Best Value Tendering of Criminal Defence Services Consultation Paper
THOMPSONS SOLICITORS’ RESPONSE - FEBRUARY 2008
About Thompsons Solicitors
Thompsons is the most experienced provider of legal services to trade union members in the United Kingdom. We have offices across the UK dedicated to providing legal services to trade union members and their families.
Thompsons’ Criminal Law Service
Our criminal service specialises in work related crime and is offered almost exclusively to trade unions and their members.
In 2005 Thompsons had a success rate of over 98% (1,095 successful cases and 22 unsuccessful). In 2006 our success rate was over 99%, with just one unsuccessful case in 786 concluded. In 2007 we ran 1433 cases with a success rate of 95%.
Thompsons’ criminal law unit (CLU) has a team of 14 lawyers based in Newcastle, Manchester, Leeds, Birmingham, Cardiff and Chelmsford. They provide a network able to respond to a referral from our client unions anywhere in England and Wales. Whilst most arrests of union members in connection with their work are at an appointment based interview there are unions who need a 24 hour emergency criminal defence service. Examples would be train drivers (on instruction from their union ASLEF) who have been arrested after being accused of causing a crash through driving through a red light or photo journalists arrested in connection with their coverage of a demonstration (instructions coming from their union the NUJ).
The access to justice that trade unions offer their members is intended to be an all round package covering not only ‘domestic’ issues such as making a will or selling a house but also providing cover for ‘emergency’ situations such as discipline or dismissal at work. The criminal service is a key part of that package for those unions whose members are dealing with vulnerable members of the public whether that is in teaching or public services such as nursing / caring. We act for both NASUWT and UNISON.
We act for the Royal College of Midwives and for UNISON where their members are implicated in incidents during childbirth which lead to injury or death. We were instructed on behalf of the midwife at the recent inquest into the death of Mayra Cabrera. We continue to act for another midwife in a similar case.
Thompsons is also heavily engaged in inquest work following (often highly publicised) disasters such a rail crashes, fires and workplace accidents which result in deaths leading to a criminal investigation focusing on breaches of health and safety law and issues of criminal liability. Our clients may be victims or potential accused.
The profile of Thompsons’ criminal clients
Because our criminal instructions are almost all derived from trade unions it is very different in profile from “normal” criminal work.
Trade union members, in general:
- are of good character;
- have a one time only engagement with the Criminal Justice System;
- have ancillary employment rights and disciplinary issues which are dealt with by Thompsons’ specialist employment rights unit.
The nature of the cases are also very different to routine criminal cases. In teaching and for carers they often involve allegations of physical assault and cases of inappropriate sexual relationships. There are also cases of alleged fraud and theft but in an institutional setting.
We would argue that there is a risk that solicitors not used to dealing with these types of cases will do so on the basis that the clients and the issues in the case were like any other criminal matter. Employment rights and other non-crime related issues in cases may be overlooked altogether and these one time only accused will be “mixed up” from the beginning of their case in the same solicitors’ waiting room and dealt with in the same way by the solicitor as those who make their living from crime.
Specialist issues. Specialist team
An issue that has arisen relatively recently and that we suspect will grow in frequency is that of employers withdrawing backing for employees within inquests. It illustrates well the need for expert specialist criminal services provided and funding (there is no legal aid for such cases) through trade unions. We anticipate that this will happen increasingly when the Corporate Manslaughter and Corporate Homicide Act (CMCH) comes into force, with it being used as an excuse by employers to leave employees to find their own legal representation.
A number of NHS Trusts have already indicated to the unions that they will no longer provide legal support to midwives in such circumstances. This is a fundamental misunderstanding of and over-reaction to the CMCH which will leave midwives dependent on their union’s legal service and makes them vulnerable to being scapegoated when things go wrong. We are using our expertise and our cross union links to point that out to all our clients and employers too.
On a similar point, Thompsons’ CLU has recently received instructions to start the defence of a Utility Manager who has been charged with manslaughter by way of gross negligence. A conflict arose between him and the employer making it imperative that the client received separate representation. It became clear, at an early stage, that the employer was looking to make our client a scapegoat. In addition to the criminal investigation he will face a Health and Safety Executive investigation and be required to give evidence at an Inquest into the death.
We are often instructed by Unite (T&G section) where there are conflicts involving members charged with driving offences. The fault of an employer in, for example, allowing a heavy goods vehicle to be driven in a dangerous condition, can be easily passed on to the employee. It is essential that the member is individually represented, but it is also vital that trade union funding is available to do so, given the unavailability of legal aid for such offences.
Thompsons’ strength as a niche firm lies in our ability to appreciate the bigger picture, especially when advising, for example, on whether or not to accept a caution – something that a teacher or care worker may quite innocently agree to without realising the very adverse long term implications of such a seemingly innocuous request. Our exposure to the employment case means that we are very often able to cross-reference statements made by witnesses against those made to the police.
We acted recently for UNISON member John Elliott, a police employee who was interviewed by the police in relation to an allegation of misuse of CCTV equipment. No further action was taken by the police, and yet his employers sacked him even after he won an appeal against his dismissal. Collaboration between our criminal and employment departments provided a strong case to the employment tribunal and he was subsequently awarded a five figure sum in an out of court settlement.
We also represented a care home worker who was charged by the police with stealing from vulnerable adults in her care. She was sacked. She was cleared of all charges after a five day trial.
Thompsons: a niche criminal practice
In paragraph 4.61 of the consultation paper, niche work is described as being services for particular types of cases or client groups. Thompsons’ work fits that categorisation. Other distinguishing characteristics are:
- a very high proportion of clients who give full accounts in interview at pre-arranged police station interviews;
- a very high percentage of police station cases which are marked no further action;
- a high percentage of clients who plead not guilty in both Magistrates Court and Crown Courts;
- a extremely high rate of acquittal (95%).
We are encouraged by paragraph 4.64 which envisages a form of national contract.
We welcome proposals for a single contract covering our national network and cases, with a single contract manager and one point of claim for remuneration. We believe this would lower the administrative burden and costs for both the Legal Services Commission and for us.
Our instructions are small in number (570 in 2006 and 1143 in 2007) and are geographically spread. In 2006, of the new cases we received, 28% were in the North East, 25% in the North West, 19% were in the Midlands, 14% in Yorkshire and 14% were in Wales and the South West. In 2007, of the cases we received, 19% were in the North East,15% in the North West, 13% in Yorkshire, 21% in the Midlands, 14% in Wales and the South West and 18% in the South East.
We estimate that total spend on lower end criminal work across all our offices is £350,000 a year.
In the context of contracts let to more local high volume providers, we doubt that the impact of our work on local providers would amount to more than the “loss” of one or two cases per year in a few “local areas”.
We would accept “local” rates for police station work or Magistrates Court work if the latter becomes subject to a local rate system, although it is our view that nationally administered prices for Magistrates Court work is an adequate system that provides good value for the taxpayer.
We would wish to retain our Crown Court work as part of any contract. It is not at all clear that BVT will initially encompass the Crown Court but given the unique characteristics of our client base we believe continuity of service throughout a case and our expertise are important elements of the service we offer.
We have a peer review “mark” of 2. Paragraph 4.69 raises other possible measures of quality, and in particular the solicitor to fee earner ratios. In a national niche firm based on specialisation, we would expect a high ratio of solicitors to fee earners of 1-1.
Good employment practice
Thompsons is a fully unionised firm with a strong belief in proper employment rights and good working conditions. There is a danger within a tendering process that the desire to lower price on either side of the purchaser and supplier equation may lead to casualisation and a loss of employment rights under the guise of “flexibility”. We believe it is important in government led tendering processes that minimum employment rights in supplier organisations should form a part of the contract.
In responding to the questionnaire our intention is to limit ourselves to those questions which deal with the issues of niche providers.
33. Should special provisions be made for niche providers and do you believe that we have correctly identified the types of provider captured by the term “niche”?
Yes. There should be special provision for niche providers.
We appreciate that other organisations may present difficulties with regard to definition, and we have noted that in your consultation paper you include the example of the Howard League for Penal Reform, who specialise in work in the context of prisoners. You are though dealing with a mature market where there are a number of organisations undertaking speciality work, and who, because of their expertise, provide services which are highly valuable to their clients and, if they are pursuing test cases, to others. We believe we also provide good value.
You have tackled the issue of value by moving Crown Court work into a graduated litigator fee system. This provides a strong degree of administrative control, and in that context, we believe you could allow a number of niche organisations to continue with particular forms of contract that are not dependent on local volume or geography.
34. What criteria should firms meet to qualify for access to niche work?
Criteria would include:
- acting for particular types of clients;
- high success rates;
- the ability to deal with multi-faceted issues within a case, such as employment rights.
As stated above, the ability of our CLU lawyers to consult with their ERU colleagues on any employment implications of a case and, conversely, ERU lawyers to enquire with the CLU about the details of the previous criminal case can substantially strengthen a client’s criminal defence or employment claim.
The ability to service cases across England and Wales is also important, as is the administrative capacity to operate a single point of contract.
35. Do you consider your firm to offer a niche service? What would you classify as niche work?
Yes. Thompsons offers a niche service to members of Trade Unions.
Niche work could be defined as having a significant degree of specialisation within the team able to provide a service nationwide, and which may have attached to it significant ancillary legal matters such as employment rights. The defendants are from high profile professions who deal with the public and if acquitted will continue to do so. Often the outcomes are significant to a wider population of people than the litigants.