PROFESSOR ED CAPE and PROFESSOR JUDITH MASSON, RT HON SIR ANTHONY CLARKE, RT HON SIR MARK POTTER, and RT HON LORD JUSTICE THOMAS
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Taken before the Constitutional Affairs Committee
on Tuesday 23 January 2007
Mr Alan Beith, in the Chair
Mrs Si?n C James
Dr Alan Whitehead
Witnesses: Professor Ed Cape and Professor Judith Masson, gave evidence.
Chairman: Professor Masson and Professor Cape, welcome. It is good to see you both again. We have seen you both in different capacities in the past. We have to declare our interests first, this being a public session.
Bob Neill: I am a non-practising barrister.
Jeremy Wright: The same goes for me; in the field of criminal law.
Keith Vaz: I am an employed barrister, but I do not do legal aid.
Q104 Jeremy Wright: Professor Cape, may I start with you and ask you about the basis for the Carter Review? As a Committee we would like to think that Lord Carter's conclusions are based on a solid foundation of evidence and research. Is that your perception? Has there been adequate research on which Lord Carter could have based his report or not?
Professor Cape: Basically not; not in my view. It depends quite what you are looking for, but if you are looking for research to produce results on why legal aid costs have been increasing, then as far as I am aware there is only one piece of research that has ever been done on that, which was research that Professor Richard Moorhead and I did for the Legal Services Commission in 2005. The results of that were quite controversial because rather than see it as being principally the lawyers themselves who were driving up the cost, what we concluded was that it was principally government policies and changes in procedures which were the biggest drivers of cost. What we found was that it was very important to make a distinction between the three major areas of criminal legal aid, Crown Court, Magistrates' Court and police station advice and assistance because the pictures were quite different between the three. The only area of major increase in expenditure has been Crown Court legal aid and that has been true over the past five or more years. It is very difficult to get to the facts about this because the statistics which are recorded in relation to legal aid expenditure do not simply match up with the number of defendants who appear in court and who make the claim for legal aid, so it is actually quite difficult to get at root causes. What we found with the Crown Court was that quite a large part of the increase could be accounted for by an increase in volume, an increase in the number of claims, and since most defendants in the Crown Court get legal aid that meant that there was an increase in the number of cases appearing before the Crown Court and that was obviously exerting upward pressure on expenditure. The average cost per claim did not and has not significantly increased; it has increased, but not that significantly. If you look at volume and take the period between 2000 and 2003, then the volume of claims increased by 10%. Of course it is the expenditure on Crown Court legal aid which makes up the vast majority of the increase in legal aid costs. Just very briefly to complete the picture and come back to the question, expenditure on Magistrates' Courts' legal aid essentially can be discounted in terms of increases to legal aid expenditure. If you look at expenditure over the past 12 or 13 years, expenditure has more or less tracked inflation throughout that period of time. Many people attribute that in particular to standard fees, which is the method of payment for solicitors in Magistrates' Courts. There has been some increase in volume. I am surprised there has not been a greater increase in volume, particularly because of the increased use of custodial sentences by Magistrates' Courts, which is bound to have an upward pressure on the numbers of those who get legal aid orders, and expenditure on the average cost per case. To me it is surprising that Magistrates' Courts' costs have not gone up more than they have but basically they have tracked inflation. As far as police stations are concerned, the overall expenditure more or less tracked inflation until the turn of the century. There was an increase then, but for the past four years expenditure has been increasing at the rate of about 5% per annum, so a little bit above inflation. That is almost certainly because the number of cases has gone up. Why has that gone up? Because, apart from anything else, things like the Government's Narrowing the Justice Gap policy specifically wants more people arrested and processed. More people are being arrested and processed and therefore almost inevitably there is going to be a greater number of people wanting a lawyer at the police station. So in many respects, yes, the increase there is not that significant. In terms of expenditure there has been an increase, of about 5% per annum since 2001 and an increase in volumes of about 4.4% per annum since then; so expenditure has gone up but volume has gone up more or less to match that. The problem, going back to your question, is that Carter did not really conduct any research to try to understand in any greater detail why legal aid costs have been increasing and that is a fundamental problem. If you do not understand why they have been increasing and do not understand the true nature of that increase - because, although in overall terms it is quite significant, the vast majority of that comes from the Crown Court and quite a large proportion of that increase is accounted for by a very small number of cases - if you do not understand why it has been going up, I do not understand how you can know whether the proposed solutions are going to solve the problem. In general terms my view is that the proposed solution will not solve the problem because the fundamental causes have not been understood, let alone been tackled.
Q105 Jeremy Wright: Coming back to the specific causes for the increase in the budget, from what you are saying it is pretty clear that the increase comes about as a result of Crown Court criminal cases predominantly.
Professor Cape: Predominantly.
Q106 Jeremy Wright: And in relation to those, the very high cost cases are a significant element. Across the piece, taking into account VHCC cases as well as the standard Crown Court criminal cases, have the costs per case
noticeably increased and, if they have, what might be the explanation for that?
Professor Cape: I am sorry but in a sense this is a slighter point. It has actually been difficult with Crown Court cases to work out whether and to what extent the average cost per case has increased, because the notion of a case has certainly changed over the period since the beginning of this century. Cases are paid for in terms of the claims which do not necessarily relate to the number of cases and there were changes in that relationship between the number of cases and the number of claims in the early part of this century. As a result of that, you do not have a fixed notion of a claim by which you can then assess average costs per claim.
Q107 Chairman: What is the difference between a case and a claim?
Professor Cape: There is first of all difficulty in determining what is a case: is a case one defendant in relation to one or a number of charges? What happens if those charges change during the course of the trial process and also what happens in terms of whether co-defendants are represented by the same lawyers or not? You have that kind of problem. A case may be conceived as being one client being represented in relation to either one or a number of charges or indictments in the Crown Court, but where there have been changes is in whether the lawyer can only make one claim in respect of that case or whether they can make a number of claims. It may sound odd that you could make a number of claims in respect of the same case, but the rules have changed both in the Crown Court and indeed in the Magistrates' Court and indeed actually in the police station as to the stage at which you could make a claim. To give an easier example, in the case of the police station, in the past if a lawyer went to a police station for a client on one occasion and that client then was bailed back to a police station on a future occasion, but in respect of the same case - so they were not charged on the first occasion, they had to go back - in the past the solicitor could make a claim for the first attendance and a claim for the second attendance.
Q108 Chairman: Overall, the number of claims which can arise from each case has tended to go down rather than up.
Professor Cape: Yes, and unless you can take account of that, it will appear as though the average cost per claim will have gone up, but that does not mean to say that the average cost per case has gone up. If you are going to make your proposals as to how you should deal with this, then you need to get to a very good understanding of that because if you do not, really all you know is what the overall legal aid expenditure is but you cannot rely on figures such as the average cost per claim.
Q109 Jeremy Wright: Following that through, it would be equally difficult presumably to make any kind of assessment as to how efficiently each individual criminal lawyer was dealing with each case and whether or not they were making appropriate economies.
Professor Cape: That is right. One of the things that I think is a great deficiency is that, as far as I am aware, no work has ever been done to try to work out what work a lawyer should do in relation to a case. Of course, you would have to look at different kinds of cases; let us say you would have to separate something like a murder or a rape from something like a relatively straightforward theft. However, no work has ever been done to try to gauge or even quantify what work ought to be done in respect of a case. It has always really been done on the basis of what has been claimed in the past and either it has gone up or it has gone down, without any real understanding of what the constituent parts of that claim are and whether they are justified.
Q110 Jeremy Wright: Accepting the scarcity of research to help you deal with this, Carter obviously focuses predominantly on the costs of criminal lawyers, whether or not they are spending the legal aid budget wisely, and the underlying assumption appears to be that the increase in expenditure on criminal legal aid is because criminal lawyers are not doing this as efficiently as they could.
Professor Cape: Yes.
Q111 Jeremy Wright: What else, in your view, might explain the increase in the legal aid budget?
Professor Cape: When we carried out the research for the Legal Services Commission on cost drivers, we only had a very small research budget and it was carried out over a very short period of time, so we were not able to quantify the various influences. What we were able to show was that a whole raft of changes were affecting both the work that the lawyer had to do and therefore the expenditure. That depended partly on whether you were looking at police stations or Crown Court. Just to give a couple of examples, let us take a relatively recent example in relation to the police station. The Government, as a result of the Criminal Justice Act 2003, have moved to a situation where rather than the police charging suspects, this is largely done by a Crown Prosecutor, who may be located in the police station or may not, depending on the time of day and things like that. In the past, the custody officer would make an almost immediate decision about whether someone should be charged. Now that file has to go to the Crown Prosecutor. The reason why this was done was to try to save costs later on in the process; it would reduce the number of discontinuances because, in the Government's words, it would be the right charge the first time, kind of thing. So it was to save costs later on which it may well do. The problem, thinking about the work the lawyer has to do, is that they are told by the custody officer he is going to refer the case to the Crown Prosecutor, he does not know how long they are going to take to make their decision and the CPS have issued guidance which says that the normal period by which they must make the decision should be within three hours of the case being referred to them by the custody officer. The custody officer will not necessarily know, so the defence lawyer is faced with either having to wait whilst that decision is made, and they do not know how long that is going to take, or going back to their office, doing other work and then coming back again. Why do they need to be there at the time of charge? Partly because of the right to silence legislation going back to 1994, which says that if a suspect is silent on being charged, then adverse inferences can be drawn. That is an example; you cannot necessarily call it what extra work has to be done, but what extra time might have to be spent by the lawyer, either waiting for the Crown Prosecutor to make that decision or going away and coming back again. If they do that, that will of course increase travel time and if you look at police station legal aid, it is travel and waiting time which are the elements that have gone up over the past five years. The part of police station legal aid in respect of advice has not gone up, or only in line with inflation: it is travel and waiting. Well there is one very good example of why it has gone up. It was done to save costs further down the line, which it may well do, but the legal aid implications were never thought through. No legal aid impact test was done, as far as I know, in respect of the knock-on cost for the legal aid budget. If you take the Crown Court, just to try to wrap up the answer to that question, then what our research showed, although the evidence was difficult to get at, was that there was some evidence that the character of the cases being dealt with by the Crown Court has increased in seriousness over time. In other words, less serious cases are now more likely to stay down in the Magistrates' Court so that the cases that the Crown Court is dealing with are more serious and therefore you would expect more work to have to be done and therefore that has implications in terms of costs.
Q112 Jeremy Wright: I suppose the final element is what part, if any, do court delays play in that? Certainly Mr Ne
ill and I will testify to the fact that you can spend quite a long time waiting for your case to be called on in the Crown Court and that obviously has a bearing on cost as well. Were you able to make an assessment of how much that contributes?
Professor Cape: No, we were not able to make an assessment of that and I understand that some work has been done by the DCA on the number of adjournments rather than waiting time. One of the problems for us in trying to find out about the effect of waiting time is that the information is not now routinely collected. Prior to contracting, introduced in 2001, it would have been possible to get at waiting time to an extent, but the reporting information or the information that lawyers had to report to the Legal Services Commission in making their claim after contracting was considerably less than before and that kind of information is not now routinely available. You would have to do a specific research project to discover the information about waiting times and whether they have increased or decreased and, as far as I know, that has not been done.
Q113 Bob Neill: Did your research suggest that perhaps some of the procedural changes which have been made to reduce the amount of time and complexity of issues in front of the jury in criminal cases has increased the workload that may be claimed by lawyers under legal aid, for example the preliminary hearing on their character applications or written submissions in advance on applications to have video-link evidence, something of that kind?
Professor Cape: Unfortunately, we were not able to look at that at the Crown Court stage, partly because it was a very short research project. The Legal Services Commission wanted the results within three months; as is so often the case, they want the answers before you have even been commissioned to provide the answers. There is evidence from other areas that that kind of thing has an effect. If I can give an example from a completely different area, from the police station stage going into the Magistrates' Court, sometime in the late 1990s, as a result of what was commonly known as Narey, the police were expected to make their cases court-ready because the target at that time was to reduce the amount of time spent between first appearance in court and disposal. In order to be able to meet the targets on that, what that meant was that the police delayed charging people unless they really had to, if it was a significant case or bail was denied. They would bail the person to come back on a future occasion to give them time to make their file court-ready. That kind of phenomenon is common throughout the system and that is why, in my view, as far as legal aid is concerned, if you are going to make changes - and one cannot state too much the fact that what Carter is proposing is a revolution in terms of legal aid - you should not do that unless you understand the way in which the system works so well that you could predict that if you make that particular change, like files having to be court-ready, it is going to have that particular kind of consequence, charging is delayed. That information is just not there because the work has not been done.
Q114 Bob Neill: So if we are to get a real grip on the drivers, particularly on Crown Court defence work for example, then you would need to do more work to deal with that.
Professor Cape: That is my view; yes.
Q115 Bob Neill: And I suppose the growth in disclosure, for example, would be yet another example of that.
Professor Cape: We have many examples. In terms of impact on legal aid expenditure, if you go back to the mid-1990s, you have things like the right to silence changes, which inevitably meant that the quality of advice and the amount of advice had to be greater, disclosure provisions, which originally came into force as a result of legislation in 1996, have been developed by the criminal procedural rules which require defence lawyers to disclose to a much greater extent than they used to, which inevitably requires work to be done.
Q116 Bob Neill: Certainly, wearing my own hat, it is quite common now to find cases where the unused material is greater than the witness statements and the exhibits. I wanted to come on to another point that was made about Crown Court work and that is the concept which seems to underpin a lot of the Carter thinking that the mixture of fixed fees plus front loading is going to incentivise and encourage more economic disposal of cases. Are there risks from your assessment of the material that perhaps run with that? For example, is there any risk of corner cutting?
Professor Cape: If I may put together both fixed fees and front loading and deal with front loading first of all, clearly trying to encourage defence lawyers, but also actually all players in the system and particularly the prosecution as well, to prepare early, the DCA have been going on about this, quite rightly for years and it is a very, very difficult problem to crack. There are all sorts of reasons why early preparation is not done, not just on the part of the defence but also on the part of the prosecution. The problem with front loading in relation to Carter is that it is apparently only being tackled in relation to the defence, but defence early preparation is always going to be reliant on early preparation by the prosecution. It seems to me that Carter does not really say anything about that and is not designed to. However, if you do not have an effective system of ensuring early preparation by the prosecution, you are always going to have problems with early preparation by the defence. It is not to say it is wholly dependent on prosecution preparation, but it is to an extent. As far as fixed fees are concerned, certainly the stability of expenditure in Magistrates' Courts' legal aid has been attributed largely to the introduction of standard fees in the early 1990s. Much as I personally dislike that, that is probably true. One has to be very careful in terms of how you devise your standard fees and how you construct the escape clauses if cases go beyond it. I just did a very quick calculation on Carter in terms of standard fees that he is proposing for police station work. If it is okay, just very briefly, in London the proposed fixed fee for a police station case is ?313 and there is what he calls an escape threshold at 24 hours, so if the lawyer does more than 24 hours' advice, then he can claim per hour on top of that. Therefore, it is an obvious point in a way, if the lawyer spends one hour on a case, he gets ?313 and therefore ?313 an hour. If he spends 23 hours on a case, which he might properly have to do if, for example, it is a murder or a rape or a terrorism case, then, amazingly in a way, they get paid ?13.61 per hour. Then you could play around with that a bit because if you go slightly over the threshold, the threshold being 24 hours, the lawyer thinks that it is nearly 24 hours, perhaps he will come back with a charge or something like that, then it works out that the lawyer gets paid ?15.80 per hour, so massive differences. The Carter argument, and this is a more general argument about fixed fees, is that it is swings and roundabouts and Carter wants bigger firms of solicitors which can absorb those kinds of swings and roundabouts. One problem is that the more you go towards bigger units, the less you get away from any notion of professionalism and the more that the firm is going to be driven by financial consideration and therefore there is inevitably going to be pressure within that standard fee to reduce the amount of time that you are going to spend on that case because that will up your hourly rate and if there is no shortage of work, you just go onto the case.
Q117 Bob Neill: That seemed to be a suggestion that that has been brought out by some research in Scotland that there had been a decline in client contact time and preparation time in favour of volume. Now Carter says that the safeguard against that is in effect peer review that will stop the cutting of
corners, the pressure to plead or not, interviewing the third potential defence witness, something like that. Is that really an effective safeguard?
Professor Cape: No, it is not, not in my view or rather I should say we do not know. I have been heavily involved in peer review from the beginning, working with Professor Avrom Sherr who has been developing it for the Legal Services Commission. I can deal with it in one sense very briefly. There has been no research done on whether peer review works. The Legal Services Commission has adopted it as its major quality assurance mechanism. I believe that is right, but we do not know whether it is a robust enough mechanism to deal with the kinds of problems which I have identified. I was in e-mail contact with a leading criminal defence lawyer only this morning - and you would know his name if I said it, but that would not be fair to him - and he said that his biggest concern is that he believes peer review, and he has been heavily involved as well, is not robust enough to deal with those kind of quality issues brought up by that kind of proposal.
Q118 Bob Neill: The final topic I have is very high cost cases, a separate thing, but we can take it pretty straightforwardly perhaps. Carter is proposing caps for very high cost cases, actually below the current level, so it is a cut in total expenditure. Is there a danger that putting caps on is actually going to prejudice the position of the defendant, the fairness of the trial. If you have the misfortune to be a defendant in a very high cost case you are suddenly told the money has run out in terms of preparation of your defence. How do we cope with that?
Professor Cape: Inevitably there is a danger. I have to say that we were not able, in the time we had available for our research, to get at the issue of very high cost cases and, as far as I am aware again, little or no research has been done on them. One of the things, and this is a suggestion, is that the cost of the defence costs in very high cost cases in part, and it is not to say that there are no solicitors out there packing their bills or anything like that, but one of the factors in terms of determining the defence costs, is going to be the way in which the prosecution determine what kind of case they are going to make of it: how many charges there are going to be, whether it should be conspiracy, et cetera. It could be a very sanitary exercise to have a pilot project where the prosecution, in formulating the way in which they are going to approach this particular area of criminality, should - I do not even know whether they have to consider their own costs - be asked to do is to consider the way in which they construct that prosecution case, put together the charges, what charges there are, et cetera, by reference to what the cost to other stakeholders would be, not just the legal aid budget but also maybe the court as well.
Q119 Chairman: I am going to call Dr Whitehead, but I must just warn both members and witnesses that we have a certain time constraint and we have a number of civil law issues that we want to put to Professor Masson.
Professor Cape: And I have been quite rightly warned very strongly not to take up the time of my friend to my left here.
Q120 Dr Whitehead: Under Carter we are due to go to best value competition to replace the transitional remuneration model of fixed fees. There has been some suggestion that best value might better have been piloted. Why, in your view, has that not been piloted and is it your view that we are possibly moving to a system in this particular field which could actually prove quite inappropriate for what is entailed, whilst not having been piloted to find out whether that is so or not?
Professor Cape: I would have to say, it is justified to use very strong language in relation to this and it seems to me that what Carter proposals constitute is a revolution in legal aid and not to pilot them verges on the reckless. In fact, it is reckless. When the Legal Aid Board as was, the predecessor to the Legal Services Commission, was planning to introduce contracting which was then introduced in 2001, they piloted contracting in a number of areas around the country for a period of two or three years and they employed researchers, of which I was one, first of all to advise them on how the pilot contract should be structured and secondly then to research the implementation of contracting in those pilot areas. As a result of the work that we did, we were able to make recommendations, when contracting was rolled out nationally, about how it should be structured. Most of our ideas were taken on board by the Legal Aid Board at that time and I have to say that contracting at the time was regarded as the biggest change to legal aid that had taken place since the inception of criminal legal aid, but actually its introduction was relatively smooth in 2001. I am not trying to seek credit for that, but I am trying to say that there was a good model of how you make large-scale changes like this. To implement Carter's proposals without that kind of piloting is reckless because, apart from anything else, the changes that it makes will be irreversible. If it results in large-scale damage to the legal aid profession, there is no coming back from that other than over a lengthy period of time. You would have lost all of your older legal aid lawyers who will get out and it has to be said that many of them are getting out as quickly as possible now; they all want to become judges because that is a much more secure future for them. I know many people at partner level who, over the past couple of years, have been doing that and you will not have a younger profession.
Q121 Dr Whitehead: There was a proposal in 2005 to go ahead with a scheme in London for competitive criminal tendering, which could be misread to suggest that criminals are tendering for funds for their activities. That was abandoned in order to wait for Carter and yet Carter then came up with the idea that this should not have been tried in the first place. Were there ever proposals, post-Carter, to reinstate this?
Professor Cape: Not as far as I am aware. They were consulted upon, there was a lot of discussion because many of the profession were very concerned about it, but, from memory, there was a large number of consultative meetings with the profession in London about the introduction of this and then, as far as I know, as soon as Carter was announced, that was the end of that and all was going to depend on Carter. It just seems crazy to proceed without a proper piloting of something which has such potential for destruction of the legal aid profession.
Chairman: I am going to leave to one side the issue of police stations for a moment just to make sure that we cover some of Professor Masson's area.
Q122 Julie Morgan: I am going to cover legal aid remuneration in child care proceedings. I wonder Professor Masson whether you believe that Lord Carter's proposals for a graduated fee scheme for solicitors during childcare work are either necessary or sensible, especially in view of the review done by the DCA and the DfES?
Professor Masson: The real difficulty in relation to public childcare proceedings is that the Legal Services Commission and Lord Carter know much, much less about this system than they know about the criminal system. Lord Carter did a lot less work. He did not even speak to the Family Justice Council and considering the Family Justice Council is supposed to be a key stakeholder and helping liaison with different organisations on issues around proceedings, it was a great shame that he only sent questions rather than came to speak to the Family Justice Council and the questions suggested that he had a very limited understanding of the system. I have to say that goes too for the childcare proceedings review that the DCA commissioned prior to Carter out of A Fairer Deal for Legal Aid. They really did not understand how care proceedings operated. They did not understand
the sort of proceedings that there were. They had no idea how much they cost. Although they identified this in some of the paperwork, they did not really understand sufficiently how making change to one of the four key players in the system, the four key players being the Legal Services Commission, the Court Service, CAFCASS and local authorities, impacts on all the other players. We could cut the legal aid budget but actually if we increase government spending disproportionately in the other three areas, we have not achieved anything and we particularly have not achieved anything for children because these proceedings are not about an income for lawyers or making the courts work more efficiently; these proceedings are actually about getting some very greatly needed help for children and families and that is all not really considered. The original Lord Carter's suggestion for a graduated fee scheme which seems to have been abandoned was based on the protocol. Now, there seems to be a touching faith that the protocol actually operates. The protocol does not operate in the form that is stated in the protocol documents in very many courts. Protocol documents are not prepared, protocol meetings do not happen according to the framework. The labels are given to various other meetings and various other hearings, but the number of hearings is very much larger than appears from the protocol. What is more, out of the review of the protocol by the judicial group, there is an intention, not yet clarified, to recast the protocol to make it more flexible. If you have a structure against which you pay graduated fees and then you change that structure to make it more flexible, even if it were operating, it would be hard to know how the graduated fees should be changed according to that greater flexibility. Added to that, or on top of that, I would reiterate the things Professor Cape has said about lack of knowledge in the Legal Services Commission about care proceedings' costs. The work done for the Care Proceedings Review is all about average certificate costs. The Legal Services Commission cannot say how much a case costs and in any case there may be between two and 14 certificates; there could even be more than 14 certificates. We decided we had to limit the amount of data we collected in the work I am doing at the moment, so we are limiting the data to that sort of size in what we are collecting. If you do an average, if you have three children in a case, a three child case probably costs more than a one child case, but we do not know that. A three child case will have three certificates for children, so the costs of lawyering for the children, which will generally be done by one lawyer, will be divided by three. If there were only one child in that case, there would only be one certificate and the average price of the certificate would rise. It seems to me the Legal Services Commission cannot make any sensible proposals about how these proceedings should be remunerated unless it understands the differences according to who the parties are. The work required in lawyering a child is very different from the work required for lawyering a parent and the work required for lawyering a mother, who really wants to get the child back, is very different from the work required to lawyer the father who happens to have parental responsibility and is a party, but who does not have any interest in the outcome of the case and perhaps pays very little part.
Q123 Julie Morgan: Are you saying that there is no knowledge of this complexity by Carter's review?
Professor Masson: There is no acknowledgement of that in Carter's review and the data which is necessary to make those assessments, for example to average certificates for children or to average certificates for parents, simply does not exist. The Legal Services Commission is unable to tie the certificates in a case together to create a total case cost.
Q124 Chairman: Could they not commission some research using existing data which would have given that information?
Professor Masson: I have just been commissioned by the DCA and the DfES to do the work profiling care proceedings and as an add-on to that, but not because of any request by the Legal Services Commission, I have been asked to collect certificate numbers in order, for a sub-sample of my cases, to be able to link certificates together and get total costs and also be able to relate that to what the cases are like. Actually, we are only able to do that for a sub-sample of our cases because there is no requirement, if cases remain in the family proceedings court, for certificates to be filed. So we cannot collect certificate numbers from the court files because they do not exist in the court files. We are only going to be able to do that for a small number of the FPC cases and probably the majority of the cases in the County Court.
Q125 Julie Morgan: You have warned that poor representation could increase the costs of all the other parties? Would Lord Carter's proposals contribute to this risk?
Professor Masson: The key risk resulting out of Lord Carter is that people will pull out of this work. At the moment, children are expected to be represented by people who are members of the Law Society children's panel. A lot of parents now are also represented by panel members and these are specialist lawyers who have undergone additional training, who really understand this system. The system works best when everybody is represented by panel solicitors. Lord Carter effectively recommends the abolition of the panel. Lawyers will not get an additional payment for being this type of specialist lawyer, so there is no reason for people to be attracted into this work. The existing panel members are an ageing population. They will leave, retire and not be replaced and, increasingly, we will have all the parties represented by non-specialist solicitors, who will move away from the negotiation and identifying what are the real issues and focusing on the real issues much more into litigation and fighting the costs. I would expect there to be more contested final hearings, more delays when people do not ask at the right time for expert assessments of their clients so the cases will take longer. When I did some work for the Legal Services Commission which was just a literature review on why these cases were costing more, increased length was a key factor and was identified in a lot of the literature as a key factor in why these cases cost more. So if you want the cases to be quicker and more focused, you need to have them handled by specialists. Cases that are handled by non-specialists will take longer, they will take longer in the courts, children will be older before there are decisions. If children are above certain ages before decisions are made, it is very much more difficult to find permanent homes for them and they are more likely to remain in the care system with all the knock-on consequences for their lives of that.
Q126 Julie Morgan: Moving on to the use of expert evidence. What sort of contribution does that make to the legal aid budget and is the cost of expert witnesses growing?
Professor Masson: According to the research that the Legal Services Commission produced for the Care Proceedings Review disbursements, a lot of which would be experts' reports, account for about 13% of the budget in care cases and that is slightly up from the figures five years previously when it was said to be 11%. I have to say I do not hold great store by the data they have. Some assessments are very expensive. Over the years the Legal Services Commission has tried various different mechanisms to try to reduce the use of assessments, particularly high cost assessments, and ensure that as small a proportion as possible falls on the Legal Services Commission budget. They would like a lot of these assessments to be done by the local authority beforehand or during the proceedings and their view is that work which should be done by the local authority gets pushed on to independent, legally aided or funded through
the Legal Services Commission experts. There is a real difficultly with that. Those proceedings are about a conflict between the family and the local authority, so understandably parents are not necessarily very happy about the idea that they will be assessed by one of the parties to the proceedings. The courts recognise that. There is a huge problem about the availability of sufficiently well qualified social workers to do assessments in house, so it often is commissioned outside and that leads to very high costs. There is a proposal from the Chief Medical Officer for some forms of assessment, particularly the medical assessments to be done within the National Health Service, but the Chief Medical Officer is very clear in the proposals that additional money will have to come for that and he is looking for money from somewhere, possibly from the Legal Services Commission. It is not a solution. What the Legal Services Commission has done and this has an impact on the lawyering costs is that it requires much more information about what an assessment is going to do before it is prepared to fund it. They want detailed breakdowns of the costs and the sorts of things that are being provided by the costs and that is expected to be provided to the court before the court decides whether an assessment should be allowed. They also say in their guidance notes that these matters should not be negotiated between the lawyers - the apportionment between the different parties and the local authority should not be negotiated by the parties - but that should be a matter for the court. In practice, and this is an indication of how little the Legal Services Commission understands about how the court process operates, the general practice in all aspects within the proceedings is for the parties to negotiate and a proposal to be put before the court which the court will agree. So the notion that the court suddenly decides that the local authority pays a quarter or it pays a fifth or it pays a third does not really fit in with current practice. Again, if we go back to the taxpayer, it is all taxpayers' money. It does not make any difference to the taxpayer whether the ?10,000 assessment is paid ?2,500 by the local authority and ?7,500 by the Legal Services Commission or it is all paid by the local authority or all by the Legal Services Commission. What does matter is if that assessment is not done and this child stays in the care system or the child goes home and is re-abused; that is a cost that falls on the child and it falls back onto the state again and onto the taxpayer.
Q127 Julie Morgan: Has the Carter review addressed any of these?
Professor Masson: Not at all; no.
Q128 Mrs James: Professor Masson you have already talked about the difficulties in calculating the fee levels for child care proceedings. Do you think the new proposals that they are making now - they have suspended one set of proposals and a new set of proposals is in the pipeline - those new fee levels, will be published in time for the introduction of the graduated fee scheme in October 2007?
Professor Masson: Not realistically, because they were in the same position when they produced figures in Carter and after Carter as they are now; they have no more research information. We will expect to collect our data by the end of June and then we have to get information from the Legal Services Commission to tally other certificates with the bills. The Legal Services Commission has agreed to provide that information for us, but they are not funding us, so they do not necessarily have a particular interest in doing that very quickly for us.
Q129 David Howarth: May I just ask you to comment on the proposals in Carter about what happens in police stations, where it appears that what is being suggested is that the system of fully qualified duty solicitors providing initial advice should be abolished and replaced by a system which combines a call centre, telephone advice, doing a kind of triage job and then people in the police station offering advice who would not necessarily be fully qualified, which has been described as a de-skilling process. Can you just comment on that and on the consequences of those changes for those accused in a police station?
Professor Cape: I went back and had a look at his recommendations that advice at the police station need not necessarily be given by a solicitor but by an accredited representative or even a probationary representative, even in duty solicitor cases, and the justification appeared to be that that would enable the new system to work in terms of new payment methodology but he did not refer at all to whether he had even considered the quality implications of that. I was involved from the very outset with the development of the accreditation scheme, which was introduced really as a result of what was a scandal, which was that defence lawyers were using completely unqualified people to advise at the police station. It was actually a very good example of the Law Society and the Legal Aid Board, as was, working together in a very constructive way to develop a scheme which, in many respects, has been quite successful and the research that was done on accreditation in the late 1990s by Professor Lee Bridges did show that it had led to some improvements in quality. There are two problems very briefly. One is that that is the only work that is being done on the quality of work carried out by accredited representatives; in fact there has been no work really done on the quality of work done by defence lawyers now for more than a decade and therefore it is difficult to know whether the work that may be done by an accredited or even a probationary representative, that is someone who has not even passed the accreditation scheme, would be an appropriate quality. At the moment with a duty solicitor case the Legal Services Commission requires that first advice must be provided by a solicitor who can then decide to hand the case on to a representative, if they feel it is an appropriate one. That would go and that clearly has to be of concern because, although it is true that many duty solicitor cases are relatively minor, it might be an excess alcohol case where the person has never been in trouble before and they do not have a lawyer and ask for the duty solicitor, actually quite a few murders fit into that same kind of profile in the sense that the murder suspect may never have been in trouble before. Equally, many of them do go and ask for a duty solicitor and we do not know anything really now about the quality of probationary representatives in particular. Although of course they would not be able to take any indictable-only cases, nevertheless it would represent a decline in quality. Going back to the peer review point, it would be very difficult for peer review, as it is currently constructed, to pick up on that and to make a determination about whether that is an appropriate thing to have done. One reason is that peer review is done on the basis of solicitors' files. The files do not necessary make it clear who the adviser is in terms of whether they are a solicitor or a representative and therefore they would not necessarily know that the advice had been given by an accredited representative.
Q130 Chairman: Surely they should.
Professor Cape: I have been heavily involved in peer review, and they do not.
Chairman: Thank you very much Professor Masson and Professor Cape for your help; we very much appreciate it.
Witnesses: Rt Hon Sir Anthony Clarke, Master of the Rolls, Rt Hon Sir Mark Potter, President of the Family Division and Rt Hon Lord Justice Thomas, former Senior Presiding Judge, gave evidence.
Q131 Chairman: Sir Anthony, Sir Mark, Lord Justice Thomas, welcome. As ever, we are always very glad to have judges in front of the Committee and we have, as you know, worked out an understanding of protocols to make it reasonable and feasible to conduct these kinds of exchanges. We are very glad to have your presence on such an impo
rtant matter as this. You have very kindly provided us with some memoranda, one from each of you, and it would take too long to go through those directly but they are of considerable value to us; the members have seen them and we shall be able to incorporate material from them, some of which may crop up again as you answer questions. We appreciate that very much. I wonder whether I could just start by asking a question which does give you the opportunity to refer more generally to some of those issues. The Judicial Executive Board has expressed concerns about the potential impact of the Carter reforms on the local availability of quality legal advice and produced this phrase about a "scraping of civil legal aid to the bone". Is that a sound judgment?
Sir Anthony Clarke: It is perceived as a serious risk. There are some aspects of the Carter proposals which do rather worry us and in summary they are really these. They stem from the concern that all civil judges have that it is very important to maintain the level of access to justice, especially for the most disadvantaged members of the community who cannot really represent themselves and, unless they have publicly funded legal assistance, they are stuck. At the moment there are quite a number specialist practitioners, civil legal aid practitioners, who provide specialist legal services, for example in the mental health field or in housing, and it is very important that when these proposals are taken forward these specialists should not be lost to the publicly funded community as it were. One of Carter's proposals is to introduce something which is called a CLAC, which is a community legal aid centre. He has another proposal which is called a CLAN, which is a community legal aid network. The difference between a CLAC and a CLAN is that he has this idea of centres being developed which will be essentially a franchise where solicitors will be in one place, and one can see the force of that, provided that care is taken to ensure that in any such CLAC or franchise or firm there is sufficient specialist knowledge and experience. It is quite wrong to think that you can simply put up your flag as a solicitor and say you do civil work, but actually it is much more complicated than that. If you are an expert in housing, you may know nothing about mental health and it is no use having just a generalist and then being expected to answer any kind of coherent question on mental health. Anybody who has sat in the Court of Appeal knows that and we have the assistance of counsel. That is one area we are very concerned about. I do not know about scraping to the bone - we shall obviously have to wait and see - but the key features are to ensure that there is sufficient availability of solicitors and that involves making sure that they are paid a reasonable amount. I have nothing to say about the actual numbers, that is nothing to do with me at all, but it is obviously very important that these new contractual arrangements do provide reasonable remuneration whatever numbers are arrived at. There have been problems in the past with civil practitioners giving up publicly funded work for economic reasons and it is obviously very undesirable that that should occur. Perhaps I could add one other thing which does concern us a lot which I referred to in my note. We quite understand that these reforms have been led by the problems with criminal legal aid - the famous black hole in the DCA funds - we quite understand that something has to be done about that and there are all kinds of proposals which John Thomas will no doubt speak to, but these may give rise to quite a radical shake-up of firms. Maybe they are designed to do that, but at present some firms do crime, civil and indeed family. If the result of this shake-up were that some of those existing firms might go out of business, one does have to ask what is going to happen to the people in those firms who are presently doing civil and perhaps also family. That is another worry. One proposal that the Civil Justice Council has made is that before the civil proposals are put into force, some monitoring should be carried out of the impact of the criminal reforms so one can see what impact the criminal reforms, when they have been working for a bit, have on the overall situation. Where we would counsel against rushing headlong into introducing the civil aspects of this, it is really the criminal parts of it which have caused this problem and it is obviously something which should be put into operation. We do all urge some caution and we rather suspect that Lord Carter did not really carry out any research into this; he obviously could not carry out much research since of course it has not happened. I do know the CJC suggested a delay of three years; well that is probably rather a lot but some consideration seems to us to be desirable.
Q132 Chairman: Is that the civil judiciary telling the criminal side to go first while you wait and see what happens?
Sir Anthony Clarke: Yes, but for what, to my mind, is a sensible and reasonable reason.
Q133 Chairman: If you are putting yourself in the shoes of a minister, which it is very unfair to ask judges to do, is there not a sense in which the entire profession and the judiciary, looking at the sorts of issues you mentioned, must give ministers the feeling that whatever they try to do to contain costs, there are very compelling reasons against them. There is no way they can move.
Sir Anthony Clarke: We would not support that approach. Of course there are some particular aspects of these proposals which we very much support. For example, there is some very good material in the Carter review encouraging non-litigious methods or approaches, trying to keep people out of the courts. There are all kinds of ADR schemes about these days and ombudsmen of every kind which do keep people out of the courts at no cost to anybody really except possibly their service provider; so there are areas. Indeed another part of my paper relates to the idea of the developments and research into something called a SLAS or a CLAF which you may have seen, which again is very promising and which we know the DCA is interested in. I would not like to give the Committee the idea that we are against all these proposals: we are just anxious that they should go forward in a measured way so that we can see that the key thing, which in civil is access to justice, is not imperilled.
Q134 Chairman: Are you worried that you will get more unrepresented litigants?
Sir Anthony Clarke: We have quite a lot of them already.
Q135 Chairman: Are the numbers increasing?
Sir Anthony Clarke: Well they certainly have increased. Again, you will see in the passage in my paper entitled "History", which describes the way in which legal aid has been reduced radically from civil over the years, that the trouble is that civil is rather the poor relation really. I reckon that governments, not just this Government, are interested 85% in crime, about 12.5% or 13% in family, leaving poor old civil coming on behind and we can see that in what has happened over the years. Actually people with problems which give rise to civil dispute, especially in the mental health and housing fields, are extremely worthy of assistance and indeed may come from the very same families who find themselves before the criminal courts, so we are worried. In answer to your particular question, since that happened over the years there has been a big increase in litigants in person and it is very difficult for them. I wonder how many of us indeed could afford legal assistance, but that is another question.
Q136 Chairman: And is peer review a potentially robust mechanism to deal with any risk of drop in quality?
Sir Anthony Clarke: I think so myself; I do not know what John thinks.
Lord Justice Thomas: Advocacy, it is a much more difficult topic to assess. As Professor Cape said, one of the problems of peer review is that it is fine for looking at paper, but if you try to use peer review in court, it is extr
emely expensive because someone actually has to go and watch an advocate or watch someone at a police station. As you know, sometimes hours can pass and an advocate might have very little to do. So looking at quality, which is very, very important to us as judges, we have tried to look at a system where people provide evidence of their competency, because that, as a system for quality review, is probably very much better as a means of ensuring, particularly if you go for competitive tendering, that you get people of sufficient quality to do the cases that come before the courts. Quality is one of our real concerns.
Q137 Keith Vaz: Do you think there is a role for the judiciary in picking up on advocates, solicitors, who do not meet the quality mark? Do you think that the judges themselves should report them to their regulatory bodies?
Lord Justice Thomas: As you can see from my report, I have chaired a committee which looked at a new framework for quality and we are very happy to say that we have reached a framework we can put to the profession. The essence of this system is that the quality will rest in the hands of the profession and the new professional standards board who will delegate to firms and to sets of chambers the monitoring of quality: for a particular level of case you have to demonstrate that you are of sufficient quality to do it. One of the suggestions made is that evidence will be required by those who assess the quality and of that evidence, people will be able to put forward, as they do for example for silk, statements from judges as to the quality. We are looking at it more from a point of view of trying to make certain that the standards of quality that you get - and the CPS has a system that is not dissimilar - will produce quality rather than judges being placed in an invidious job, which is not really their own, of policing this. Carter took the view, with which we agree, that it really is the profession's job to monitor quality. However, we wish to help them and help them in setting up the scheme and we should have a continuing involvement in the overall operation of the scheme and also in providing an evidence base for the operation of the scheme. Obviously if some advocate behaves grossly improperly, it has always been the case that the judges have reported them to the relevant standards board.
Sir Anthony Clarke: That was really what I was going to say. It is not really practical to require judges to have a tick-the-box thing for every advocate who comes before him, to say four out of ten for cross-examination, one out of ten for examination-in-chief. However, the judges have always had the role that John just referred to, namely that if you have an advocate, or a solicitor for that matter, who has behaved in some way which the judge thinks merits reporting to the regulatory authority, whether the Bar or a solicitor or indeed an expert, then the judge has always been able to do that.
Q138 Keith Vaz: I am sure you have seen the lecture given by Lord Justice Wall in Cardiff where he says that from the President of the Family Division downwards, the response has been clear, well informed, powerful and unanimous. There is unanimity amongst the profession and the judiciary that the implementation of Lord Carter's proposals would have a devastating effect on the practice of family law. That is pretty strong stuff from a senior judge. I assume you agree with him.
Sir Mark Potter: I agree with almost everything he said, but there is one respect in which I should like to make my position clear and, if I may, by way of a correction to a question put by Julie Morgan, make this point clear. So far as Carter's report is concerned, if it is carefully read, I as part of the judicial input into it, have very little quarrel with it, but the real point is that the proposals in Legal Aid: a sustainable future are a betrayal of Carter, they are not consistent with Carter. Carter, who is a highly respected chair in the Family Proceedings Court at Wells Street, knows a good deal about family law proceedings; I have no doubt over the breakfast table, if not as a result of former evidence. He was quite clear when speaking to us and he makes clear in his report that he was approving a system of graduated fees because of his recognition that, particularly in public law proceedings, there is a large number of tasks, there is a large number of imponderables, there may be a large number of hearings rather than a small number of hearings and, in particular in the case of children's solicitors, if they are acting properly, they will be required to do a great deal of work which does not appear in the protocol. The courts are peculiarly dependent upon these expert children's solicitors for case management. The judge can say what is going to happen, but when he says there must be experts' reports, what he does is to rely on children's solicitors to get in touch with the experts to draft the joint letter and keep things moving, to keep the local authority up to the mark, to spend often many hours of time in managing and moving the case forward. It is these solicitors, these specialist solicitors, who are the people who are going to fall out as a result of the proposals in Legal Aid: a sustainable future, which does not provide for what are technically known as graduated fees. Graduated fees are fees which have a basic fee but allow you to move up, whether by an hourly scale or by some other increment, according to the extra work that you have to do. It is a series of extremely crudely averaged fixed fees which says that for step one in the protocol, whether you act for father, mother or child, you will get X pounds and so on. The whole thing has to be radically revised.
Q139 Keith Vaz: Let me get this right. The original proposals were okay as far as you are concerned, the principles are okay. It is implementation that is going to have the devastating effect on family law. Is that right?
Sir Mark Potter: Yes; it is.
Q140 Keith Vaz: If we pause there for a moment, you are three of the most senior judges, have you told the Lord Chancellor of your concerns?
Sir Mark Potter: Yes.
Q141 Keith Vaz: Collectively? Individually? Have you told him that this is what is going to happen if these proposals are brought in?
Sir Mark Potter: I have officially endorsed the principles, because I am the chairman and presented the findings of the Family Justice Council which were pretty strong in general terms on the effect on the family justice system. It was covered by a letter, which may or may not be on the website but certainly was not confidential, in which I set out again a number of my own personal observations in relation to it. I may say that they are pretty well summarised in the opening statement, which I regard as far too long to be read.
Q142 Keith Vaz: Do you feel a degree of betrayal here? There you were, appointed as the President of the Family Division, you came before this Committee, you talked about the vision of what you wanted to set forward as far as family law was concerned and what has happened?
Sir Mark Potter: May I first of all be absolutely careful about the word "betrayal"? I simply mean that Legal Aid: a sustainable future is inconsistent with and almost as though Carter had not been read. I have little doubt as to what the reason was. Legal Aid: a sustainable future came out at precisely the same time as the Carter report, but the numbers in it and the structure and form of it must have been the product of months and months of work already underway at the Legal Services Commission. Quite plainly their work came out, it was made to look as though it was a marriage with Carter, but it was not a marriage at all.
Q143 Keith Vaz: What you are telling us is that it was all a bit of a mess.
Sir Mark Potter: Certainly.
Q144 Keith Vaz: Instead of a clear and coherent and consistent policy which can be signed up to by the professions and by the judiciary, what is b
eing proposed is totally unacceptable. Sir Anthony, have you, as Master of the Rolls, expressed your concerns personally to the Lord Chancellor, who of course has the final say on these proposals?
Sir Anthony Clarke: I have not personally expressed the concerns in relation to family because they are essentially a matter for Mark.
Q145 Keith Vaz: No; generally.
Sir Anthony Clarke: So far I have written to the Lord Chancellor in relation to civil, but in a much more moderate way really, because I think the problem is rather different with civil. The problems are really more along the lines I indicated earlier and the judiciary has not, so far at least, entered into the nitty-gritty of the fee structures and the precise fees and so on. It has regarded that as essentially a matter for the profession and I feel sure the two parts of the legal profession are paddling their own canoe in relation to that.
Q146 Keith Vaz: Have you had a response? You have voiced concerns, but have you had a response?
Sir Anthony Clarke: Yes. I wrote to the Lord Chancellor in November last year urging caution in relation to the implementation of the Carter proposal in relation to civil, much along the lines that I indicated earlier and that in fact did bear some fruit.
Q147 Keith Vaz: And what was his reply?
Sir Anthony Clarke: That did in fact bear some fruit because originally it was proposed that almost all the Carter proposals would be implemented in April, but in fact, while some of the contracts are going to be implemented in April as I understand it, the fee structure is postponed at least until October.
Q148 Keith Vaz: Is that a reasonable timeframe? You were talking about a delay. Should it be delayed beyond that?
Sir Anthony Clarke: To my mind, it should be delayed beyond that, partly for the reason that I indicated earlier, recognising that the criminal changes are going to be implemented at some time like that, though precisely when I am not quite sure, in order to make sure that we go forward in a measured way, having regard to the impact that will have had on the profession. I would not like to leave you with the idea that it is all conflict, because actually there has been a great deal of a discussion on the civil side anyway between the Civil Justice Council, which is a statutory body and I see that you have one of their papers ---
Q149 Keith Vaz: Do you think that there ought to be a delay? Do you agree with the Master of the Rolls?
Sir Mark Potter: Could I first of all add that I have every reason to think that most of the detailed criticisms I have made have been taken on board and the Lord Chancellor has essentially required the Department and the Legal Services Commission to take a radical re-look at the matter to see how, within the overall envelope which will remain constant, the money should be distributed. Of course what emerges remains to be seen and whether it will satisfy the profession in terms of numbers remains to be seen and that is not a matter for me. Before dealing with your question may I also sound one other word of warning? The cost drivers which I have identified in my opening statement remain. They are amenable to some alleviation in individual cases by better case management and I have put in train a number of judicial initiatives designed to achieve that. What there appears to be no realistic recognition of or allowance for is the fact that public law care work, which is, at it were, the equivalent of the very high cost criminal cases on the legal side, is increasing exponentially. In Birmingham this year it has been as high as 20%. In local pockets in Lancashire it has been even higher and nationally, although no statistics are readily available, the fear is that the increase is between 5% and 10%.
Q150 Chairman: Is this a consequence of more children being taken into care or more contesting of children being taken into care?
Sir Mark Potter: I have given you the figures for commencement of care proceedings, so it is more care proceedings being started and this is basically because of the increase in the influence of alcohol and drugs and inadequate parenting and, in some areas, particularly in Birmingham, increased budgets being arranged for the local authorities who are getting round to cases that they might otherwise not have got round to. It has to be observed that there is a problem among an increasing number of immigrant communities where all kinds of problems present themselves against a different cultural background and require resolution in a way which is testing local authorities to the full. Certainly so far as costs of proceedings are concerned, one can give a simple statistic that if an interpreter is required in a public or care hearing you can do anything between a third and double the length, but it goes back much more subtly and broadly right across the system. Coming to the question of delay, as I understand it ---
Q151 Keith Vaz: Sir Anthony wanted to delay it beyond October, what sort of timescale do you have?
Sir Mark Potter: I would like to see it delayed to April of 2008, but the only reason I would wish to see delay is the general hope that solicitors will be able to absorb the matters, adjust and carry on in business. I have no doubt that if they have been put to the sword and if they are put to the sword of April 2007, of the sort of requirements that are there in Legal Aid: a sustainable future, a lot of them will just say "No longer".
Q152 Keith Vaz: Could you comment on the proposal to abolish the 15% uplift for Law Society Children Panels?
Sir Mark Potter: That is absolutely regrettable. One of the ways in which quality has been maintained is by the provision of that uplift for these expert solicitors and, as Professor Masson said, it is by their expertise that matters are dealt with in a more conciliatory fashion and earlier settlements are reached. I would add that the position is that the family justice system depends upon a broad sweep of solicitors, and counsel too for that matter, but mainly solicitors, who as a matter of idealism and habit are in this business. They are not in it for any substantial rewards of the kind that one sees in other fields. If these people leave, their replacements are not there among the young, who would see better rewards elsewhere.
Q153 Keith Vaz: Lord Justice Thomas, what do you perceive to be the main cost drivers in the criminal legal aid spending in the Crown Court?
Lord Justice Thomas: I set them out in the statement at paragraph five.
Q154 Keith Vaz: Could you paraphrase it?
Lord Justice Thomas: Legislative complexity and too much legislation. That is something for you to do something about, it is not something I can do anything about. The second thing is the fact that our procedure there have become too complicated and too slow and we are as judges and working closely with those other people interested in the system, trying to do something about it under the acronym of CJSSS. The pilots that we have run so far have been very successful and we hope that in the Magistrates' Courts, where it has been most marked, we can do something about it. There is also still quite a lot to do to make certain people understand and comply strictly with the criminal procedural rules that have been introduced and also with orders made by the court; there is still a lack of compliance there on all sides. Those are the three main points I put forward.
Q155 Keith Vaz: Do you believe that the recommendations in the Carter report will deal with these cost drivers?
Lord Justice Thomas: Yes. What one has to be very careful about is that you set a fee structure that actually does concentrate people's minds on earlier proper preparation and efficient advocacy in trial and does not provide perverse incentives. One of the things that is good about the Carter report is that on the bread-and-butter work you get a standard fee and therefore that encourages people
to get on with it and get on with it early. All I hope is that in the Crown Court, where you will get a proportion of the fee if the case pleads at an earlier stage, they have the timing of that right. What we want to see is people properly advised early on and pleading guilty at an earlier stage, if they are guilty. That saves everyone money. We gave a lot of thought to this issue when the proposals were going through and did discuss with Lord Carter and the one area we are concerned about is whether they have got right this last bit about where you set the proportion of the fee for a guilty plea. Time alone will tell and therefore the sooner this is implemented and we find out the better.
Q156 Keith Vaz: So you are of the view that it should be implemented as soon as possible, but your colleagues are not.
Lord Justice Thomas: I am not trying to set up a difference between us.
Q157 Keith Vaz: Well there is, is there not?
Lord Justice Thomas: No, there is no difference. You have to look at this as three separate ---
Q158 Keith Vaz: The Master has just said he wants a delay and the President has said the same thing.
Sir Anthony Clarke: I did not say that there ought to be a delay in relation to the implementation of the criminal reforms at all. My point is that the civil reforms should be delayed, partly in order to monitor what happens after the introduction of the criminal reforms.
Q159 Keith Vaz: So the Chairman was right: crime first.
Sir Anthony Clarke: Yes; crime first.
Lord Justice Thomas: You have to look on these as three separate programmes and that is why we have done it this way. Our views are slightly different in relation to what we have to say and a lot more time has been devoted to crime, it is much more thoroughly understood and therefore it is much readier for implementation.
Sir Anthony Clarke: That is where the black hole has been.
Sir Mark Potter: In respect of family proceedings, the whole nature of the proceedings and the problems thrown up and the difficulties and the cost drivers are different from crime. The considerations in relation to the solicitors in practice are different. It is a very different form of practice. Finally it is the fact that crime has caused most concern, has received most concentration and was Carter's principal concern. One has a regrettable feeling that, because it took so much time, family was rather hurried along - I do not suggest as a PS at the end - was dealt with in much less detail and with much less attention to that detail than on the criminal side. We do need time to consider the implications, longer than they have had in crime for some time.
Q160 Bob Neill: I imagine a number of the drivers which you identified in your paper, the increased costs in Crown Court work in particular, are not wholly in the control of defence solicitors or barristers in the Crown Court. Does Lord Carter take that sufficiently on board?
Lord Justice Thomas: I think so. The problem is that when you are looking at how you look at an entire system, you have to start somewhere. What we have tried to do, in conjunction with bringing in these reforms - if the Government bring them in, and it is their decision - is actually to look at the way the system operates. Over the past year and a half, two years or so, we have tried to look at how you make the system more efficient, that you deal with disclosure in such a way that actually it is done properly, that statements are given on time, that you look at the way in which cases are listed and brought to trial. All of these can contribute to costs if not done efficiently and one has a degree of sympathy for defence lawyers who say they are being tackled first, but, to be fair, we are trying to do other things as well at the same time to make the whole system work more efficiently because there are undoubtedly inefficiencies in it.
Q161 Bob Neill: Equally, I imagine, experience will indicate that there is always going to be the awkward client who, despite however robustly he is advised at the beginning, does not change his plea until the knows the prosecution witnesses have turned up or the penny has finally dropped that they are never going to be able to deal with that.
Lord Justice Thomas: You always get people who will take that view and the system has to cater for it.
Q162 Bob Neill: That is understood. Lord Carter seems to be quite critical of the adversarial system itself. He seems to be suggesting that a downside of the adversarial system is that no-one has an overall stake in effective cost control. Is that fair, do you think?
Lord Justice Thomas: No and I do not think he goes that far either. Everyone does have an interest in overall cost control. One of the problems that you have where things are charged on a taxi meter rate, on an hourly rate, is that there is a lack of control and also, if you pay people piece work, something for this, something for that, something for something else, there is an incentive to do every little bit of work rather than with an overall fee; so there is that incentive. The judiciary have a very real interest in making the system work efficiently, as do the other agencies involved. People are now looking much more closely at costs than they may have done in the past.
Q163 Bob Neill: Your memorandum quite interestingly refers to the disclosure regime and the work on protocols is dealt with, in which you have been very much involved. You refer to that as addressing the abuses of the way the current legislative regime is operating. Is an element of abuse a significant problem?
Lord Justice Thomas: Yes.
Q164 Bob Neill: Tell us a bit more about that.
Lord Justice Thomas: In two areas. If you take Magistrates' Courts, take the simple cases, people ask for documents and get given documents when they should not really be asking for them and they should be being given them. So there is a problem in small cases that the regime is not properly understood. For example, in a simple case people will ask for the police reports or the emergency calls, and probably there is no reason under legislation for them to be provided. Then you go to the more complicated cases and one of the problems there, although that is now much more under control, is that there was a tendency to say "Here is the warehouse key, go and look at it all" without actually going through it yourself. You were watching what was happening as though the defence were being given an opportunity to look at whole hosts of documents which they should not have been given and huge cost was thereby incurred. These issues are now identified and are being addressed. It could take some time to change the culture but it is in the process of being changed.
Q165 Bob Neill: And does a movement away from payment by page help to stop that?
Lord Justice Thomas: Yes. It is never efficient to pay by time or by pages or anything. Paying by time encourages inefficiency.
Q166 Bob Neill: I understand that. No doubt the police serve the unused material with a notice of additional evidence so it will come into the count.
Lord Justice Thomas: Yes. One wants a much more sensible approach where you do not pay people by pages, you do not pay people by the hour.
Q167 Bob Neill: I understand that. May I just come on to the question of the very high cost cases? I know a lot of work has been done to develop specific protocols for managing heavy cases, if I may put it that way. Do you think there that there is any noticeable effect on the way you are trying to bear down on costs, or is it too early?
Lord Justice Thomas: There are promising signs. There is a real problem in changing the culture. People are not used in criminal cases to having timetables. In one of the current terrorist trials, Mr Justice Fulford has, for example, put forward a proper timetable, but this is unusual. There is discussion about whether you should try to estimate much more accurately how
long you take to have each witness and there is no reason why that should be done. I always think procedures which concentrate the mind on a couple of minutes to do something do actually help. There is a much better appreciation in all the relevant offices, the SFO, the Revenue and Customs Prosecution Office and the CPS, that big cases require competent and specialised people to prepare them, get them right. If you get the prosecution right, it is so much easier to get the defence right.
Q168 Bob Neill: That is very helpful. The other part of Carter's approach to the VHCCs is a cap on those which go over 40 days. Do you see any risks to that, for example in fairness and so on?
Lord Justice Thomas: I do not think there is a cap. There is a terrible risk, a very real problem of how you deal with what are bespoke cases. The idea is that the Legal Services Commission, under a much more strengthened contract mechanism, will try to monitor cases much more carefully. I hope that the proposals Lord Justice Hughes has put forward in the working party he chaired, trying to tie timetabling both to preparation to trial and to trial, will enable there to be a much more careful monitoring of the amount of preparation needed to the case, but that system will come into effect some time during the course of the current year. We are all trying to concentrate on making certain that you do not pay by the hour; you look at what is actually involved and say this is the amount of money you really need to do it and pay on that basis.
Q169 Bob Neill: Do you think we can avoid a situation where some considerable work may be required to be done but you hit the argument that you have reached the cap?
Lord Justice Thomas: I should be very surprised if we ever got to that position.
Q170 Bob Neill: A lot of the Carter concept is obviously based, quite sensibly, on encouraging and incentivising early resolution in criminal as much as in civil.
Lord Justice Thomas: Yes.
Q171 Bob Neill: I can see benefits to that obviously and it is desirable in itself, the early plea and so on which we talked about. Are there risks? If so, how do you guard against them, the risk of inappropriate advice or the slipshod preparation?
Lord Justice Thomas: There is much less risk of slipshod preparation. As to inappropriate advice, that really is a professional conduct matter. I would be very, very surprised if one would have an extensive or any problem of pressurising people to plead to get the fee. One must always be on one's watch for that happening, and I do think the quality control systems, which we absolutely must have, would identify any such practices. It would be foolish of me to say that sort of thing can never happen, because every profession has rogue elements. We have to guard against that and just watch for it eternally.
Q172 Dr Whitehead: I should like to ask a question concerning the uplift for Crown Court litigators' graduated fees and the extent to which the proxy for that has been taken as pages of prosecution evidence and prosecution witnesses. You touched on the argument in terms of the protocols for unused evidence, the argument which has arisen that actually the criteria might also include pages of unused evidence. Do you think that those points taken together might form a satisfactory proxy or are there other proxies which you think might better measure uplift?
Lord Justice Thomas: It is very difficult to tell. This has never been done. There is undoubtedly a need to devise a system where you pay the litigator by something other than time spent because that is not a true way of achieving an efficient system. I would be reluctant to go to pages of unused material because that would incentivise people to ask for more and more unused material. What one has to do is wait to see - and Carter does propose that we review the system - whether this is the right proxy. Maybe then you would say you have to look at the length; sometimes that is governed by pages, sometimes it is not. The length of the case and the amount of paper are probably in criminal cases as good an indicator of any, apart from the very long cases which are of course not within the fixed fee regime. As I said in relation to whether Carter has got right the time at which you set the discount for guilty plea, having got that right you need also to look at this very carefully. I think that there is pretty good evidence that the proxies work quite well in the Bar's graduated fee system; we shall just have to wait to see whether the solicitors' one does. I have no doubt at all that we have to have a system of fixed fees. We simply cannot pay people by the hour.
Q173 David Howarth: May I just ask about this question of Carter's recommendations about what happens in police stations and the relaxation of the duty solicitor scheme and the possibility of using less qualified people? Do you see the risks in that? Could it have knock-on effects for trials where perhaps the exclusion of a confession might be an issue?
Lord Justice Thomas: It is very important that one approaches this in a balanced manner. There are many cases where there is very little for the representative to do, but as Professor Cape said, there are of courses cases where it is critical you have someone who is competent. I also agree with what he said about peer review and that is why peer review for advocacy does not work and you cannot have peer review for a police station for a similar reason. You cannot put another solicitor there to watch someone because it is too expensive. I am afraid I have not turned my mind to how you devise a quality control method for what happens at a police station and I would be very reluctant to give an off-the-cuff answer. Certainly you have to have a system which monitors quality control. If you are to have a system of price competition, as we all know in our daily lives where we buy something on price, you must have regard to quality.
Chairman: Thank you very much Lord Justice Thomas, Sir Anthony, Sir Mark, it has been very interesting, very useful and we shall follow with interest the notion of civil waiting for crime. Thank you very much.