Ministry of Justice - Legal Aid Funding Reforms
Thompsons Solicitors is the UK’s most experienced trade union law firm. It operates a specialist criminal law unit from seven regional centres providing national coverage for union members accused of work-related crimes.
The Thompsons criminal law unit achieves enormous success, with 95% of referrals either dealt with as “no further action” or our clients are acquitted.
Thompsons supports government initiatives that reinforce legal aid as a vital provision for many people in the UK. The firm agrees with the comments of Lord Bach that Legal Aid expenditure must both focus on the people and issues “where Legal Aid adds most value in terms of outcomes” and “ensure a fair return for providers” so that “Legal Aid continues to be sustainable over the longer term”.
We agree that Legal Aid can literally change people’s lives, as well as keeping families together and, on occasions, preventing a decline into criminal behaviour.
However, Thompsons Solicitors disagrees with the premise of this consultation paper that access to civil legal aid is dependent upon a reduction of criminal legal aid provision.
In Thompsons view, the government having decided to cut £9m from the legal aid budget has then sought to identify where to find the savings irrespective of whether there is any genuine rationale for doing so.
Thompsons’ clients come to us as referrals through their trade union. They are typically public servants such as teachers, nurses, fire-fighters, ambulance drivers and paramedics – professional people normally suspended on full pay, without prior experience of criminal accusations, of good character and in the majority of cases, determined to “clear their names”.
Defending professional people accused of work-related crimes is highly specialised work. It is not work that the average legal aid practice, one used to dealing with people who may be more accustomed to facing criminal proceedings, will have expertise in.
The crossover relationship between the criminal prosecution and employment disciplinary processes and subsequent Criminal Record Bureau and Independent Safeguarding Authority issues is also highly complex.
Across the population of Legal Aid suppliers, we have noted a decline in firms supplying legally aided services.
Any reduction to legal aid rates, at the police station and at committal stage, will act as a deterrent to firms committed to this level of service and, inevitably, many innocent people will be found guilty.
Any drive to lower legal payment rates risks not only creating a fragile economic base among Legal Aid suppliers, but also adversely impacting on employment practices. The drive to “efficiency” and lower costs is most likely to be accomplished by lower pay and greater use of “freelance” employment with fewer employment rights.
The impact of all this would be to reduce access to justice for all defendants.
Police Station Fees
Thompsons Solicitors supports the response by The Law Society on these proposals. In particular, we do not agree that the duty solicitor scheme is oversubscribed. Further, the police station proposals are at odds with Best Value Tendering (BVT) as scheme costs may result in an increase or a decrease.
On the specific proposal, we note that the paper states that oversubscribed areas are “clearly attractive to providers in terms of the fees available”. This does not stand up to scrutiny as it appears to suggest that contracted firms subscribe to schemes that are attractive rather than those which are simply proximate.
Even if the government’s conjecture is true, it only applies within very narrow geographical locations. A firm in Cardiff, for example, will not be chasing “attractive” fees available in London. The more logical conclusion would be that there is simply a larger number of firms dealing with criminal law in the areas that are oversubscribed.
It is later stated that “areas that are oversubscribed also make it more expensive for firms to provide the service, as solicitors must split their time between different duty rotas and police stations in order to gain access to a reasonable volume of work”. If this is so (which we would challenge), then how does reducing the fees address the problem?
The government’s proposal appears to simply compound the problem by making unprofitable areas even less profitable.
The government seems to have seized on the idea that high standard fees in certain areas are due to historically high claims for travel. It is not clear from the paper whether this claim is based on any statistical research or whether it is simply conjecture stated as fact. Given that the government proposals rely so heavily on this “fact”, it is important that this claim is substantiated.
Even if the notion that travel is the main costs driver in police station fees that exceed the average is accepted, to throw a blanket over all such ‘high’ fees is to ignore the diverse reasons why this could be so. Among the schemes targeted are a number of rural areas where the reason travel is a costs driver is clearly not due to local firms targeting ‘attractive’ yet distant schemes but because of the low population density of the area itself.
Fixed Fee Committals
As with the police station proposal, fixed fee committals are also at odds with the MoJ’s BVT policy and will lead to serious uncertainty over payments for committal hearings and post committal (Crown Court) work.
The MoJ proposes replacing the present standard fee scheme in relation to work undertaken in the Magistrates Court in cases committed from the Magistrates Court to the Crown Court with a fixed fee. We are concerned, in light of the Ministry of Justice’s other proposal to limit all claims from Central Funds to the equivalent under legal aid, that this proposal would have considerable impact on any future claims from Central Funds in successful defences.
In our view the logic on which this change is proposed in the paper appears spurious. The MoJ appears to be conjecturing that there is an element of duplication in fee earners being able to claim for time in perusing the committal bundle when the same then goes on to form the pages of prosecution evidence on which the Litigator’s Fee is calculated.
This apparent duplication is, we believe, wholly illusory and suggests that the Litigator’s Fee contains some allowance for actually reading each page of prosecution evidence. This is not the case. The Litigator’s Fee scheme was devised on a ‘swings and roundabouts’ basis with the fee claimable being one roughly suitable for a case of that nature.
We refer to the following from the governments response to the consultation on the (then proposed) Litigator’s Fee Scheme in 2007:
…a graduated fee does not pay for individual cases but for a type of case, providing an average payment for that case. For example, any murder case that lasts 8 days at trial and with a prosecution bundle of evidence of some 2,000 pages will obtain the fee of £35,091.60. This will be commensurate with the average payment for such cases but not those at the top or bottom end of the historic payments.
It is clear that the pages of prosecution evidence are simply being used as an indicator of the nature of the case rather than each page eliciting a payment for the reading under the Litigator Fee Scheme.
Why, if you are paid by the page is there, in every case under the scheme, a cut-off point below which no additional payment for pages of prosecution evidence is made. For example, for a murder case running to two days of trial, no uplift is paid on the first 150 pages of prosecution evidence.
Furthermore, the Litigator’s Fee is calculated with reference to the historical average trend of payments in respect of the type of case. This being so, any apparent duplication in respect of reading the committal bundle whilst the case was in the Magistrates Court would already have been accounted for. That is unless it is seriously being suggested that, under the old ex post facto scheme, litigators were claiming for reading the same papers both whilst the case was before the Magistrates and again once the case had been committed.
Of further concern is the inflexibility of a fixed fee. Whilst the MoJ identifies that only 4% of committals elicit a non-standard fee claim that can be significant if the bench reaches the decision that the case should be committed after a considerable length of time.
We would be greatly concerned were there to be no escape clause in relation to the proposed fixed fee as it would fail to adequately remunerate the (admittedly small) proportion of cases where the profit costs greatly exceed the average.
Thompsons disagrees that an anomaly exists by which practitioners in criminal cases receive a fee for file reviews which does not apply in civil cases. It is inappropriate to compare the two areas of practice.
It is intrinsically objectionable that the Legal Services Commission obliges contracted firms to undertake work and then the LSC refuses to pay for them to do so.
The government’s proposals seem not to appreciate the fundamental fact that they do not enjoy the same relationship with experts as they do with solicitors and barristers. Market forces affect the relationship between the Legal Services Commission and experts in a way that is not the case in the somewhat artificial relationship between the Legal Services Commission and suppliers.
In the criminal market, the Legal Services Commission has the advantage of an effective monopoly on the market (with the exception of those few firms who offer services to the wealthy or the commercial market) and can effectively dictate payment rates. The somewhat dictatorial nature of their payment schemes could have considerable repercussions on experts who are not solely dependent on the Legal Services Commission for work and who are free to simply refuse to undertake the work or insist upon realistic levels of payment.
No consideration appears to have been given to what happens should no expert in the necessary discipline be agreeable to acting in a case at the rates imposed by the Legal Services Commission. Is the supplier supposed to fail their client?
It would appear to Thompsons that the Litigator’s Fee in large multi-day trials of serious offences must cross-subsidise the woeful fees available in other more run-of-the-mill matters. Given that it is the same serious cases that generally require expert evidence, the Legal Services Commission would effectively be eating into the slender margins that make criminal work come even close to breaking even.
The proposed rates for experts would appear, from Thompsons experience, to be unrealistically low (and this is corroborated by solicitors who undertake significant amounts of work in other publicly funded areas). If such a proposal is to be furthered, it must surely be the case that the established prior authority system remains in place for such situations when it is impossible to locate an expert of sufficient experience willing to actually undertake the work at the rates proposed.
The Legal Services Commission must adopt an extremely flexible attitude to these fees (such as has not been demonstrated in other areas) unless the system is to fail clients significantly.
On the other proposals, the historical difference between fees charged in civil and in criminal cases would appear to us to be due more to the fact experts have condescended to accepting uneconomic rates in criminal cases rather than that they have been overcharging in civil cases.
We refer the MoJ to the Medical Reporting Organisation Agreement applicable to personal injury claims arising from road traffic accidents or employer’s/public liability. This agreement has at least the benefit of representing actual market forces even though it is somewhat limited in terms of the nature of the experts paid under it.
Thompsons’ response to the consultation questions:
Question 1: Do you agree that, rationalising police station fees in these areas is the right approach to contain costs and discourage inefficiencies?
No. The proposition does not take account of disparities between the regions. Please see comments above.
Question 2: Do you agree that reductions should be made only against areas that are both over-subscribed with above median fees?
We disagree with the proposition that any significant inequality exists. Practitioners should not be subject to any further erosion in legal aid provision. Please see comments above.
Question 3: Do you agree with the proposal to replace the current standard fee with a Committal for trial fixed fee?
We disagree with the proposal to replace the current standard fee with a committal for trial fixed fee. The proposed single fixed fee of £318 (excluding VAT) is inadequate remuneration for work undertaken at this point in criminal proceedings.
We contest the proposition that work is duplicated at committal and post committal. Please see substantive comments above.
Question 4: Is it reasonable in most cases for prosecuting and defending counsel to expect the same level of reward?
Thompsons Solicitors has no comment to make on these proposals.
Question 5: Should harmonisation be achieved in more than one stage?
Thompsons Solicitors has no comment to make on these proposals.
Question 6: How quickly should we aim to move towards harmonised fees?
Thompsons Solicitors has no comment to make on these proposals.
Question 7: Do you agree with the proposed hourly rates based on current guidelines are a reasonable starting point?
We do not consider the proposed hourly rates represent a realistic rate of remuneration for most experts instructed in criminal proceedings. The rates do not adequately encompass senior experts and will result in limiting choice amongst criminal practitioners. Please refer to substantive comments above.
Question 8: Are there situations when this would not be appropriate? If so, what would they be and why?
See response to Q7 above. Further, please take note of substantive comments above.
Question 9: Are there situations when this would not be appropriate? If so, what would they be and why?
Thompsons Solicitors has no comment to make on this proposal.
Question 10: What are the circumstances when prior authority would need to be sought to go above the proposed rates?
Expert fees may rise above the proposed rates when instructing from outside the practitioner’s locality. Such circumstances may arise where Crown, HSE and other agencies have exhausted appropriate experts in any one area or where a conflict arises between co-defendants and each instructs separate experts.
Further, expert fees can go above proposed rates when visiting locus (e.g. Jury visits). Please refer to substantive comments above
Question 11: Are there any circumstances where fixed fees would be appropriate, for example DNA and GP reports? What should the fixed fees be?
We see no circumstances where fixed fees would be appropriate in criminal proceedings. Fixed fees are unhelpful for criminal law practitioners as experts are often asked to provide additional reports where analysis (drink driving/DNA cases) is inconclusive.
Please refer to substantive comments above.
Question 12: Are there particular types of experts who may cease to do the work for the proposed rates? Who are they and what can be done to address this?
Senior medical and engineering practitioners may cease to do work under the proposed rates. The proposed rates will severely reduce the breadth of experienced experts willing to undertake criminal litigation instructions.
Question 13: What factors lead to issues with supply in some areas? What can be done to address these?
Factors referred to at the response to Question 10 lead to issues with supply in some areas. Allowing greater flexibility in instructing experts outside of the practitioners locality would help to address this issue.
Question 14: Do you agree with the Initial Impact Assessment? Do you have evidence of impacts we have not considered?
In our view, the increase in remunerating cases that are committed for Crown court trial is created by the earlier changes to legal aid access. Those defendants, charged with an either-way offence, who fail a means test in the magistrates are likely to elect Crown court trial. We are sure that the statistics will change once means testing is implemented for Crown Court proceedings.
Question 15: Do you have any information or views on the Equality Impact Assessment? Do you consider that any of these proposals will have a disproportionate adverse impact on any group? How could any impact be mitigated?
Please refer to substantive text above. We are in no doubt that the proposals will have a detrimental impact upon BME firms.
Question 16: Are there alternative proposals you would suggest to reduce criminal legal aid expenditure?
Thompsons does not agree with the premise of the question as we are resolutely opposed to any further reduction in the provision of legal aid in criminal proceedings.