All solicitors engaged in criminal litigation have a positive interest in the principle set out in paragraph 11 of the consultation document that early, efficient and effective case preparation is incentivised and rewarded. The different institutional arrangements for prosecution lawyers and defence lawyers make it extremely difficult to devise arrangements that are even handed and applicable to individual lawyers, firms or Crown Prosecution Service Offices and, in so far as the second basis for the revised fee structure is to penalise poor performance, our view is that penalties are highly likely to be seen as discriminatory and unfair by defence lawyers and unlikely to impact on the prosecuting institutions. Lord Falconer has made the point that incentives are more likely to change behaviour than sanctions and we set out below in detail our views regarding adverse observations and the relationship between fee structure and behaviour. The extremely limited time for consultation has meant that we have not had any adequate opportunity of comparing the proposed fee structure to existing cases on a large scale in order to measure the impact.
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