A new approach: access to justice in criminal cases

Anyone concerned over the need to check the power of the police and prosecution authorities by providing a counter-balance holding these state funded entities to account may find this paper helpful, writes Robin Murray. It is a proposal to save millions of pounds of tax-payers’ money whilst at the same time preserving independent access to justice, an essential pre-requisite to prevent abuse and injustice to which anyone of us, high or low can become a victim.

The present economic crisis has placed such a strain on so many areas of public private and commercial life in the UK that it is increasingly likely that the present method of funding criminal legal aid will continue to face cuts unless alternative methods of funding are adopted. The alternative is to accept a continuing decline in access to justice through legal aid or its replacement by low quality factory firms created by a competitive tendering process (not supported anyone save for a few enthusiasts at the MOJ).

The following examples of competitive tendering in action are not encouraging.

  • The ‘The Ministry of Justices privatisation of court interpreting services became ‘fully operational before it was ready’ and was initially ‘wholly inadequate’, according to a highly critical report by the National Audit Office.’
  • The collapse of the one of the three CDS Direct telephone advice companies was another example (see HERE).

The fact that two previous attempts at introducing CT in respect of legal aid have failed might suggest to those willing to learn from experience that our system is uniquely unsuited for this process (for a myriad of reasons that can be and have been explained). There are better ways to reform legal aid funding.

Cut backs
One of the reasons we are admired throughout the world and regarded as a safe place to visit, live in and invest in is because we have civilised values. One aspect of these values is the fairness of our criminal justice system. Nevertheless one has to face the political reality that access to justice is extremely low on the list of priorities for ministers. Coping with the demands of the treasury for more and more cut backs is what is high on that list. (When the miscarriage of Justice cases finally force their way through to public consciousness Ministers will have moved on. Politics is invariably short term).

So we have to face the reality that there will be no damascene conversion from the body politic that will save access to justice. It is not a cynical approach as most politicians are not evil or actually trying to create unfairness. They are simply trying to save money because they are required to do so.

The system will collapse not out malice but through neglect and sheer lack of understanding of the real and dire position of legal aid firms. But collapse it will.

In addition yet further cuts are now announced without waiting for evidence as to the effect of the last round of ‘savings’ in terms of impact.

Please do not underestimate the acute financial difficulties facing many firms caused by low legal ad rates and the catastrophic effect on these firms caused by the 30% down turn in volume of work. Although this downturn reduces the legal aid bill it means the old nostrums for survival by expanding workloads through recruitment of duty solicitors no longer works.

Winner’s curse
Consider the impact this will have on the competitive tendering bidding process. The ‘winner’s curse’ will operate here. There will always be people stupid enough to dramatically underbid every other firm in the region to monopolise market share. The rates are so low and the amount of work so dramatically reduced that the whole concept of tendering seem curiously outdated and dangerous to the well being of the ‘winners’, the MOJ and the country.

It will be a debacle and rapidly unravel to great embarrassment. What should be frightening is the prospect that once out of the market the MOJ will have no replacement firms to turn to and fill the gap. This is inevitable and we are at a loss to understand why the MOJ cannot see the dangers.

The Government is actually missing a real opportunity to save the tax payer substantial amounts whilst at the same time avoiding the inevitable collapse by wedding competitive tendering to this current but outmoded method of funding access to Justice.

A new approach to legal aid
1. Before the election a paper rather grandiosely named A new deal for legal aid found considerable favour with MOJ shadow Ministers before they were moved to other posts and bizarrely the shutters came down on further discussion. It is a blue print that attracted attention for a reason. It is a better concept than the competitive tendering approach, which in opposition the shadow Ministers wisely wished to abandon. Check with them individually, although all politicians in opposition are opposed to competitive tendering, at least until they get into Government and meet their civil servants. Now the Labour party are in opposition again they are against competitive tendering in the same way Conservatives were until they got into Government. (If there were a nuclear attack cockroaches and competitive tendering will be the only survivors. Rasputin was easier to kill).

Fraud Levy
2. Briefly the new approach is a combination of a levy on the banks in respect of the huge cost of fraud cases and replacing general criminal legal aid largely with a universal legal aid loan system underwritten by Government but designed to reduce huge amounts of expenditure. It is ‘universal’ in the sense that all accused can access a legal aid loan but all repay through the tax and benefit system some immediately, others by variable instalments fixed by the court. The ‘polluter pays’.

3. The Financial Services Authority has a statutory duty to reduce crime. It polices the financial sector. As Fraud and related offences contribute massively to the cost of legal aid especially in the larger cases We propose a levy upon all FSA regulated firms to contribute to the cost of legal aid. The LSC/MOJ passes the bill to the FSA who pays the bill. Think motor insurance bureau and you will get the idea. As the banks have largely caused this financial mess a levy upon them seems rather appropriate. A levy would make people feel happier about knighthoods handed out to those who presided over financial mismanagement of the banks.

Legal loans to replace Legal Aid
4. The disconnect between the public and legal aid is dangerous and unsustainable. In the majority of cases universal legal aid should be restored but in the form of a loan underwritten by the Government payable only upon conviction. It should be collected through our very efficient tax system and benefit system by deduction at source. For tax-payers think student loan without an income threshold. All convicted must pay the lower standard fee and all are entitled to a basic minimum service. The two agencies should communicate when someone falls out of tax or benefit. There is no need at all for investment in expensive technology beyond email communication between departments.

5. It is paid only by the guilty. Legal aid is granted from the outset. The innocent pay nothing. For Crown court cases the figure is capped and assessed only at the end of the case upon conviction. Vast amount of bureaucratic costs can be swept aside at all levels. Why investigate at the outset at great expense the means of the innocent with all the rigmarole of assessment and then re-payment on acquittal? It should be part of the sentencing process for only the guilty.

6. The efficient duty solicitor of choice system is brought back but at enhanced rates to reflect the growing number of cases dealt with on the first hearing date. (This system efficiently retains the link with the clients’ own solicitors who are probably more familiar with the case from dealing at the police station and more familiar with the clients personal history). This will not be means tested and as these are the sort of cases to involve adjournments for trial or sentence there will be only a limited amount of cases where the least well off clients will be have this legal aid loan additional cost. The higher duty rates will be justified by the absence of lower standard fixed fees for one off one day hearing cases. Less bureaucracy and less delay in the system. Less cost overall.

7. Cases adjourned for pre-sentence reports (where too complex to be dealt with by a short ‘stand down’ report) and trials, will attract fixed fees, both Lower standard fees (LSF) and higher standard fees but will not be means tested at all in the Magistrates court (removing a whole tier of bureaucracy) as the LSF will be repaid irrespective of means. A loan will be guaranteed from the outset on these more complex adjourned cases to cover defence costs where there is a conviction. The better off can pay at once or at a faster rate but others will repay along with any other financial obligation imposed by the court. The poorer clients will take longer but they will repay through the tax and benefit system.

The Magistrates already fix the rate of repayment for prosecution costs and they will do the same for the legal loan. There is no need for an in depth and expensive means assessment. If the convicted person objects to the repayment rate (not the amount) there will be a procedure at a subsequent means inquiry court (no legal representatives required – same as now) for a review with supporting documentation setting out the financial position. But there is no escape from this obligation. Other than those cases dealt with on the first day the guilty finance their legal representation with the help of an immediately available non means tested legal aid loan.

8. Some will not wish to repay a loan and that is their choice. (as indeed was committing the offence).That will save some costs o the fund. Youths are exempt if in care. (Parents pay if not). This will be offset by those who wish to have a loan that are at present excluded by means testing. As it will bring in more than HMG wished to save as most will be recovered, the overall rates should be increased for full legal aid. Most of this will be recovered through the tax and benefit system.

9. The rates will remain below private rates and it will be up to the profession to sell a more expensive Rolls Royce private service to compete with the loan systems. Most firms do not rely on private cases to survive and this plan is aimed at the majority. The legal aid loan rate is self-regulating as if set too high and unaffordable there will be little take up. Therefore some independent input is required to prevent unscrupulous future Governments fixing the rates to absurdly high levels and thus removing access to Justice through an unfair fixed rate mechanism. There are precedents for this as mentioned by the Law Society in previous submissions on CT.

10. When the CPS loses a contested case, a Defence Cost Order in favour of the LSC should be made to encourage discipline in charging decisions. Why should the LSC budget the cost of CPS failure? They lost. They pay.

11. There are many other issues including the gross inefficiencies in the system ranging from the Crown Court (listing issues) to prisons (visiting absurdities), unfreezing assets of defendants to billing nonsense’s all of which should be addressed with consequent significant further savings. We can supply these in full detail if requested.

12. Instead of whipping up totally unnecessary public hostility in the press by confusing turnover of large legal aid firms with profitability or demonising a handful of the higher paid counsel, pay one fee on the case to firms who will negotiate with Counsel a fair and responsible fee appropriate to the case and the country’s finances and subject to taxation by the authorities over a certain amount.

The over-supply of duty solicitors for the available work
1. Duty schemes have been swamped by the effect of fragmentation in the profession. This destabilises existing firms. Of course the government professes to love competition but these small outfits are not going to survive the arrival of alternative business structures (ABSs) in the legal services market. If competitive tendering is defeated, we are still left with this issue and the growing problem of poaching which the SRA is incapable of adressing or have no will to address.

2. To enable small and medium firms to remain viable in a shrinking market we will have to adopt a fairly ruthless approach which may involve limiting duty solicitor membership to ‘one lawyer to one scheme’ or at most two schemes. This will restore some market stability which used to be present but is now missing.

3. This will involve a market shake up and may result in fewer firms. It will thus not be met with universal approval in the profession (but it is a swings and roundabouts situation – ‘you come on my scheme and I will go on yours’). It will help guarantee the long term survival of the remainder and stop the present absurd situation of hundreds of solicitors on each rota of multiple schemes where clients are represented by firms to whom they have to travel miles to see at their own expense.

Summary
What is proposed here will work whereas competitive tendering will not (even on the third attempt). Money will be saved and access to justice obligations met. Meet with us to ‘put flesh on the bones’. Set up a joint working party involving relevant parties to deal with the functionality of the proposal as between the HMRC and DWP and between the MOJ and FSA etc. With strong political leadership you can bend bureaucracy to your will on behalf of the public interest.

 

 

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