high that these will have a substantial bearing on overall criminal costs (especially in large cases).
New offences and patterns of prosecuting:
• The Government has legislated to introduce no less than 3,000 new criminal offences in its nine years in office (almost one for everyday)12.
• Large-scale prosecutions for fraud are a phenomenon of the last twenty years. There has been an increase in one particular type of prosecution for what is known as “carousel” or “missing trader” fraud. Estimates are that some 9,000 individuals13 may now be operating criminally in this area and that the loss to the Revenue runs to several billions of pounds. These prosecutions are very paper intensive.
• Prosecutions for terrorism offences have been, and are highly likely to be, hugely expensive.
It should be noted that some prosecutions have been extremely badly handled and have resulted in huge sums of public money being wasted14.
Procedural changes (some examples – there are many others):
• The right of the prosecution to draw inferences form the silence or refusal of a defendant to answer questions in interview15.
11 See Fairer Deal, Page 26, Paragraphs 5.15–5.24
12 The Independent, 16th August 2006.
13 The Guardian, 30th August 2006.
14 See the Butterfield Report and the collapse of Operation Venison last year -http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2005/06/30/nlaw30.xml
15 Criminal Justice and Public Order Act 1994 (c 33).
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Independent Defence Lawyers
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• The duty on the defence to serve a Defence Case Statement16.
• The ability to introduce evidence of bad character17
• The ability to introduce hearsay evidence18
• The Crown has been equipped with increasingly powerful powers to provisionally confiscate and to then obtain the forfeiture of assets19. Where once these powers were used only occasionally they are now always deployed where financial benefit from crime is suspected20.
C: Procedural Inefficiencies
Much is made of times spent waiting at various locations and is produced in Carter as evidence of inefficiencies that drive up costs.
Most such time is extremely poorly remunerated. For that very reason, solicitors do not wish to spend time waiting.
Why has detailed consideration not been given to tightening or reforming procedures at police stations, in the Magistrates Courts and in the Crown Courts?
21
• Interviews could take place at pre-arranged times or cases called on at set times (rather than being listed generally in each court session).
• Cases could be subject to Case Management Conferences on the model of the Civil Procedure Rules (reducing the probability of cases having to be
adjourned).
• Days (every Friday, for example) could be given over by the courts to administrative business to ensure greater procedural efficiency.
IDL believes that Carter has failed to consider the criminal justice system as a whole in sufficient detail and that this has resulted in generating an inaccurate understanding of what is transpiring.
16 Criminal Procedure and Investigations Act 1996 (c 25)
17 Criminal Justice Act 2003 (c 44)
18 Criminal Justice Act 2003 (c 44)
19 Proceeds of Crime Act 2002 (c 29)
20 Through a new agency, the Assets Recovery Unit
21 Carter actually calls for this. See Page 125, Paragraphs 160 to 164.
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D: Private Provision
Between April 2001 and October 2006 all criminal defence work was capable ofbeing funded, free of charge, through the Legal Services Commission (“LSC”)
22. Carter proceeds on the assumption that the State will continue to be the sole provider of criminal defence funding, primarily through independent firms of solicitors.
Previously, eligibility for public funding was means tested (with the result that some Defendants had to pay a contribution and that others were not eligible at all).
Some Defendants (typically those charged with ‘white collar’ offences) continue to elect to pay privately (either directly out of their own pocket, through their employers, or drawing on insurance policies) notwithstanding entitlement to free legal representation.
Anomalously, means testing has been recently reintroduced (with a very low threshold of £3,156 disposal annual income out of total annual gross income of up to £20,740) for criminal defence work in only the very lowest tier of courts
23. It is presently unclear whether means testing will be reintroduced for higher court work
24. Public funding of criminal defence work was never intended to support (often) wealthy individuals charged with financial misfeasance (such as those typically prosecuted by the SFO).
Why did Carter not consider the possibility of encouraging private provision for criminal work (for example, through insurance policies (there is already an active D & O insurance market))?
25
E: Flawed Data
IDL is concerned that some figures in Carter seem incorrect
26 and that some empirical evidence on which it relies seems flawed
27.
22 Access to Justice Act 1999 (c. 22)
23 Criminal Defence Service Act 2006 (c. 9)
24 Note the contrast with Scotland where all work in lower courts is fully funded and work in the higher courts is means-tested. The Legal Aid system has also been subject to a recent review by the Scottish
Executive. See: http://www.scotland.gov.uk/Publications/2004/11/20182/45886
25 As the Scottish Executive has done in its Strategic Review of Legal Aid provision. See Paragraphs 3.46-
3.47 at http://www.scotland.gov.uk/Publications/2004/11/20182/45886
26 For example, the payment figure for police station work in 2001-02 is stated to be £126.9 million (at Page 24, Paragraph 14), but the figure in the LSC Annual Report for that year is £140.255 million (at Page 45)?
27 The assertion, for example, in relation to waiting time in the Crown Court at Page 40, Paragraph 120.
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The impact of the reforms on the supplier base seems to have been miscalculated.
The Law Society has commissioned a report from LECG Ltd28. This indicates that
a very large number of firms will be unable to survive in the new Carter
environment (many more than Carter predicts).
The projections in Carter are that overall legal aid spending on criminal defence
work will decrease by 5.6% between 2006 and 2008 and by 11.4% by 2010 (in
non inflation adjusted figures)29. These figures do not add up and do not appear to
be supported by data. IDL believes that the costs impact will be much higher.
2.2: Timetable
IDL believes that the proposed timescale is unrealistic – and dangerous.
The actual impact of the proposed reforms on the supplier base has not been
thought through properly.
Even were we to support the principle or logic of the proposals – which we do not
– the timetable incomprehensibly sets out that the suggested financial benefit to
firms (deriving from increased volumes of work) will follow rather than precede
the proposed cuts to fee income. There is no explanation as to how firms will be
expected to absorb these cuts nor any reason to suppose that any firms that do
survive will be the most efficient or best placed to deliver quality defence services
in the future.
2.3: Benefits
IDL does not see any benefits accruing to any stakeholders in the criminal justice
system as a result of the proposed reforms.
In particular, choice of legal representation will be severely restricted. Many
individuals drawn from black and minority ethnic groups prefer to instruct
solicitors drawn from their own background. There are advantages to this
(linguistic, cultural knowledge, trust, etc).
2.4: Impacts
IDL is especially concerned about the impact on the solicitors’ profession in a
number of key areas:
A: There are inadequacies in the current system of remuneration as it already exists.
28 Legal Aid Reforms Proposed by the Carter Report, LECG, 25th September 2006
29 Carter, Page 127, Table 6.1
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Rates for work in the Crown Court have remained unchanged since 1st April
199630.
Those for work in the Magistrates Court and at police stations have remained
(almost) unchanged since April 2001 (the sole exception being the significant
change cut in costs resulting from the reduction in the scope of ‘duty’ as opposed
to ‘own client’ police station work and the introduction of a new rate for the work
of a Duty Solicitor attending to deal with a Serious Offence at the police station).
Expense of Time surveys are regularly published by the Law Society and show
average charge out rates to privately paying clients for solicitors of different
experience operating in different geographical locations and incorporate a
calculation of overheads (lease, insurances, etc), salaries and a profit element31.
The current guideline hourly rates for solicitors engaged in commercial or civil
litigation in London are as follows:
• City of London – Senior Solicitor £359 per hour; other solicitor £259 per hour
• Central London – Senior Solicitor £276 per hour; other solicitor £210 per hour
• Outer London – Senior Solicitor £198-£232 per hour; other solicitor £149-
£198 per hour32
Consumer Price Index (“CPI”) figures are as follows: April 1996 = 88; April 2006
= 101.733.
Making the appropriate adjustments for inflation, the value of £55.75 in April
1996 (the rate for a Senior Solicitor working on a Crown Court case) is
approximately £48.30 today and of £47.25 is approximately £40.90.
Currently, a Senior Solicitor working in Central London will thus achieve at best
approximately 40% (and usually 20% - £55.75) of the level of hourly
remuneration of his peer working on civil or commercial litigation (£276)34.
Solicitors engaged in publicly funded criminal defence in London work operate
their practices in a commercial environment where overheads (leases, etc) are
very high at a fraction of the remuneration figures their peers are able to attract.
Historically35, firms engaged in legal aid practice had difficulty in securing access
to capital resources (that is, banks would not lend). That situation is likely to arise
30 Having previously steadily increased from £42.50 in 1988
31 Michael J Cook, Litigation Focus, 8, November 2003
32 http://www.hmcourts-service.gov.uk/publications/guidance/scco/appendix_2.htm
33 http://www.statistics.gov.uk/downloads/theme_economy/FocusonCPI_Aug_2006.pdf
34 Up to 1994 solicitors in criminal practice were able to achieve the same hourly rates as their peers.
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anew – especially as the value of practices are likely to be severely impacted by
the operating restrictions imposed (the boundary limitations).
B: The Carter reforms will compound difficulties.
Diminished firm income
Carter envisages (amongst other recommendations) a move to fixed fees in police
station advice and the abolition of travel and waiting for work in the Magistrates’
Court. The changes were proposed as “cost neutral” but analysis undertaken on
behalf of the Law Society anticipates reduced income for “lower” work of 3% and
a reduction in Crown Court income of 5%36. Recent work conducted by the
LCCSA, CLSA and Law Society using LSC supplied data suggests much greater
reductions.
Such diminished income will result in a thorough review by most firms of their
costs, the biggest component of which is salaries.
The prospect of further diminished firm income
Price Competitive Tendering, which is posited to follow, is obviously anticipated
by or for the LSC to reduce defence criminal law firms’ incomes further.
One of the premises leading to Carter – there are too many criminal law firms in
London - was apparently based on research by the DCA’s consultants - Frontier
Economics - which suggested that since new firms were entering the market at the
present legal aid rates the said rates were adequate: “there may be some spare
capacity in the legal services market.”
From this arose the LSC ultimate conclusion - Price Competitive Tendering: if
profit costs are forced down the market will stop expanding, and if forced down
further the number of firms will shrink.
Erosion of pay of criminal law firms’ staff
But the supposed proliferation of firms in London (in some areas of London the
number of criminal law firms has, in fact, diminished markedly) is an artifact not
of too much money in the criminal legal aid system, but too little. (As already
indicated, the profit costs of Legal Aid law firms have, in fact, been constrained
by inflation with no real rise in hourly rates of pay for many years.)
The effect has been of downward pressure on the real value of salaries of the
employees of criminal defence firms, support staff, admitted lawyers, and
35 IDL has anecdotal evidence from amongst its older members that securing lending up to the late 1980s
was extremely difficult.
36 LEGC Ltd
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paralegals alike. But it is the impact on salaried solicitors that has the biggest
ramification for the future of the criminal defence service.
Envisaged further downward pressure on employee salaries
Employed criminal solicitors’ salaries have been indirectly eroded by the actions
of the LSC: they are now far below an attractive level for a professional person in
London, especially when set against property prices.
The starting up of new firms has, in fact, been a rational response to that real
downward pressure on the salaries of employed criminal solicitors’ salaries, and
on drawings in multi-partner firms.
Carter’s “Winner takes all” response
Yet the LSC and Carter response is to propose a “winner takes all” response of a
few large firms with one or few equity partners in each, resulting in a reduction in
the number of those taking profits in the criminal defence legal sector, and an
increase in the proportion of employees.
And the figures – all envisaging a reduction in firms’ incomes – do not stack up
unless it is anticipated that each fee earner produces a smaller income than before
for his or her firm and for themselves. Carter seems to desire – even if this is not
overtly argued – large factory firms with numerous employees where a solitary
boss figure makes a comparatively small profit, but an attractive one when all is
aggregated.
Who will be the new employees?
Who will provide this prospectless new worker class of criminal lawyer?
The market for solicitors is a complex one. At the outset of their training contract
potentially any prospective solicitor has the choice of applying for employment in
the city firms, in other commercial practice, in private client work, and in legal aid
work of various sorts. At this point in any career consideration of future financial
reward is a significant factor, and with many city firms paying trainees more than
qualified solicitors can command in the legal aid sector it is not surprising that
many LPC students are no longer choosing electives aimed at legal aid firms.
Reduction in availability of Training Contracts
In fact such are the costs of taking trainee solicitors because of Law Society
regulations that fewer and fewer specialist criminal firms are taking trainees.
Many of our members have ceased doing so.
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Carter’s restriction of employed lawyer’s prospects
But even students able to surmount this hurdle and potentially prepared to suffer
initial low wages to entertain legal aid work as a career, must consider potential
earnings as their career progresses, and the chances of elevation to partnership.
All of these are diminished under these proposals.
Destruction of Career Structure: Abolition of the Status of “Duty Solicitor”
Carter cannot give rise to any assumption of a rise generally in employed
solicitors’ wages. But it undoubtedly seeks to end the concept of “Duty Solicitor”
(although the “Court Duty Solicitor” is completely overlooked).
The status of duty solicitor has been part of the architecture of the career of a
criminal lawyer for the last twenty years, reflected in increased pay. Already in
light of these very proposals rates of pay for duty solicitors are dwindling, as
equity partners react to the realities of business.
The end of overtime?
Many employed criminal lawyers are paid overtime for out of hours work at
police stations, and for attending court at weekends and on bank holidays. The
new police station fixed fee schemes threaten this source of additional income,
and the new Magistrates’ Court legal aid arrangements have made speculative
attendance at court in anticipation of a grant of Representation much more risky.
No escape for employed solicitors into partnership
Highly geared firms are the admired models in Carter, so an escape into equity
earning is not likely now for the vast majority of criminal lawyers.
Entrenching larger firms
The LSC and Carter proposals seemed designed to entrench existing larger and
disproportionately white-run firms, as against smaller firms and those seeking to
enter the defence criminal litigation market, amongst which BME firms are
disproportionately represented. The proposals are accompanied by the distinct
sound of a ladder being pulled up. It is for this reason that IDL – as a matter of
principle - roundly rejects minimum contract sizes, and the rigged market place
that Carter envisages to perpetuate large existing firms.
Low pay and the future
Ignoring the reality of low pay amongst employed criminal lawyers imperils the
future of legal aid law work generally and not just the criminal defence service.
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Property ownership has become an entrenched political norm for most people
since Margaret Thatcher was elected. It is difficult to conceive of many
prospective solicitors going through a current minimum of 6 years education and
training only to face the prospect that they cannot afford to climb onto the housing
ladder.
IDL derive the following four pay bands for criminal lawyers in the private sector
at various stages of experience from a well-known agency. The figure to the right
reflects the mortgage obtainable at the top of such salary bands - and what it buys
in equity terms assuming no savings.
1. NQ: £20-26K (usually £24-£25K): £78K
2. to 1yr PQE: £23- £27K (usually £26K): £81K
3. 1-3 yr PQE: £26-£32K (usually £26-£29K): £96K
4. Duty Solicitors: £33-£45K + 50% Out of Hours fees ("Norm" =
£40K): £135K+
There is virtually no buying power at all in the London property market where the
average house price for August 2006 was £286,369. Nationwide the average
house price for August 2006 was £197,631 and the cheapest average house price
(in the North-East) was £142,601.37 Carter will worsen already evident
recruitment difficulties.
One IDL member firm has established that not one of their 6 assistant solicitors -
all paid within the various above bands – has been able to buy a property without
the salary of their partner (or assistance from a parent) – and their newly qualified
solicitor has no immediate prospect of buying a flat at all. Yet the three equity
partners of the firm, when they were employed solicitors, could afford by relying
on their own salaries, to raise mortgages and buy properties.
A pin money profession? Or the Pro bono spouse?
At a conference at the Law Society on 17th July 2006, (“The future of legal aid –
The implications of the Carter report as it relates to criminal defence practice,”) in
response to the question from the floor - “Lord Carter how do you see the future
of legal aid practice?” - Lord Carter gave an answer that, surprisingly, did not
receive much publicity. He mentioned, “more flexibility.” He mentioned in the
same response that “in the future there will be more women coming into the
profession,” and he mentioned the need for, “more flexibility to suit their lives.”
It seems to IDL that being a criminal legal aid or a legal aid solicitor in London is
fast becoming a "pin money profession”, and that is precisely what Lord Carter
envisages for it in that answer we suggest, by alluding to a future of flexible hours
meaning part time work, often conducted by working mothers and usually low
paid.
37 Daily Telegraph 11th October 2006
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Recruitment Difficulties
IDL anticipate recruitment difficulties in this sector. Already IDL is aware of the
loss of staff by firms of criminal lawyers to the Public Defenders Office where
that is a local rival, and there are significant numbers of defence lawyers joining
the Crown Prosecution Service.
De-skilling
IDL further anticipate as recruitment becomes more difficult – and to justify the
sinking salaries – on the “any fool could do this” principle, the opening up of
rights of audience to non-admitted lawyers or non-lawyers and other attempts to
de-skill it, of which the Carter report bears the early signs.
Legal Advice Call Centres
One of these is in place now. Carter envisages own client work in the police
station to be handed over to anonymous telephone advisers of CDS Direct.
Legal Advice Factories
IDL quotes Jonathan Freedland’s advice to the public in the Guardian 11th
October, “Brace yourself for easyJet-style legal services, keeping their costs down
by running a glorified call centre, with a floor of staff untrained in the law,
patrolled by a roaming solicitor checking quality. On the ‘paying peanuts, getting
monkeys principle’ the poor will in future be represented by paralegals and novice
lawyers – as they face prosecution teams armed with ever-greater resources.”
IDL submits that the present arrangements with firms of differing size, structure
and mix of employee and partner is just about adequate to continue to renew itself
with a racially balanced input of properly trained lawyers.
IDL submits that the Carter proposals will tend to result in an oligopoly of deskilled
mega-firms undermining the bulwark the present arrangements tend to
provide against overbearing police officers and wrong-headed prosecutions.
Summation
The comparably (and absolutely) poor rates of remuneration currently available
mean that owners of practices (especially in London) are already at a significant
disadvantage in attracting new qualified personnel38.
38 Note the salaries available and the commensurate mortgage possibilities: Non-Qualified: £20-
26K (usually £24-£25K) = £78K; to 1yr PQE: £23- £27K (usually £26K) = £81K; 1-3 yr PQE: £26-£32K
(usually £26-29K) = £96K; Duty Sols: £33-£45K + 50% Out of Hour fees (a ‘norm’ of £40K) = £135K+
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The further cuts in levels of remuneration resulting from Carter will choke off
much of what remains of future supply.
Moreover, on the Carter model, not only will there be fewer firms but the ratio of
partners to staff will be significantly increased (fewer partners)39.
The process of driving many small firms out of publicly funded criminal practice
(and, indeed, out of business altogether) and of increasing the size of firms whilst
reducing the prospects for advancement will, inevitably, further deter new
qualified entrants into criminal practice.
Defendants will be increasingly represented by less well qualified fee-earners.
C: IDL believes that the Carter proposals will have a highly discriminatory effect on
BME firms and lawyers and those women will be disadvantaged.
IDL questions the economic articulacy of Frontier Economics’ assertion that the
supposed rise in the number of criminal law firms in London indicated a surfeit of
available monies. It is the contention of IDL that the rise of new firms is a
response to inadequate employed solicitor pay.
It is the IDL view that the Carter proposals should more than merely evoke
concern that they may have a potential deleterious collateral effect on Black and
Ethic Minority firms and solicitors.
The legal employment market is complex. The market for criminal lawyers is not
entirely separate from it. One only needs to allow a small element of institutional
racism in the wider community of law firms to understand why a disproportionate
number of BME lawyers or trainee lawyers gravitate to areas of work where they
can deal with a client base of a similar background and where there are enhanced
job prospects.
Yet – as discussed above - employed legal aid lawyers are increasingly poorly
paid when salaries are set against the cost of living and property prices. Starting
one’s own firm is a sensible response to poor salaries, and the difficulties in
obtaining partnership, a response that Frontier Economics was blind to. It is selfevident
that any member of a minority racial group perceiving frustration about
advancement may respond by starting their own firm, where they are in control.
The proportion of women and individuals drawn from BME working in the
profession is high40 (and increasing). In 1991, there were 57,167 solicitors holding
39 See comments in Carter at Page 43, Paragraphs 132 and following
40 It is suggested that the rise in the cost of funding criminal defence work has been driven by the global
increase in the number of solicitors in the last twenty years - see Fairer Deal, Page 10, Paragraph 2.11 and
Figure 2
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practising certificates (“PCS”), of whom 25% were women and 2% were drawn
from BME. In 2005, there were 100,938 solicitors with PCS, of whom 51.5%
were women and 8.7% drawn from BME41.
The proportion of partners who are women has increased significantly in the same
period. The proportion of partners who are drawn from BME is not known (the
Law Society does not appear to have gathered data on this).
Typically, minorities encounter high entry thresholds into many areas of business
activity (they often refused access to capital resources42, and encounter implied
and unfamiliar, but highly important, ‘rules of engagement’43).
Access to positions of success and independence through the solicitors’ profession
for women and BME is presently straightforward as the entry threshold is low (the
only requirement is academic ability) and as access to public funding for work is a
transparent process (at the moment, any solicitor with requisite experience can
apply for a General Criminal Contract with the LSC - thereby securing an
immediate revenue stream to be used, inter alia, as secure collateral for
borrowing).
In London, there is a particularly high concentration of BME and it is believed
that there is a concomitantly high number of BME who are solicitors and partners
and that those solicitors and partners are concentrated in small to medium
practices which specialise in publicly funded (especially criminal) work.
It is difficult to envisage how new firms in which women or BME have an
important stake can enter the post Carter public procurement market for criminal
defence services given the significant start up costs involved44, the restrictions to
be placed on market share45, the threats to profit margins generally46, and the
much reduced revenue streams (making borrowing even harder).
2.5: Quality Standards and Efficiency
IDL does not believe that the Carter proposals will assist in promoting the
provision of high quality advice or improve efficiencies.
A: Quality
It appears to be universally accepted that the client should have confidence in the
quality of the legal advice and assistance they receive which will help contribute
41 http://www.lawsociety.org.uk/aboutlawsociety/whatwedo/researchandtrends/factsheets.law
42 see David Deakins, Trevor Jones, Monder Ram, David Smallbone; Journal of Ethnic and Migration
Studies, Vol. 29, 2003
43 Such as membership of clubs or a history of participation in certain sports
44 Compare the situation with the Public Defender Service. See note 2 above.
45 See, for example, Carter, Page 71, Paragraph 12
46 See the LECG report for a detailed analysis of this at Pages 75-78.
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to their overall sense of trust in the justice system. This requirement should be at
the heart of any legal service procured with legal aid47.
It is submitted that Carter is less likely to achieve quality and client confidence
than the present arrangements. On the contrary the destabilisation of the supplier
base, the focus on fewer but larger firms and the effects of fixed fees can only
serve to drive down quality in firms in their battle for survival. Quality work feeds
into a firm’s reputation in the market place which in turn leads them to attract
more clients. This is the principle of any market.
Carter seeks to artificially restrict the market by imposing geographical
restrictions on firms which marginalises the significance of reputation and
consequently diminishes the market value of quality.
It is agreed that all suppliers wishing to undertake work should pass a strict
quality threshold. The standards to which all parties strive will be unattainable for
practitioners in the context of the regime and conditions that will prevail if Lord
Carter’s proposals are introduced.
In principle there is no objection to a quality standard regime on the basis of peer
review. However Carter is silent as to the detailed criteria for this assessment. If it
is envisaged that the criteria should be as those previously published by the LSC48
then IDL would have a number of concerns, for example, questions relating to the
ability for the reviewer to assess the ‘value added’ by a lawyer on issues such as
bail, the absence of a constructive engagement process between reviewer and
supplier and the narrowness of the crime file sample. There must be a clear
commitment to further detailed consultation before further implementation of peer
review.
Questions also remain unanswered in relation to the arrangements for payment for
the Peer Review process it being understood that the Law Society is set to take
over control of the process from the LSC. Will the costs of Peer Review be shared
with all lawyers through their practice certificates or will this be a further charge
to be met by legal aid lawyers alone?
There also remain issues as to which limb of the restructured Law Society will
have responsibility for Peer Review. These issues need to be discussed and
resolved in an inclusive manner or the process will be beset by tensions before it
has commenced.
47 Carter, Page 95, Paragraph 11
48 Independent Peer Review of Legal Advice and Legal Work – A Consultation Paper – April 2005
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Dealing with the specific recommendations on this area:
?? Recommendation 3.1:
o Given the IDL position concerning the Carter Proposals on the forced
restructuring of the market, it is axiomatic that IDL oppose the
inclusion of ‘the greatest opportunity to restructure the local market’
as a criterion that the LSC should adopt to ‘to plan the roll-out of peer
review’.
o IDL rejects the notion of best value tendering as it is no more than
price competitive tendering by another name. It is the view of IDL that
best value tendering and best quality advice/representation are not bed
fellows and the former will drive suppliers away from the latter.
?? Recommendation 5.1:
o The principle of the transfer of responsibility for quality assurance
from the LSC to the Law Society is welcomed subject to the resolution
of the concerns raised above.
?? Recommendation 5.2:
o The extension of any assessment to include criminal justice system
partners is not opposed, albeit with appropriate safeguards, guarantees
of openness and the opportunity for firms to respond to feedback.
B: Efficiency
A more efficient system benefits all players in the system, but most importantly
the defendants, witnesses and the public at large.
Inefficiencies in the criminal justice system adversely affect criminal defence
solicitors. It is perverse to suggest that solicitors would prefer to be travelling
and/or waiting at the lowest remuneration rates, rather than employing their time
more productively on attending clients or preparation of cases.
When prisoners are produced late to court from prison or when police interviews
are delayed because of a lack of interview rooms or when Magistrates Courts
remand lists run until the end of the day when there are empty courtrooms in the
building, it is the defence solicitor who is left counting the cost.
There is no evidence to suggest that it is the suppliers who are the cause of
inefficiency. The anecdotal experience of the members of this organisation is that
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the opposite is true and that defence solicitors often make up for the
administrative deficiencies of the Court Service, Crown Prosecution Service,
police and the Prison Service on a day to day basis. Court statistics for the cause
of adjourned hearings routinely suggest ‘defence application’ when the reason for
the requested adjournment is frequently the failure of the prosecution to serve
evidence in adherence with Court orders.
Criminal defence solicitors do not need to be told that the legal aid fund is a
limited resource.49
Expenditure through the legal aid fund is already tightly regulated and controlled.
The General Criminal Contract imposes quality thresholds, prior authority for
more than minor disbursements must be obtained, and high value claims for
Magistrates Court work are subject to taxation, as are Crown Court matters and
there are those matters governed by VHCC contract. If a defence solicitor’s work
(or proposed disbursement) is not thought to be a justifiable expense on the legal
aid fund then they will not be paid for it50. No other agency in the criminal justice
system operates on this basis.
The influence of costs drivers is relevant. If the Prosecuting authority wastes
resources on over complicated, misguided prosecutions then there is a direct cost
to the Legal Aid fund.
It is accepted that greater efficiency in the system can only come through the
exercise of judicial control on cases and procedure.
Such control should be based on the concept that the polluter pays, i.e. those that
cause delay pay for delay.
Dealing with the specific recommendations on this area:
?? Recommendation 5.10:
o This recommendation is too vague. However, as stated above the
encouragement of the Judiciary to undertake more rigorous case
management is welcomed.
?? Recommendation 5.11:
o Accepted.
49 Carter, Page 125, Paragraph163
50 It should be noted that it is already a cardinal and central rule within the current system as it applies to
publicly funded criminal work is that payment should only be for a “reasonable amount for work
reasonably done”. In other words, the least efficient will be penalised when they present their claim for
payment and will (and do) meet with a refusal to pay for a substantial number of the hours worked - see R v
John Singh & Co, ex parte Supreme Court Taxing Office, [1997] 1 CLR 39 for a spectacular example of
solicitors’ costs being hugely pared back.
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?? Recommendation 5.12:
o Any such review must be based on consultation with the Bar Council,
Law Society and organisations which represent criminal defence
solicitors. The effect of any amendment which results in the burden on
criminal defence solicitors increasing must be properly remunerated.
3.1: Scheme Boundaries
IDL cannot (at present) find anything to approve in the boundary proposals –
insofar as those proposals are understood at all51.
It is not understood how large the boundaries are to be (particularly in London).
It is not understood what methodology the LSC will be using to measure through
volumes at police stations as against claim values as against time response and
how any data so collated will be weighted.
It is not understood how ‘natural catchment’ areas can be devised, especially in an
area like London where a crime can easily be committed, a Defendant reside,
police investigations processed, and court proceedings dealt with at locations
spread far apart. Are suspects to be bailed to appear at (or if in custody to be
transported to) specific courts whatever the reason (for example for a new
offence)? Are Magistrates Courts to be amalgamated? Have the costs of the new
proposed arrangements to the criminal justice system as a whole been calculated?
Again, have the police been consulted?
It is not understood how agency arrangements will work (solicitors appearing in
court on behalf of a defendant who is not their client).
It is not understood how new boundary areas can be weighted to be of equal
value.
The Carter proposals seem to be driven in part by a desire to bear down on the
cost of travel (by devising barriers to travel more than a certain distance) and in
part in anticipation of future tendering for block contacts52.
At present, the system is wholly market driven in that solicitors take the risk of
not being remunerated for excessive travel times53.
51 IDL members were unable to reach a consensus as to what the boundary scheme would actually entail.
52 Carter, Pages 58-59, Paragraphs 61 to 64
53 See the GCC at Part B, rule 7.9 and R v Goodwin in the NTT Taxing Compendium.
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IDL regards the prospect of block contract tendering at some future point as
commercially wholly unrealistic54.
3.2: New General Criminal Contract Working Arrangements
IDL opposes the proposals here.
A: London
When the Duty Solicitor schemes were established over 20 years ago,
communities throughout England and Wales were more localised. Generally an
individual arrested in a metropolitan area was likely to be from that area and
offend within that area.
As a result of demographic changes, developments in transport infrastructure, the
increase in motor vehicle ownership, housing costs and alterations in the structure
of the family unit, the users of the system are now much more polarised.
It is a clear sign of the quality of the provision by criminal defence practitioners
that their clients request their service beyond the initial instruction as Duty
Solicitor. Thus it is to the benefit of the legal aid fund that the defendant may
return to a firm upon subsequent arrests and that firm will act at own client rates,
thus saving costs.
There is a problem which is probably exclusive to Greater London and that is the
client that requests the Duty Solicitor upon each arrest and does not retain
knowledge of the name of the last solicitor used. This does cause great
inconvenience and cost to the legal aid fund especially where two or more firms
act for a defendant appearing in respect of multiple matters. This problem will
become more widespread upon implementation of the scheme.
It is argued that a similar system works for GP practices where they are restricted
to dealing with patients within a certain catchment area. However if a patient
living in Kilburn falls ill in Tower Hamlets, he may be admitted to an East
London hospital but thereafter returns for after care to his local GP. The patient is
not, as proposed in Carter, then obliged to seek continuing care within the Tower
Hamlets area.
The proposal also ignores the fac
