RESPONSE TO MOJ CONSULTATION PAPER CP14/2013 ON PRICE COMPETITIVE TENDERING FOR LEGAL AID (PCT)
INTRODUCTION
Equal access to justice, irrespective of means, is essential to the rule of law, and to a fair, harmonious and civilized society. High standards of representation ensure that the innocent are acquitted and the guilty convicted, and that those in authority do not exceed their power. The following response deals with some of the issues raised by the Consultation Paper.
EXISTING COSTS DRIVERS
Defence Solicitors have little or no control over the costs drivers in the criminal justice system, for example late production of prisoners, late service of prosecution evidence, missing prosecution files, absent interpreters, police repeatedly re-bailing suspects without decision and so on. There is no evidence of these types of inefficiency in the defence. Public money could be saved if these sorts of issue were addressed. A polluter pays rule should be considered. There is no evidence that the present proposals would even save money. Experience shows that implementation may actually have the opposite effect.
In addition, ongoing measures such as consolidation of Courts and police custody facilities, more intensive use of Courtrooms, better use of technology and disposals alternative to prosecution, have already reduced costs in a way not reflected in the Consultation Paper and should continue. There have also been missed opportunities. For example, the government has refused to fund or even assist with better (and relatively inexpensive) technology for the defence, even though this would have facilitated Digital Working and saved money for the Prosecution.
Current legal aid rates are lower in both real and actual terms than for many years. By contrast, operating costs have increased. As the throughput of cases has gone down and legal aid remuneration rates have not increased, it necessarily follows that the stated increases in the criminal justice budget are not the result of increasing defence legal aid spending. The explanation must therefore lie elsewhere. Further, there is no evidence that the work currently funded can be undertaken properly at lower cost than present.
CLIENT CHOICE
Client choice guarantees high standards and efficiency and ensures that the system is seen to be fair.
Although those not regularly engaged in the Courts may understandably not realize it, client choice also reduces Court, Prosecution and other costs, and saves time. There are a number of reasons for this, as follows.
Clients are more likely to accept unpalatable advice from a trusted adviser with whom they have a rapport. For example, experienced and trusted lawyers often persaude a client to plead guilty who would otherwise run a trial and require the attendance of victims and/or witnesses.
Client choice also means that existing lawyers are already familiar with their clients’ circumstances, e.g. learning difficulties and other mental health issues, which might not otherwise be picked up. This saves time in taking instructions and advising, speeds up the Court process and helps in the identification of those defendants who would benefit from, for example, referral to mental health services. For these and other reasons, client choice saves public money and court time, benefits victims and witnesses, and may reduce offending.
Quite apart from the above, how can it be fair for choice to be denied to those who lack means and only those who lack means, particularly bearing in mind that they will face the full resources of the state.
These factors have not been appreciated in the Consultation Paper.
GUARANTEED QUALITY
Market forces and consumer choice are the best guarantees of quality. External review of Solicitors’ files is therefore unnecessary. It is expensive and neither guarantees good quality, nor necessarily reveals bad. A file which looks good on paper may disguise bad advice; good advice may not be reflected on file. A tick-box system does not guarantee quality.
Poor quality by any firm will deservedly lead to a shrinking client base and/or complaints which the Regulator and the Courts already have power to sanction.
MINIMUM CONTRACT SIZES
There should be no minimum or maximum contract size. Firms should be able to develop or not in accordance with market forces. The survival of a firm should depend upon free market forces, and its ability to attract clients and operate efficiently. Minimum and maximum contract sizes simply favour some firms, their clients and employees at the expense of others, as well as reduce client choice and remove experienced practitioners.
There is no evidence that larger firms are more costs efficient than small ones. In many cases, past experience demonstrates the opposite to be the case. To my knowledge, only one Greater Manchester firm has expressed support for minimum contract size. Significantly that firm has openly indicated that it cannot otherwise make a profit, but that small firms have lower costs and therefore can.
So long as there is client choice, poor quality and inefficient firms will go out of business anyway.
SAME FEE FOR GUILTY AS NOT GUILTY PLEA
This would penalize the conscientious Solicitor and favour the negligent. It would also create a conflict of interest between Solicitor and client. For a provider which was a company, its financial duty to its shareholders would be in conflict with its duty to its clients. Innocent clients may be pressured to plead guilty.
OTHER UNFORESEEN/UNINTENDED CONSEQUENCES
PCT would increase costs in the criminal justice system in a number of other ways which have been overlooked or not fully appreciated.
For example, it almost always takes the Court longer, very often considerably so, to deal with an unrepresented defendant.
The system proposed would also result in immediate increased unemployment (of solicitors and their employees) and loss to the government of revenue, (VAT, income tax and National Insurance), which has not been factored in.
Minimum contract sizes would have a similar effect and would also disproportionately affect BME practices.
There are no transitional provisions. How can one set of firms suddenly stop and another start up on the date set? If PCT was introduced, how could doomed firms and their cases keep running as the current system began to end?
Advice deserts would be created. Many in society would be alienated. The rule of law and the perception of fairness would be diminished. The State would be increasingly unaccountable and its activities increasingly difficult to challenge.
Lawyers from less well-off or disadvantaged backgrounds would be deterred from following a criminal law career path. This would reduce the pool of talent and reduce career opportunity in both the law in general and criminal law in particular. In time, it would also reduce the pool of talent from which the judiciary is drawn and therefore its quality and reputation. Further, those from a BME background would be further disadvantaged and diversity would be reduced.
VHCC CASES
VHCC cases are very different, often more akin to civil litigation, and may require a totally new and/or different approach to funding and mode of prosecution. Consideration should be given to funding the relatively small, but highly disproportionately expensive, number of VHCC cases by means other than legal aid, e.g. by the financial institutions involved, or by the use of seized assets. Consideration should also be given to the mode of prosecution of these cases.
MEANS TESTING
Means testing can be reasonable and desirable, provided it is operated fairly and sensibly. Loans may be appropriate for borderline means cases. If a client is acquitted or without means, he/she should not have to repay the loan. Allowing top-up, although not ideal, should be considered, subject to safeguards.
IN CONCLUSION – INEVITABLE DAMAGE TO STANDARDS
The removal of client choice and threat to smaller firms is a major threat to the rule of law. Experienced practitioners would be lost and miscarriages of justice result. In an adversarial system such as ours, high standards and fairness demand high quality representation for both prosecution and defence.
High defence standards lead to high police and prosecution standards, and ensure that the right people are convicted and imprisoned. A wrongful conviction is also unfair and potentially dangerous, for victims in particular, and society in general. Miscarriages of justice, high profile examples of which are well known and still happen, bring the law into disrepute, are expensive to put right, create a perception of unfairness and allow the guilty to remain free and perhaps re-offend.
The one page hidden in a thousand that proves a client’s innocence, is unlikely to come to light in a system where excellence, striving for justice and client choice no longer exist. Nor would such a system encourage high standards in policing, prosecution and the administration of justice. Public confidence in correct acquittals and convictions would be eroded, to the detriment of society.
Because low defence standards inevitably lead to lower prosecution standards, soon the current high standards of our judiciary would also diminish as the pool of high quality lawyers from which they are drawn also diminished. This would be to the detriment of our society in general and of the reputation of our legal system both here and abroad.
Criminal legal aid lawyers are not dinosaurs and have constructively accepted massive changes in recent years. However, what is now proposed would seriously damage fairness and the rule of law; it would bring the criminal justice system down to a point from which it would be very difficult to recover.
WINSTON CHURCHILL said: “The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilization of any country. A calm, dispassionate recognition of the rights of the accused … a constant heart-searching by all charged with the duty of punishment … these are the symbols which measure the stored-up strength of a nation and sign and proof the living virtue in it.”
Richard Silver
Solicitor and Higher Courts Advocate
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