Lynne Featherstone MP
House of Commons
Dear Ms Featherstone,
Re: Criminal Legal Aid and the Government consultation on Price Competitive Tendering
I write to you regarding the above as a constituent of yours and as a criminal solicitor. In fact, I previously wrote to you in September 2011 about another threat the criminal justice system then faced, namely the proposals to introduce means testing for free legal advice in police stations under Legal Aid. You did eventually reply to that letter, albeit after a long delay. Fortunately, that particular threat was in the meantime averted.
However the criminal justice system now faces a far graver threat, the planned introduction of price competitive tendering (PCT) as the means of remunerating the legal profession for conducting publicly funded defence work under Legal Aid in criminal investigations and proceedings. On this occasion I would hope to receive a far swifter reply from you, not least because the Ministry of Justice?s ridiculously short consultation period of 8 weeks which ends on 4th June 2013 simply will not allow for such a delayed response.
I shall apologise now for the length of this letter, there are so many important points which need to be made. Allow me to begin by briefly outlining my professional background. My reasons for doing so will shortly become clear. I qualified as a solicitor 20 years ago. Throughout my career I have been involved in criminal defence work and for six years from 1999 to 2005 I was a partner in my own specialist criminal defence practice, Saunsbury & Co, based in Walthamstow, East London, which in its day had an excellent reputation. One of the key factors in my decision to leave the partnership was that I could see then criminal lawyers were going to have an increasing burden of administration and regulation imposed upon them by the Government and the Legal Services Commission for ever diminishing levels of remuneration under Legal Aid.
By the time I left partnership in 2005 I had begun doing a gradually increasing amount of firearms law work and I decided to focus on developing this. Since 2007 I have been a consultant at Lewis Nedas Law in Camden and established their firearms law department. In 2009 I was appointed as the Honorary Solicitor to the Clay Pigeon Shooting Association, the national governing body in England for the sport of clay target shooting. I now work exclusively in the field of firearms law, conducting a mixture of firearms licensing appeals and representing those who are accused of criminal offences relating to their firearms. The vast majority of my clients pay privately for their representation and advice. I have become increasingly selective about what cases I take on under Legal Aid due to the diminishing returns and I have reached the stage now where I derive less than ten percent of my income from Legal Aid work.
Forgive the brief career synopsis but I believe it is important you understand the perspective from which I write so that you appreciate this letter is in no way motivated by self interest. So why am I writing to you if the proposed changes to criminal Legal Aid are going to have little effect on my work? Because I am deeply concerned about the implications for the future of the criminal justice system, and how its impending disintegration will impact upon society as a whole.
I have for some years been predicting that the steady demise of the Legal Aid system is going to return British society to the dark days of the grave miscarriages of justice we saw in such cases as the Guildford Four and the Birmingham Six. While I take absolutely no satisfaction in it, the publication of the PCT consultation makes me all the more confident of my predictions coming to fruition. Aside from the massive further reduction in levels of remuneration which have already been cut to the core in recent years, there are a number of fundamental flaws with the PCT proposals.
Firstly, it is absolutely inevitable that PCT will result in a massive reduction in the quality of service and representation provided under Legal Aid. Therefore, rather than boosting public confidence in criminal lawyers and the criminal justice system, as asserted by the Minister for Justice in his foreword to the consultation paper, PCT will in fact erode public confidence. Nor is there any prospect of PCT "delivering a more credible and efficient system? of Legal Aid, as claimed by the subtitle to the consultation paper. Why do I say this? The stated objectives of PCT are to cut rates of remuneration by at least 17.5% as compared with current levels and to reduce the number of solicitors firms awarded Legal Aid contracts from the current level of around 1600 firms nationally to some 400 firms.
The reality is that given the vastly reduced number of contracts to be awarded, those firms which make successful bids will be the firms which offered significantly greater reductions than 17.5% on current levels of remuneration. Profit margins are already incredibly narrow in criminal legal aid work after successive cuts in Legal Aid fees over recent years. Such substantial further cuts in fees cannot possibly be achieved without a vast reduction in the quality of service and representation provided by those firms which are awarded the few contracts. The recent debacle over the contract for interpreter services in criminal courts, with many complaints about incompetent interpreters, or interpreters not turning up to court at all, and so leading to ineffective hearings, and therefore false economies, is a clear demonstration of what happens when you award the contract to the lowest bidder.
I shall ignore for the moment what happens to the "fortunate? firms which are awarded contracts, or their clients, when many of those firms collapse as reality dawns that it is simply not economically viable for the firms to do the work at the price bid under the contract. What about the 75% of firms which currently have Legal Aid contracts and are going to lose them? This is bound to lead to firms in your constituency closing and/or solicitors and their staff who live in the constituency losing their jobs.
Given the cuts in Legal Aid funding for other areas of work combined with other changes in the legal market such as in personal injury and conveyancing, it is wholly unrealistic to presume that those lawyers and their staff currently involved in criminal litigation will simply be able to move into other areas of legal work. The stark truth is that most of them will be pushing up the unemployment figures in your consistency and so adding to the burden on the public purse in other ways. I wonder if the Ministry of Justice has costed that into its calculations of the savings to be achieved by the introduction of PCT?
Another fundamental flaw of PCT is the removal of the right of the accused to choose their solicitor. Instead, clients and their cases will be allocated to one of the local firms awarded a contract on a strict rotational basis. Not only is it wrong in principle to deny individuals the choice of who they wish to be represented by, but given the objective of PCT is to save money, I simply cannot understand the logic of this proposal.
With regular offenders, efficiencies are achieved on a massive scale by many choosing to use the same local solicitor on each occasion they get arrested. Their own solicitor knows their history, has immediate access to probation, medical and other reports gathered in other recent cases and therefore can give realistic advice and ensure cases are progressed efficiently in court, on occasion arranging for two or more pending cases to be linked and dealt with together in court. This not only reduces the amount paid out to defence solicitors under Legal Aid but also cuts expenditure in other areas of the criminal justice system such as the Court Service and the Crown Prosecution S
ervice. Aside from the benefits to the accused and wider society of securing swift and appropriate disposal in such cases, much of the associated costs efficiencies will be lost if repeat offenders are to be allocated a different solicitor on each occasion.
Another recent initiative which was designed to produce costs savings in the criminal justice system is the Early Guilty Plea Scheme in the Crown Courts, the aim being to substantially reduce the number of cases in the Crown Court where late guilty pleas are entered and to ensure that in far more cases where there are guilty pleas, those pleas are entered at a much earlier stage of the proceedings. I attended a seminar organised by the Old Bailey recently regarding the implementation of this scheme. According to members of the judiciary and senior figures from the CPS who spoke, considerable political will has been invested into ensuring that a success is made of the scheme now it is being rolled out nationally.
It does not appear to have been considered that PCT and the Early Guilty Plea scheme (EGP) are effectively incompatible. Firstly, solicitors and barristers who know their client are far more likely to be able to give informed and realistic advice. Furthermore, Defendants are far more likely to be persuaded to plead guilty if they have an established relationship with that solicitor and/or barrister which leads them to trust and have confidence in that advice. Whatever budgetary savings it was hoped might have been achieved by EGP are likely to be all but wiped out by PCT.
In my view, the removal of the right to choose a solicitor is also totally incompatible with the Legal Aid contribution scheme, requiring those Defendants who can afford it to contribute from their income or savings towards the costs of their defence under Legal Aid. As I understand it, there is a proposal to remove the entitlement to Legal Aid in the Crown Court for those on higher incomes but otherwise the current system of calculating Legal Aid contributions is to remain unchanged for those on middle incomes. So, defendants in middle income brackets will still be required to pay Legal Aid contributions at the same level as before, but for a much poorer quality of service and with no option any longer to choose the provider of that service. I fail to see how that represents better value for money for the taxpayer. Indeed, how can the Government reasonably expect individuals to contribute to their defence legal costs at all, if an unknown and overstretched solicitor is going to be foisted upon them, possibly whose office is significantly further away, rather than the local solicitor they have used before and come to trust?
When does the Government intend to introduce the same policies in the NHS, i.e. to make the patients contribute towards the cost of their treatment each time they need to see a doctor? And to then tell them they are not even allowed to chose their doctor but must see a different GP every time, one who knows nothing about their previous history, doesn?t have their notes to hand, and therefore is not best placed to advise on the best course of treatment or to persuade the reluctant or nervous patient to accept an unpalatable treatment plan as there is no prior relationship of trust between the patient and the doctor?
The right to a fair trial is a fundamental safeguard in a civilised society to protect the individual against abuses of power by the state, police and other law enforcement agencies, and against being falsely accused by others. There is sound justification in the requirement that the Crown must prove beyond a reasonable doubt every case it brings against any individual. This principle cannot possibly be upheld or maintained if only those who can afford to pay their legal costs are able to gain access to proper and professional representation in their defence.
I suppose you could say my decision to become a criminal solicitor was heavily influenced by my liberal principles. I believed I could usefully contribute to society by helping to uphold these fundamental principles of our criminal justice system, the rights to a fair trial and to be treated as innocent until proven guilty. These rights should be available to all, regardless of how rich or poor they are, and no matter how heinous the crime of which they are accused.
I voted for you in the last election because I believed you and the Liberal Democrats broadly shared the liberal principles to which I adhere. However, the right to a fair trial seems to hold little currency with the present Government in the current economic climate where virtually the only thing that seems to be of importance is immediate costs savings. I have read and heard very little in the media to suggest any dissent from the Liberal Democrats with the latest plans of the Conservative Party to decimate the criminal justice system.
I have always prided myself on representing my clients to the best of my ability and carrying out my professional duty as a solicitor to act in the best interests of my client. While I cannot speak for the firm as a whole, under the current proposals for PCT, I envisage that I as an individual solicitor will decline to take on any more cases under Legal Aid. Under the fixed fee schemes known as the Litigator Graduated Fee Scheme and Advocate Graduated Fee Scheme, which were introduced several years ago, criminal defence lawyers are already under considerable economic pressure to take a broad brush approach and do little more than the bare minimum in preparing their client?s defence, since the time they invest in doing so is not one of the factors built into the formula for calculating the fixed fee they are paid for the case.
However, PCT goes much further than the current fixed fee schemes. The proposals include paying the defence lawyers precisely the same fee for short trials as cases dealt with by guilty pleas, apparently on the erroneous basis that the only or main reason defence lawyers ever advise their clients to plead not guilty is to line their own pockets, not because the accused might actually be innocent or the prosecution case might be flawed or misconceived. I am not prepared to have my professionalism so utterly compromised by the direct and irreconcilable conflict which PCT will create between the best interests of my client and my own financial interests. I will be telling potential clients this when I explain to them that regretfully I am only prepared to take their case on if they are in a position to pay privately for my services.
I might add it is an outrage to the principles of justice and a free society that this Coalition Government, with the acquiescence of the Liberal Democrats, saw fit to introduce measures which came into force in October 2012, removing the right for an acquitted defendant to be reimbursed his privately paid defence legal costs from Central Funds, should he have decided the only sensible course was to pay defence lawyers to do the job properly and thus be sure of establishing his innocence. This was a thinly veiled attempt to drive down the quality of defence representation by coercing all but a very few privileged defendants into opting for publicly funded representation under Legal Aid, and so bring it down to the same poor level of case preparation and presentation increasingly displayed by the struggling Crown Prosecution Service, thereby producing a level playing field between Prosecution and Defence lawyers. A cynic might think the ultimate objective of deskilling criminal defence work is to increase conviction rates by the back door and so bolster the Government?s political popularity.
This is not just about what the Government is trying to do to the careers of myself and my colleagues, or to the legal profession in the longer term. There will be casualties in the profession, of that there is no doubt, with individual lawyers and whole firms opting or being quite literally forced out of publicly funded criminal defence work. Criminal lawyers are already starting to leave or at least consider leaving the profes
sion in significant numbers. As they begin to leave in their droves or retire it is unrealistic to expect them to be replaced. Soon no lawyer with a modicum of ability, common sense or self-respect, or the need to earn a modest living, is going to contemplate going into criminal law. For my own part, I cannot in all conscience recommend to anyone now entering the legal profession that they consider going into criminal work, and indeed I have not felt able to do so for some time.
However, as I said at the outset this letter is certainly not driven by self-interest, nor merely concern for my colleagues. The Government must understand that its PCT proposals will have an impact which reaches far beyond the legal profession and is going to have grave consequences for wider society as a whole. I have been at the coal face of the criminal justice system for long enough to know that not everyone who is being dragged through the criminal justice deserves to be there, not by a long shot. It is far from uncommon for false allegations to be made by those with their own motives, or for the Police to misinterpret the many difficult situations they are called upon to deal with. The criminal justice system is already creaking under the strain of successive cuts not only to Legal Aid funding but also the CPS, the Court Service and the Police. PCT will quite literally bring the criminal justice system to its knees.
As the Police begin to realise that virtually nobody is being defended properly any more, the danger is that there will be an increasing temptation, at least amongst some officers, to abuse their powers and resume the sort of police practices that were considered acceptable prior to the implementation of the Police and Criminal Evidence Act 1984 and all the safeguards that it enshrined. Those who can longer get access to justice, or who feel there is no justice, will increasingly lose their respect for the law and start to take the law into their own hands. The great British criminal justice system, which for centuries has been held up as the model to the rest of the world, will become a poor shadow of its former self.
I should add that although this letter comes from me as an individual solicitor, I know it has the full support of another of your constituents. My husband, Nick Doherty, is a criminal barrister who was called to the Bar 30 years ago. Like me, he has managed to diversify away from mainstream criminal defence work by developing a specialist practice in firearms licensing law. Together we authored the British Firearms Law Handbook, published by Sweet & Maxwell in December 2011. Nick is therefore likewise in a more fortunate position than most of his colleagues. I know from our many discussions on the state of the criminal justice system and its bleak future that morale at the criminal Bar is at an all time low. I believe that Nick intends to write to you in the near future with his own perspective as a criminal barrister. In the meantime, he has asked me to confirm that he agrees entirely with all of the observations I have made in this letter.
We urge you to consider very carefully the Government?s proposals for PCT and to speak out against them rather than supporting them. Please confirm that you will raise a question about these issues with the Lord Chancellor at the next Justice Question Time in the House of Commons.
Nick and I would welcome the opportunity of an urgent meeting to discuss further with you on a face to face basis our concerns for the future of criminal Legal Aid and the criminal justice system.
I look forward to hearing from you very shortly.
Consultant Solicitor at Lewis Nedas Law, London
And also on behalf of
Barrister, 4 Kings Bench Walk, London