Anarchy in the UK
11 October 2003
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The Government's juggernaut-like progress on its criminal justice reforms seems unstoppable, with 32 new offences being created in the last two years alone. But there is trouble brewing somewhere deep in the heart of the system. And it is not just the peers in the House of Lords defying Government plans to limit right to trial by jury. Downtrodden defence solicitors, dispirited by effectively a decade-long pay-freeze and smothered by red tape, are also up in arms. They say they are now faced with an unacceptable redrafting of the criminal legal aid contract and that this time they have had enough.
"Nobody in their right mind would sign a contract that would effectively put them out of business, and this contract, as currently proposed, will put an enormous number of firms out of business," reckons Ged Hale, managing partner of Yorkshire firm GV Hale & Co. "It's going to create the same sort of advice vacuums and legal advice deserts that exist around the country in housing and family law, where people have to travel 100 miles to find a lawyer."
This week the consultation over the general criminal contract came to an end. The Criminal Law Solicitors Association (CLSA) will advise its members not to sign it in its current form. Such is the strength of real anger at the perceived liberties being taken by the Government that lawyers will need little persuading. Indeed, this is not enough for some. In Sheffield 48 out of 50 lawyers on the duty solicitors scheme are calling for a boycott over the Christmas and New Year period, "to show the profession's unity and strength of feeling". They have also called on the CLSA and the Law Society to withdraw from negotiations with the Government unless certain "points of principle" are accepted, including an increase in the hourly rate.
"Based upon their current proposals, we'll now be advising our members not to sign the contract, because we believe it to be unworkable and not for the benefit of the solicitors," says Rodney Warren, CLSA director and chairman of the Law Society's access to justice committee. "There are important remuneration issues here, but we're also doing this because we believe that they're likely to result in a dramatic reduction in the quality of the service, and we're deeply concerned about that."
But would anyone miss a couple of thousand lawyers if they did not turn up to work next April? "We might not be on a par with nurses or those plucky firefighters or the troops in Iraq," says Steve Wedd, partner at Brighton firm BWS and CLSA leading light, "but we provide an essential service. Without it, anarchy will reign - that is not too strong a claim - if people didn't think they were being treated fairly by the courts." Refusing to put pen to paper would mean they would not be able to represent defendants at the public expense and that, goes the CLSA argument, would bring the criminal justice system to a juddering halt.
Of course, defence lawyers have been here before. It is only a couple of years since 1,000 defence solicitors rallied at the Birmingham NEC and voted (with nine abstentions and none against) to spurn the first version of the criminal contract. Chaos was only narrowly averted.
So how did this latest standoff come to pass?
Earlier in the year, every criminal law firm in the country received a notice terminating its legal aid contract for 2004 to make way for amendments to the standard terms. This was not an auspicious sign to an already jittery criminal defence profession. Not least because one of the problems they had with the existing contract was the unilateral power reserved to the Government to vary its terms and conditions.
In June the Department for Constitutional Affairs (DCA) unveiled its consultation paper, 'Delivering Value for Money in the Criminal Defence Service', which proposed a ragbag of cost-saving measures. These included: restricting certain types of cases to telephone advice only; limiting post-charge attendance at the police station; implementing the police station fixed fee for phone calls; restricting the availability of duty solicitor rates to the end of initial attendance at the police station; and preventing claims for advice and assistance being submitted if the solicitor has not acted until the end of a case.
The Criminal Defence Service (CDS) published its own consultation paper 10 days after the DCA's in what seemed like an unseemly haste.
"In the normal course of events, we should have first completed the consultation with the Government, which would cover the theory or broad policy issues, and then the Government should have decided what to do and how to implement it. Then the commission should have its consultation," explains Robert Brown, secretary of the London Criminal Courts Solicitors Association, which together with Warren and Wedd at the CLSA has been representing defence solicitors in negotiations with the Government. "In fact, we're not allowed that opportunity because they've issued them almost in parallel. What's the point in responding to the Government if the commission is going to change it all anyway?"
Clearly, the Government wants to sort out those pesky defence lawyers in double-quick time - the consultation period ended last week (1 August) and the new changes will be introduced in November and not, as expected, in April 2004 with the new contract.
As Franklin Sinclair, senior partner at Tuckers and former CLSA member, reflects: "The worrying thought is, are they trying to bring it in before we get a chance to say we aren't going to sign," adding that it all makes for "a disastrous six months" from November to April.
In the meantime, the profession is in limbo. Wedd set up his new practice BWS in Brighton last December following the demise of his old firm Wedd Daniel. Making a business case out of any criminal practice is not easy these days, but starting a new firm is even tougher. He makes the point that a dire situation was made worse by the termination of the contract. "My bank manager reads the heavyweight papers, he reads the Daily Mail, and when he reads that all the contracts have been cancelled he rings me up and says, 'What are you going to do next April?' And I have to say that I just don't know," he says.
But a spiralling criminal legal aid budget - which shot up by 22 per cent last year alone - has to be dealt with somehow. Of the 272m overspend on the legal aid budget, it was reckoned that 145m was accounted for by crime and 115m through asylum cases. The Government aims to slash almost 100m off the criminal budget. But where will it do it?
The Government accepts that the top 1 per cent of Crown Court cases by volume account for 49 per cent of that expenditure. However, it seems less keen to acknowledge the impact of those 32 new offences on the legal aid budget. In addition, defence lawyers are obvious targets, having long been the bogeymen of the criminal justice system - witness Lord Falconer's outburst (as Home Office Minister) last year against lawyers, saying that they deliberately stretched out cases to maximise on fees and let cases "slip through the cracks".
The Legal Services Commission (LSC) says it is part way through negotiations. "We have to have an effective criminal service and provide access to the most vulnerable and disadvantaged people in society," comments the new chief executive of the LSC Clare Dodgson. "But people have to understand that we have a finite budget - 1.85bn - that's roughly a fifth of the income stream of the legal profession in the UK economy, and the biggest chunk goes on crime. We have to understand how we spend it and make sure we're spending it wisely."
So what do criminal defence solicitors find so objectionable about the proposed changes to their amendment?
"Basically, it's a pay-cut," says Brown. "Most practitioners receive 99 per cent or all of their fees through publicly-funded work, and this removes certain forms of work from its scope."
The perilous economics of many criminal firms and departments means that even relatively small changes in remuneration could see many of them shut up shop. There were more than 7,000 firms doing criminal work prior to contracting, whereas there were only 2,900 in March this year.
"I just couldn't, with my hand on my heart, as senior partner, go to my fellow partners and recommend them to sign this contract in its current form," says Ian Kelcey, senior partner at Bristol firm Kelcey & Hall. "I know there are a lot of firms in that position."
If these arguments are driven by self-interest, albeit understandable, then lawyers also believe that there are plenty of compelling civil liberties reasons for objecting to the new proposals.
"It would remove access to justice for a whole raft of society," argues Kelcey. "And it would mean that the Crown Prosecution Service (CPS) and the courts would function at a much reduced level because they'd have to deal with so many defendants in person." By way of example, he cites the removal of standalone advice and assistance where the 'interests of justice' test is not met. "We might as well just scrap the 'Narey' first hearings [the next-day magistrates court hearings proposed last month by civil servant Martin Narey], because people will be just turning up unrepresented and make a complete farce of them," he says.
The amended contract also proposes scrapping police station advice where a suspect is providing samples for a drink driving offence. "It's a knee-jerk reaction to try and save money - and I don't think practitioners attend unless necessary anyway," says Kelcey. "What happens if someone is arrested for excess alcohol and then later the police search the car and find a burglar's kit. A custody office will tell him that he can't have legal aid for one offence but he can for another. That's a pretty confusing picture."
The CDS consultation paper recommends that there will be no funds for attending a police station where the client is, for example, detained in relation to a non-imprisonable offence.
"It doesn't help someone that they might not be going to prison at the end of it, they still need advice," argues Jacqui Knights, a partner at York firm Harrowell Shaftoe. The paper lists scenarios where only telephone advice would be funded. "It presupposes that telephones in police stations are private and there can be absolutely no assumption on that," she adds.
Other amendments to the contract will serve to deter lawyers from taking on work in other ways; for example, police station advice and assistance work will not be paid unless the case is concluded. As Knights points out, the reality for duty solicitors is that they could take a call in the middle of the night and advise a client for half an hour; the police would continue the interview the following day. It might be that 12 hours later all the firm's solicitors are busy, and so the firm would not get paid for those 30 minutes on the phone at 2am.
Even more provocatively, the proposed contract allows for the CDS auditors to assess at a later date whether it was reasonable for a duty solicitor to attend at all. "An auditor will be looking at the case with the benefit of hindsight where, for example, a client might have been acquitted but we didn't know that at the time," says Knights. "A contract should say you get paid X for doing Y, and not have someone coming along later to deem it unreasonable."
But will this all save money anyway? "I think that it will mean more trials, they'll take longer and the court clerks will spend more time during ordinary court hearings advising people about the implications of the charges they face," Knights reckons. "It could have a devastating effect on the administration of justice."
So if push comes to shove, are lawyers prepared to defy the Government next April?
"We're fighting to ensure that there are independent defence lawyers left in the future and if we don't stand up now we're finished," says Sinclair.
What about their duty to their clients? "It's a difficult decision," acknowledges Kelcey. "But then again, if you're going to go bankrupt, then it's not that difficult. You don't have a professional duty because you won't have any clients left."