Tuesday, 4 June 2013

My response to the 'Transforming Legal Aid' Consultation

Dear Sir/Madam,

I would like to submit this as my response to your consultation, ‘Transforming Legal Aid: Delivering a More Credible and Efficient System’. It does not address the questions contained in the consultation document directly, but generally comments on the proposals contained in and the issues raised by the document. It primarily relates to those proposals relating to criminal defence services and legal aid.

I am a legal academic within Plymouth Law School. My fields of expertise are criminal defence services and legal aid. I find the proposed reforms deeply concerning, and believe they will be highly damaging to the effectiveness, efficiency and – ultimately – credibility of the criminal justice system in both the short and long term.

I suspect you will receive a large number of responses echoing mine. As such, I will attempt to be as concise as possible and focus on the major issues as I perceive them from a non-practitioner perspective. However, I can assure you that the views I will express, although my own, form part of a wide consensus amongst my colleagues in both academia and the legal profession.

The introduction of price-competitive tendering for the provision of legally aided criminal defence is both unworkable and inappropriate. The infrastructure required for bidding at the rates proposed (at least 17.5% below current rates) will not be achievable for nearly all currently operating firms, even large ones, and certainly not in the timescale suggested. 

It is clear that firms will need to increase profits by at least 250% in order to survive; this must be achieved within a year. This is not simply not viable. One might therefore suggest other providers will step in – this can only mean corporates with the necessary size and infrastructure to do so. 

Such entities have no experience or expertise in providing highly specialised criminal defence services; they will therefore recruit practitioners to work in-house and will do so at the lowest cost possible (as encouraged by the ‘lowest bid’ model). This will consist of the least experienced, the least competent and the most desperate. The best lawyers will simply cease to work in publicly funded criminal defence. This will impact on the future quality of the judiciary, the training of new practitioners, and most importantly the quality of the service provided.

Moreover, when such providers re-bid for contracts in several years time they will inevitably tender at massively inflated levels, since they will almost certainly be operating at a loss in the short-term. The Government will have to accept these bids as the current providers will no longer exist, and some form of criminal defence service must be provided. This is fairly simple economics. It will be enormously costly and will destroy any short-term savings the Government believes it can achieve.

The proposed division of service provision into geographical areas, where providers will only be able to have a fixed market share, will create advice deserts for the most vulnerable clients (particularly in rural areas). It will be logistically and financially unviable for the remaining providers to service large areas sufficiently, particularly considering that travel costs are not reimbursed. Moreover, a fixed market share is antipathetical to free market competition – quality of service will inevitably suffer as providers will have no motivation to improve.

It is conceded in the consultation document that the removal of client choice, to guarantee volume for the remaining providers, is necessary to ensure the proposed model works. This is simply unacceptable. Client choice is absolutely the key driver behind quality legal services and is a fundamental right in our liberal democracy, alongside the right to choose your NHS doctor or which political party you wish to vote for. 

To remove it will not only drive down quality (also conceded in the document) but will destroy years of local knowledge amongst the legal community, sever relationships between clients and lawyers, and render reputation and quality irrelevant to securing work. This will mean less incentive to provide a good service, to the cutting of corners, to the exposure of vulnerable citizens to poor (or even no) legal advice, and inevitable disruption in the criminal justice system.

Lawyers are crucial to ensuring clients attend court, plead appropriately and follow procedures correctly; the trust between them means that advice the client may not like can be provided, and lengthy proceedings can be avoided. Many clients, denied their choice of lawyer, will opt to represent themselves in person. This will create widespread delay, inefficiency, cost, and unfairness. 

Trials will descend into farce, riddled with adjournments and delays; moreover, without a sturdy, reasoned and thorough examination of the case against a defendant, prosecutions will become less robust and miscarriages of justice will increase. Witnesses and victims may also be faced with the intimidating prospect of being questioned by the accused in court. As such, some may decide not to engage and prosecutions will collapse. Furthermore, questioning of complainants by the defendant is prohibited, by statute, in certain sexual offence cases (including rape), raising the prospect of the judge cross-examining witnesses for the defendant or of no cross-examination at all. This is extremely troubling.

I am also deeply concerned by the proposal to pay the same rate to lawyers for guilty pleas as for trials. This clearly creates an incentive to avoid costly trials which involve many hours of work, when a guilty plea is both cheaper and quicker for the lawyer. Considering that lawyers will inevitably have to be very wary of extremely tight profit margins under the proposed system (potentially with pressure to reduce costs from practice managers, senior partners, shareholders or heads of chambers), the temptation to give less than a full defence for the client will be very real.

Furthermore, such a proposal may well destroy the essential bond of trust between lawyer and client; if the lawyer advises a guilty plea, the defendant will be entitled to ask ‘Is he or she doing this to save money?’ This suspicion, coupled with the fact that the lawyer will be a State-assigned stranger, will cripple effective legal representation.

I am also concerned, in the case of barristers, that the proposals will seriously undermine Rule 303(a) of the Bar Code of Conduct:

‘A Barrister must promote and protect fearlessly and by all proper and lawful means the lay client's best interests and do so without regard to his own interests or to any consequences to himself or to any other person’

This is a crucial and long-standing ethical principle, without which defendants would be given a less robust defence against the accusations of the State. With the introduction of the same fee for both guilty pleas and trials, the barrister will inevitably have a personal interest in what course to pursue; the cost consequences may well be in the back of his or her mind. To apply this kind of pressure to a professional who's primary responsibility should be to the client is indefensible. In summary, this proposal, to my mind, creates a serious conflict of interest, will endanger professional ethical principles, and is a moral turpitude.

I would like to add one more thought from an academic perspective. The provision of robust criminal defence for those accused of crime has been an essential part of English and Welsh criminal justice for over three centuries. The ethics and traditions ingrained in this professional role have been repeatedly proven to be essential to fair and effective prosecutions, to the prevention of miscarriages of justice, to the enforcement of and respect for the rights of individual citizens, to the protection of victims and witnesses, and to efficient and effective proceedings.

Under these proposals, the breadth and quality of this service – underfunded for so long now, and part of a legal aid budget accounting for under 0.5% of Government expenditure – will collapse. The number of litigants in person will increase enormously, endangering defendant and victim rights, and generating delay, ineffiency and cost. Judges will be forced to become advocates for the accused. This has not been common since the 1600s. These proposals will turn back the clock by nearly 400 years in criminal justice terms. 

Please reconsider these reforms – listen to the profession that provides the service, the academics that study it, and the public you serve, 71% of whom, when polled recently, agreed that more miscarriages of justice will occur if you proceed.

Kind Regards,

Dr Tom Smith
Plymouth Law School
Plymouth University

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