Tuesday Truth – Whose Mess is it Anyway?

PUBLISHED February 28, 2017

Whose mess is it anyway?
In the wake of the decision to withdraw the ill-fated duty solicitor contracts, the LAA developed a policy of heavy touch monitoring of contract holders conducting criminals defence work. Some firms were subjected to no less than 9 separate audits over a short period of 6 months.
The zeal with which they were auditing firms led to a Freedom of Information request lodged by JRS Consulting, this request provided confirmation that the LAA’s new model Army are indeed on performance related pay

Performance Related Pay?

A newly assigned contract manager sent out by the LAA last year on a  “review “ visit , asked the provider whether they were doing more private crime work , when the provider answered in the affirmative , the response was “ good that’s what we like to hear “ .
Perhaps it takes a moment to absorb, but the subtext of what this employee of the LAA is essentially saying, is “While it is our duty under LASPO to ensure that representation is provided to those who are eligible, we are pleased to hear that a growing number are not accessing publicly funded legal advice and representation.”
Many defendants and suspects accused by the state have no choice but to fund their defence privately, because;

  1.  Their means are not low enough to qualify for legal aid in the Magistrates’ court ;
  2.  They cannot meet the high level of contribution required for representation in the Crown Court
  3. hey don’t feel their interests would be best served by the firm  who were allocated to them when they were scared and confused in the police station before they were bailed to return

Individuals facing allegations are given no choice but to pay for private legal representation to clear their name knowing that they will only recoup a small proportion in the event that their defence is successful. They are forced into this position by the LAA’s own stringent rules and it would seem that the LAA feel their job is done when the take up of this service is reduced. Imagine the outcry were an NHS manager to demonstrate a similar level low take up of local health provision. It’s analogous to a provider in the health service saying, we are seeing more patients opt for private services because the queues are too long. It amounts to failure.
There is a crisis of confidence in the justice system as a result. Relentless cuts have led to a decline in the quality of the service we are allowed to provide on Legal Aid. Most of us want to provide excellence not the merely adequate which the LAA stated that they expected as part of their failed attempts to consolidate.
Now we are currently being offered a choice .Take a cut or take a cut. Do more for less or do more for less.
Choice 1.
S38 Orders to be reduced to legal aid rates
How did we get here?

  • Means testing procedure that has led to the increase in privately paying defendants (to the pleasure as you remember of the contract manager) also created an increase in unrepresented defendants. Some would try and find the funds to instruct lawyers but many, in the knowledge that they would not receive anything like a recoupment of their outlay opted for DIY justice.
  • LASPO 2012 prohibited the examination of complainants by their own alleged assailants thus the court appointed advocate scheme was introduced for this discrete section of the litigation. The rates have been paid at market hourly rates because the Government recognised the importance of protecting the complainants from direct confrontation by those they have accused.

It is not clear why The Government now feel that it is no longer necessary to pay these rates, set at Backhouse formula rates which reflect the care and attention required in these difficult cases where an advocate is parachuted in with no overall control of the case. However, we as a profession need to demonstrate with our feet that there is no will to dip into these cases at unacceptable levels of remuneration, at a time when the Prime Minister is highlighting the importance of protecting the victims if DV within the courts system. The government simply need to be told that they cannot have their cake and eat it. These cases do not attract inflated rates. The reason there is now such a gap between these Backhouse rates and general legal rates is a consequence of the cut to rates at way below the cost of an experienced professional providing the service.
Limiting remuneration to 6000 pages of evidence
We had a fair system of remuneration up until 2008 for Crown Court work. . We carried out necessary work in order to represent our clients. Recorded all work we carried out and at the conclusion of the case, drew up a bill based upon the hours of preparation and attendance before submitting the file to the experienced and sensible determining officers at the National Taxing Team.
Some bills were larger than others dependent upon the work required dependant on the client’s needs, dependant on the complexity of the case and dependent upon gravity of the offence and seniority of fee earner required. It didn’t matter how long the trial lasted and what random category the offence fell into, or how many pages of evidence were served.  The LGFS scheme worked for the MOJ because it allowed them to reduce the expense of employing a taxing team. They claimed that the scheme would help them to control the budgets and allow for certainty in preparation for Best Value Tendering which was being consulted upon at the time.
When the MOJ proposed reforms to pay us on the basis of offence category and page count it was argued that the solicitors who build reputations on thorough preparation would disappear. They haven’t disappeared but many very senior solicitors now do little or no legal aid work.  The initial scheme did not have a 10,000 page cap. Special preparation was introduced when that cap was implemented.  During the 2008 consultation the LSC’s own data suggested that less than 100 cases contained over 9,000 pages of PPE.  We know now that the scheme, for the Government at least, was not future proof. Whilst they were glad to see us no longer paid for perusing unused material they had not accounted for the developments in detection and prosecution of crime through the use of evidence obtained from digital communications. If the cost control measures introduced in 2008 has, as they say, as a result of Napper etc. increased the spend ( the data in the link below seems to suggest otherwise ) , then the MOJ need to be honest about the utility of the entire scheme .
In 2014 readers will remember there was an attempt to reduce payments of all LGF fees below 200, 300 and 500 pages. This was an earlier attempt to move the goalposts on their scheme. The smaller cases would have been hit significantly by this proposal.
If the MOJ are of the view that the scheme based on page count proxies does not work, then let us have an honest conversation about it, consider a return to the ex post facto scheme which worked across the system. With the Digitalisation of our system there would be no need for bundles of papers to fill their offices in Manchester, Nottingham and Liverpool as we can easily log the work we do on the portal as we progress.
However the disingenuous suggestion that we should no longer be paid for the work we do, for the papers that are served on us, is one we cannot and will not accept. Especially because any cost increase that has come about is because the LAA has been found by the High Court to be underpaying lawyers for the work they do. Instead of correcting their serial underpayment the LAA has decided to punish the profession by further pruning of the payments for large cases.
Choice 2. Take 8.75% cut (again and again)
In spring 2013 Mr Grayling introduced the Transforming Justice proposals and price competitive tendering for criminal defence work.  Legally aided clients, he implied were too thick to pick. Legal aid rates would be cut by 17.5 % and firms who bid for contracts would have to be able to work at these rates. Sixteen thousand (16,000) of us told him where to stick his proposals, and so   in September 2013 he shuffled the same pack and sought to introduce a scheme which he argued would make the 17.5% cut sustainable by limiting the number of providers to 525 (latterly increased to 527).  The cut was to be split into two trenches, one on 20th March 2014 and the second immediately upon commencement of the new contract. There was also to be a cut of 8.75 in respect of advocate’s fees.
In March 204, the Advocates fees were suspended subject to further review, as a result of the much chronicled “deal “with The Bar representatives at the time (the end result we are seeing in the shape of the controversial AGFS proposals).
The second cut was finally imposed in July 2105 by Mr Gove leading to action by solicitors that same month. This was ten months in advance of the proposed commencement date of the new duty solicitor contracts and despite the Government’s own argument during litigation that they needed consolidation in order to make the cut sustainable. Solicitors argued that if the advocate’s fees cut was to be suspended subject to review, then so must the solicitor’s cut. . Regrettably that time direct action was not sufficient to force the Government to back down on this cut, however the collapse of the tender process was. In January 2016, Mr Gove announced that the cut would be suspended from April 1st 2016. Savings will have course have been made as solicitors worked for 8.75% less during that period, and we were promised a review before the cut was implemented. No such review has ever occurred.
We do know from The Government’s own figures that there has been a 16% drop in higher crime expenditure and a 4-6 % drop in lower crime expenditure. The statistics speak only for themselves.
This weekend a senior solicitor reported on social media that he had spent 6 hours advising a terrified 16 year old accused of rape at the police station. The fixed fee? £149.00   Maths has never been my strength – but do the MOJ really assume we are so sick and cutthroat that we will carry out this service at 8.75 less  as a loss leader in the hope that the poor suspect will be charged. We need to say no, we need to say that we need to be paid to do this work, we need to be paid sufficiently so that the 16 year old’s rights are not just adequately protected but ensured.  This is where long term savings are made.
The reality is the arguments for cuts have not been made. We should not be offering savings we should be insisting on better remuneration. We should be auditing the MOJ, clawing back from them, seeking funds from (for example) the sale of the recently closed sales to support proper access to justice. Robbing Peter to pay Paul is never the answer.
Jonathan Black jonathanb@bsbsolicitors.co.uk
Partner BSB Solicitors www.bsbsolicitors.co.uk
February 27th 2017
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