Friday, 12 April 2013

Price-Competitive Tendering for Criminal Defence - Some questions and comments

The Government's consultation on price-competitive tendering for criminal defence services was released on Tuesday 9th April 2013. Although not part of the substance of the proposals, the MInisterial Foreword by Chris Grayling raises a variety of questions about the underlying intentions and objectives of the proposals; I will endeavour to consider some of these in this post.

'Transforming legal aid: delivering a more credible and efficient system'

The title itself is of interest, particularly the phrase 'more credible'. Will the system be more credible in the eyes of practitioners? After all, defence lawyers will have to deliver the services within the new context proposed. They are, to some extent, the system. Without them it cannot work. Considering that the defence community, led by the CBA and CLSA, have been highly critical of PCT for years and are now discussing direct action, the question of how 'credible' the proposed system is and will be is important. The lack of consensus undermines this claim.

'Unfortunately, over the past decade, the system has lost much of its credibility with the public. Taxpayers’ money has been used to pay for frivolous claims, to foot the legal bills of wealthy criminals, and to cover cases which run on and on racking up large fees for a small number of lawyers, far in excess of what senior public servants are paid. Under the previous government, the cost of the system spiralled out of control.'

The claim that the system has lost credibility with the public is not supported with evidence; it is therefore a weak basis on which to justify major financial reform. The funding of 'wealthy criminals' and 'racking up of large fees' applies to a minority of cases - as the foreword recognises, this represents a 'small number of lawyers'. As such, one might ask why reforms aren't isolated to targeting these areas, rather than applying a blanket reduction in costs across the board? Additionally, the claim that Labour are responsible for costs that have 'spiralled out of control' is inaccurate - according to the National Audit Office, legal aid funding reduced by 12% in real terms between 2003 and 2009. As such, the suggestion smacks of playing politics. 

'In the current financial climate, it is now necessary to make further savings by embarking on the next phase of reform, mainly focused on criminal cases.'

Many have questioned the apparent rush to impose the reforms contained in this consultation. The Government are keen to see the process of implementing PCT started by the end of this year. But why 'now'? It has been suggested that it would be more sensible to slow the pace and explore the implementation of such a complex and controversial scheme over a number of years. Perhaps the need for speed is related to the electoral calendar; but that is of course speculative.

' . . . to make certain that legal aid is not funding cases which lack merit or which are better dealt with outside court; and to encourage greater efficiency in the criminal justice system to reduce costs. The hard working public pay for legal aid, and we must deliver a system which commands their confidence and spends their money wisely.'

This paragraph raises several points of interest. The suggestion that legal aid should not be provided for cases which 'lack merit' has three problems. First, this appears to prejudge a case before it has been considered. Second, it seems to usurp the powers of the CPS (who make charging decisions), defendants (who decide whether to contest) and Courts (in which magistrates, judges and juries decide upon guilt or innocence, admissibility, procedure, costs, etc.). Third, what does 'merit' mean - and what kind of characters and causes will be deemed unmeritorious? Since over 90% of defendants plead guilty, does this mean they lack 'merit' and therefore legal aid is not justifiable? Giving the job of deciding/defining 'merit' to the Government, civil servants or even the public would be dangerous, not only because of politics and prejudice, but because of a lack of expertise.

'Prisoners who wish to challenge their treatment in custody will have recourse to the prisoner complaints procedures rather than accessing a lawyer through legal aid.'

This proposal has potential issues - how neutral and fair will an internal procedure be? Is eliminating external scrutiny likely to encourage lawful practice?

'This is a comprehensive package of measures to restore the public’s faith in the system.'

This objective is put at the forefront of the proposals and their justification. But will the proposals improve the quality and effectiveness of the system? Such aims are notably absent.

'For criminal litigation, we are proposing a model of competitive tendering, where solicitors firms must compete to offer the best price they can for work in their local area. This will mean successful firms expanding or joining together, to achieve economies of scale which can be passed onto the taxpayer in savings to the public purse.'

Solicitors firms are identified above; but the elephant in the room is the opportunity for other organisations to bid for contracts. This could include ABS organisations and corporate providers. Potential candidates that currently offer/are involved in legal services include Eddie Stobart and the Cooperative Group. The danger identified by the professional defence community are that clients will be less well served by 'Tesco' lawyers, as profit, low cost and high volume will take precedence. Furthermore, such large companies may well develop a monopoly in the market, squeeze out smaller, independent competitors, reducing choice and reducing quality. This may well be the primary intention of the proposals; after all, as stated above, all must compete to offer 'the best price', rather than the 'best quality'.

As the quoted paragraph indicates, successful firms will need to expand or merge. One question is whether 'success' will be measured by effectiveness, quality and choice, or by profit and speed. One might also ask whether this reduction in competition will be good for the overall service quality provided by the market. This strategy seems to encourage an 'if you can't beat them join them' culture - and beating the larger, wealthier firms and organisations will inevitably be difficult. The savings to the taxpayer identified above - which one presumes will not be 'passed on' in the form of tax cuts - may well be purchased with a gradual sacrifice in the time and effort invested in appropriate defence work.

'For criminal advocacy, we intend to reform the fee structure, to ensure that cases are resolved as quickly as possible, which will mean less time required of lawyers, and lower costs to the legal aid bill.'

Again, reductions in cost and increases in speed appear to be the paramount concern - this raises the issue of whether accuracy, legitimacy and effectiveness will be negatively affected, not just for the defendant but for all parties in the case. An early guilty plea and swift resolution will be appropriate some of the time - but not all of the time.

'The impact of these changes will also help remedy the great disparity which had emerged within the legal profession by reducing the payments to that small number of lawyers earning very high fees whilst protecting the majority of barristers who should not lose out as a result of our proposals. Indeed, some of the lowest fee earners will be better off.'

First, it is worth questioning whether 'small numbers' of lawyers earning large amounts represents a 'great disparity'; it is a disparity certainly, but if the vast majority are earning fees in a similar range, then it is not necessarily dissimilar to any other profession. It is also worth asking what sort of work this cohort of 'elite' lawyers undertake? Presumably, complex, lengthy and high cost cases, perhaps with extremely high levels of pressure and high profile litigants. In this context, it is not an inherent unfairness for these lawyers to earn more. This is not to justify disproportionately excessive fees but simply to question the premise that because some lawyers earn very high fees there exists a 'great disparity' within the profession that needs urgent redress. 

One wonders whether the focus on high-fee earners is a form of decoy, used to justify the general reduction in funding. Moreover, if one accepts the logic that fees are disproportionately funnelled to the top-end of the profession, then surely a system-wide drive to reduce costs is inappropriate? It seems logical that an across-the-board lowering of fees would hit the majority of defence lawyers first and hardest.

'In short, the reforms outlined in this document both boost public confidence in and reduce the cost of the legal aid system.'

Arguably not. Public concern about the legal aid/criminal justice system is nearly always driven by media reporting (the near exclusive source of information about law for most people) of a minority of cases, presented in a biased manner coupled with long-established stereotypes about lawyers and defendants. These reforms are highly unlikely to impact on this.

'I am keen to explore further ways for convicted criminals to bear a greater proportion of their legal costs themselves . . . whether through deductions from future earnings, or by some other means, we should be seeking to ease the burden of legal aid on the public purse, whilst guaranteeing everyone the right to a defence.'

A controversial suggestion. It is worth asking whether effectively extending punishment of an offender beyond their sentence is wise or fair. It certainly seems to contradict the principle that you are punished once for a crime. Additionally, such a financial penatly would arguably damage rehabilitation and increase the likelihood of reoffending. The desire to guarantee the 'right to a defence' is positive (albeit legally required) - but to what standard? What is a nominal defence other than a fig leaf for a system that does not respect individual rights?

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