On 22^nd March 2016 the Commission received evidence from the Criminal Law Solicitors’ Association [CLSA] , and the London Criminal Courts Solicitors’ Association [LCCSA].

The LCCSA was represented by Jonathan Black [JB], its immediate past-president. He runs a small practice in Central London, BSB Solicitors.  It is currently a two partner practice employing four members of staff and some genuine consultants.   The firm has been practising legal aid crime since 2002.   They recently moved to premises in Gower Street.  They cover a range of work, including some in-house advocacy.  They are all duty solicitors and they cover duty solicitor work, too.

The CLSA was represented by its Chair, Zoe Gascoyne [ZG].   She is also the current Chief Assessor for the Criminal Litigation Accreditation Scheme with the Law Society.   She is a partner in a six-partner crime firm in Liverpool called Quinn Melville.  She has only practised crime since she qualified.  She is a duty solicitor and a higher rights advocate, although she chooses not to use that qualification.  She appears in court on a day to day basis.

 

ZG:

A broken criminal justice system

You are obviously looking at issues in relation to Access to Justice.  There is a strong feeling at the moment, mainly from a practitioner’s point of view, that the criminal justice system is on its knees, that it is broken.  That is the consequence of a number of factors, as those of us inside the system see it.  Outwardly it is more difficult to see because of course the criminal justice system isn’t something that people access by choice.  You either access it because you are arrested and you’re there as a defendant, or you access it because you are there as a victim.  Very few people would choose to be either of those.  At the moment it is doing a disservice to everybody who comes into it unfortunately, be they victims or defendants, whether vulnerable or otherwise, or be they people who have been wrongly accused.

The entire system probably needs to be looked at again.  There are too many things going on in terms of people trying to achieve things that simply aren’t going to work within the current state of the system.  We have people coming up with initiatives trying to modernise the criminal justice system which in effect are acting as sticking plasters.  They are not going to change anything until you actually deal with the problems that we have within the system.

The problems that we have within the system are tenfold.  They range from problems within the police force, problems within the Crown Prosecution Service, problems with probation, problems within the prison system.  Legal aid has obviously been a huge problem, and it is the thing that we concentrate on mostly because it’s the thing that directly affects us, but its knock on effect is massive.

Over work and under-pay for criminal legal aid lawyers

It is definitely fair to say that for a number of years the criminal justice system is being underpinned by good will, because the majority of people who go into criminal legal aid work do so because it’s a vocation.  They don’t do it because you earn vast amounts of money because you certainly don’t.   It’s offensive when we read reports in the Press of what people think fat cat lawyers do in criminal legal aid work because the fact is they just don’t.   It’s hard work, it’s 24/7, I don’t know any criminal lawyer who isn’t available 24/7.   I am available on the phone continually.  I have three young children.  This is something we have to do if we choose to go into criminal law.   It’s an area where there hasn’t been any increase in pay – and I’m sure other people have mentioned this – in the last 18 years and then we’re faced with cuts.

The recent issues over criminal legal aid contracts

You may or may not know that we were told that we were going to receive a 17½% cut which was huge.  That was going to be done in two stages.  It was a decision by the then Lord Chancellor, Chris Grayling, who decided that in order to help the market cope with the cuts he would bring in enforced consolidation.  That was what led to the two tier issues and the contracting issues that we had.  It was never going to work.  Those who work in the profession knew that it wasn’t going to work, and  we’re now in a situation where we do appear to have a Lord Chancellor who is fortunately listening to some extent and is choosing to engage with us which has certainly been more positive.  But these are things that need to be looked at, they’re not going to be things that are going to be changed overnight.

We have people constantly working on new initiatives to try and make our criminal justice system better, such as better case management and digital case management.   You can’t put systems like them in until you get the basics right.  The problem with the criminal justice system at the moment is we don’t get the basics right, so there are problems right from the point of arrest upwards, and if they start off on the wrong foot they carry on on the wrong foot.

Some contemporary problems

We have problems in the CPS.  They can’t cope with the workloads that they’re given and cases aren’t properly prepared.  This does a disservice to everybody.  When you put in something in place like case management, what happens is that if you have better case management and you are told that by this date you must do X and by that date you must have a plea, it forces false results because people then become focused on what the result is, as opposed to whether actually justice is being done or not.   I think that is very concerning because that leads on to a different problem which I see as being a problem at the moment which is the judiciary.   What’s happening in terms of what the Ministry of Justice (MoJ) are doing now is that they are removing the independence of the judiciary, who are now being judged on the basis on how quickly they can get cases through the system, how quickly they can get pleas in.

You can’t do that with individual cases because each case within the criminal justice system is complicated.   Now I don’t say for one minute that cases should just be allowed to drift on, but there are times in every case when somebody needs to be able to stop and say

“Actually, do you know what?  We can’t pigeon hole that case into the 28-day time limit”.

Judges aren’t being allowed to have that freedom of being able to look at a case and say that this case just isn’t going to fit into that timetable.   What’s happening is that they are given these initiatives by the MoJ, and they are told that this is what they must deliver, and unfortunately our justice system now focuses more on filling in forms and ticking boxes more than it does in obtaining justice, and this does a huge disservice to everybody.

It does a disservice to victims because what you will find is…  In one of the very first cases that I did under the Better Case Management System, we had a case where we had to take instructions very, very quickly  from a lady on a complicated matter.  She had never been in trouble before, but we are under pressure –

“There needs to be a plea today because this initiative is coming in – you will enter a plea.”

The allegations in this case spanned over a period of 5 years.  As it happened we went to the Crown Prosecution Service and we said:

“Listen, the instructions we can get to date on the paper work that we were provided with, shows that this lady accepts guilt in relation to this particular matter over a 2-year period.”

Historically the Crown Prosecution Service would have said:

“OK, thanks very much for that.  We’ll go away and look at it against the evidence we’ve got.”

They didn’t do that because the concern is that we must get the plea in.  They instantly said “yes”.

Now is that justice?  It might well be, and I would say that it was a fair result for my client because her instructions were just that she was guilty for that period, but if she had not been guilty for that period and been guilty for the full five-year period, it’s not justice.   The Crown Prosecution Service is literally folding because they don’t want to go into Court to have to say to the Judge:

“Do you know what, your Honour, we need more time on this.”

Judges are under pressure from the MoJ.  They say we have got to have a plea: we must move on. Their independence is being removed.

We can’t have the criminal justice system run on box-filling and form-filling:

“We have got to have a plea”.

There are young, vulnerable people in the system.

There are huge problems in getting experts.  The rates are appalling.  We have to take cases back to court and say we can’t get an expert.  We have to have one, but there is no one in this field who will do a report for the money on offer.  That’s not justice.  The defendant needs a report but is denied one because of the situation we are in.

Because we can’t get a report and have to report back to court, the timetable is out of the window.

If the issues were identified at the start on a more holistic basis, it would be better.  Judges could utilise their independence.   The judge could say that the case won’t fit into this timetable and that he isn’t concerned with the MoJ.

We need to revisit these things.  It is no good having better case management systems when the system is fundamentally broken.  It has got to be put right from the bottom.  The police and the CPS are under-funded.  There are constant shortcuts right across the board.  The knock-on effects affect victims as much as the defendant.

The Legal Aid Agency [LAA] needs to be completely looked at.  The cost to the taxpayer is just enormous.  The waste of taxpayers’ money ploughed into the two-tier system was quite absurd.  It would be better to put this money back into the system to try and get fundamental things right.   This is not happening.

Legal aid lawyers are not fat cat lawyers.  They don’t listen to what we say.  We are not in it for the money.  We do it because we feel so strongly and passionately about justice.  We can’t be said to be self-serving.

Our engagement with the MoJ is good now.  We have regular meetings and workshops.  There has been a U-turn.   They have found it is probably better to listen.  They are listening, and are engaging with people who are in court day in and day out, being shown the problems caused by every element of the system, by people who are concerned with the criminal justice system.

 JB:

Funding issues

I want to speak about funding issues in a broken criminal justice system: not only within the court system, but in the police and CPS as well.

A girl of 15 detained in a police station for nearly 24 hours

Last week I was night duty solicitor between 11 pm and 8 am, in the North London scheme.  I was called out at 11.30 pm.  A 15-year old girl had been in custody since 1 pm, for an alleged credit card theft.  She had not been questioned.  Her mother would not come to the station, her father could not be contacted, and her grandmother could not come, either.  Social services were contacted at 11 pm, and said that she must have a lawyer first.  Then they couldn’t get anyone to come to the station until the morning.  So she was interviewed next morning.  She had a perfectly reasonable explanation.  There was nothing in the allegation and she was released.

It is not acceptable that we are tolerating a situation like this.  It is not justice., and currently other players in the system have no access to justice.

Solicitors’ police station duty schemes

Criminal contracting came in just over 20 years ago.  PACE introduced a solicitors’ advice scheme in police stations.  Solicitors needed an incentive to go to the police station when they got a call from a custody sergeant.  Nobody wanted to do it.   It was not glamorous work.

Solicitors were then incentivised to do the work by relatively generous hourly rates, higher rates for evenings and weekends, and different rates for different types of offence.  There was an enhanced rate for murder cases, for which a solicitor would be paid properly.  This meant that quality representation was provided for those who were most at risk and in need of proper representation.  People were being paid properly, and were enabled to take time for the task and ensure proper disclosure.

Things improved still further after the Cardiff Three case [1].  Accreditation was introduced to prevent a re-occurrence of the problems in that case.  Quality representation was always to be key.

The duty solicitor scheme was seen by some as a means to an end.  Newly qualified young solicitors wanted to achieve duty solicitor status for their self-respect, if nothing else.  They had autonomy over their cases and could decide how they were run, and they were not at the beck and call of supervisors.

Another problem arose from the deregulation of higher education and the opening up of colleges of law.  Firms recruited graduates without training contracts.  The firms were encouraged to maximise their income, and these graduates constituted police station fodder.  They were given a certain amount of training in what to do.

From 2008 onwards there was an attempt to control the cost of police station payments by introducing a fixed fee scheme.  This was not welcomed by the profession.  Corner-cutting took place to minimise the time spent in the police station, so as to balance off the hours of dead time.  The fixed fee constituted a reward for getting in and out of the police station quickly.   When the police messed you about and forced you to wait several hours, you might be too far from your office to go back to it, and this constituted dead time.   You might have to wait all night for an appropriate adult.

This swings and roundabouts system didn’t do justice any favours.  In making savings in one place, they were running up costs elsewhere, as a National Audit Office report made clear.  Mistakes were being made elsewhere as a result of cuts in justice.

Fees for representation in the magistrates’ courts

Then there were the changes to remuneration for magistrates’ court representation.  In the early 1990s a fixed fee scheme was introduced.  Lawyers were encouraged to reduce the number of hearings required in each case.

In 2008 fees for travelling and waiting, whether to or from court or police station, were removed.  The polluters were not the professionals.  The inefficiencies Zoe talked about impacted on our ability to work these cases properly – and their profitability.

Widespread centralisation and closure of courts are not a new thing.  The number of courts has been reduced in the Westminster area, where there used to be five magistrates’ courts when I started.  In North London there used to be seven, and there are now two.  There is now a huge cost-driver for firms to minimise the time spent in court.  Solicitors are not paid for travelling or waiting.   The problem is even huger outside urban areas, where solicitors and their clients may have to travel long distances– and to meet the cost of travelling themselves.

Means-testing for legal aid in criminal courts

Means-testing has been introduced for legal aid in the criminal courts.  I’m not convinced it has achieved its end.  The incident when a Premier League footballer received legal aid on a charge of spitting on a football pitch received a lot of publicity. [2]  Means-testing is still a complex process in the magistrates’ court.   There is a strong argument for adjourning cases while the complexity of an individual’s means is being collated and put before the LAA.   This involves a huge bureaucracy.   Costly adjournments themselves carry a high cost.  The wastage hugely counter-weighs the savings derived from denying legal aid in magistrates’ courts.  The fee is £220 for a guilty plea or £360 for a trial.  Not a huge public outlay, and it is mired in the cost of adjourned hearings.

And under s 36 and s 38 of the Youth Justice and Criminal Evidence Act 1999 the courts will appoint a lawyer on private fee rates to represent an unrepresented  defendant for cross-examination purposes.  He will submit a bill of £400-£600, properly billed and claimed.

Means-testing in extradition cases

Another issue concerns means-testing in extradition cases, which go to the Westminster Magistrates’ Court.   Typical clients include many East Europeans for whom a European Arrest Warrant has been issued for a minor crime in their home country.   Most of them are not passported for benefits.   As painters/decorators they earn cash, and it is often impossible to get proof of their earnings if they are remanded in custody.   So they are remanded week in and week out.   Some of them can employ a lawyer privately, but often they are within the criteria for legal aid.   They need to provide proof of what they earn, but there is often a language barrier and an interpreter cannot be provided unless there is legal aid.   You should seriously consider removing the means test for extradition cases.   Many of these cases reach a final hearing and then have to be adjourned while the legal aid position is sorted out.

The constraints on submitting “no case to answer” at an early stage

Committal proceedings were abolished in about 1998 for indictable only cases which were transferred straight to the Crown Court.  You can only submit “no case to answer” at the case management stage in the Crown Court.  This is seldom done.  It was a useful tool in the past.  Prior to this change these cases were challenged in the magistrates’ court.   Now all “triable either way” cases are transferred immediately if the magistrates decline jurisdiction or if the defendant elects Crown Court trial.   Now there are Plea and Trial Preparation hearings when there is often only a limited opportunity to make a challenge.  We are required to enter a plea at a time when there has been minimal disclosure of information.   As a result, we can only submit “no case” when the case is proceeding towards trial.  There would be huge costs savings if the prosecution evidence could be challenged at an early stage.

Fewer erroneous charging decisions

There is a need for joined up thinking at the police station stage.  When the CPS review a case after the defendant has been bailed, we can’t make representations.  If we could, there would be far fewer erroneous charging decisions.  We should be allowed an appropriate input.

Fixed fees for representation at court

We have had fixed fees since 2008.  Some are so derisory that solicitors won’t take the cases on.   We have made representations to the Law Society about this.  For lower end cases with significant penalties such as Actual Bodily Harm, harassment or burglary, the fixed fees are so low that people are turning their back on them.  This causes huge access to justice problems.  It may be that the factory firms are piling them high and selling them cheap.

One size doesn’t fit all for these types of claim.  There may be language difficulties or the client may be mentally ill.   Then there are specific London difficulties, such as the transient nature of our client base, language problems and wider mental health issues.

ZG (commenting on JB’s statement):

There is becoming a dangerous inequality between the length of time the police and the CPS are given to investigate cases and the length of time the defence team is given to prepare the defence.  The defendant’s lawyers have no input until their client has been charged.  At court we are expected to enter a plea as soon as we get there: indeed, we are having to indicate on a form at a very early stage whether our client pleads Guilty or Not Guilty.  This presents all sorts of difficulties.  The solicitors are afraid of the judge, so they want to get the form filled in.

The police interview a 18-year old with special needs with no solicior or appropriate adult present

[ZG told a story about what had happened after a 18-year old young man with very obvious learning difficulties, who had been statemented and was under the care of a consultant, had been interviewed by police on a very serious charge with no solicitor or appropriate adult present.   His first solicitor had advised on a guilty plea.   ZG said that the only evidence against him  was contained in this interview which was clearly inadmissible, but it was then too late to retract the plea or to achieve a change in the legal aid representation, and the family could not afford private representation.  She continued:]

Our system lets people down in a horrendous way.  There is a dangerous inequality of arms.  There are a number of issues here:

• The quality of advice he received from his former solicitor, so that it was too late when I saw him for the first time;
• The unwillingness of the judge at the Crown Court to permit the legal aid certificate to be transferred to my firm, so I was unable to step in to put the case right.

As a result, the case had gone too far when I became involved.  I would have liked to step in but I was not allowed to make representations.

 Asked about the electronic systems used by the Legal Aid Agency

ZG:

We have many legal aid systems that are not fit for purpose.  We have problems with them.  The Bravo e-tendering system was one, and the Portal (through which we have to submit applications for legal aid funding) is another.  We couldn’t access the Portal for a long time, and it is now partially down quite often.  We are told “You need to log in for seven minutes at a time”, but if you have your client with you and you are not being paid this is unrealistic.   Huge savings could be made on the administrative side of the LAA’s operations.   We can’t afford any more cuts in fees, as they are already derisory.  We have suggested efficiencies and places where savings could be made.  The CLSA has submitted a paper, and has given many examples of possible savings.   I will submit it to you later.  We want the MoJ to continue to engage with the people who do the job.

Questioned about the problems being caused by illegitimate transfers of clients on payment of unregulated referral fees

JB:

It is an issue.  It has been a big problem for a number of years.  A multi-handed case becomes commoditised.  There are fixes all round the country.  Someone gets a sniff, sees all the defendants and pretends he can act for them all.

There was a massive drugs case in the Nottinghamshire area where this happened.

I received an approach from an Albanian interpreting agency which told me they would give me the case if I retained them as the interpreters. I should write to the client and say that his family had requested this.  I refused to do so, and heard no more.  This is happening all over the place, and it is quite unfair.

There is also an issue about client choice.  A suspect may be represented by the duty solicitor in a relatively complex matter.  The solicitor’s firm may not have the appropriate experience for that type of case.   A specialist firm then comes on the scene, whom the client wants to instruct.  There is a balance to be struck over the right of the solicitor who was instructed first and the right of a client to choose to go to a firm with the necessary experience.

 ZG:

I have not encountered this problem much in Liverpool.

One solution which we have suggested to the MoJ is that if you represent two defendants in a case, at present you are paid a single fee.  Your professional risk is greater if you act for the second defendant with no additional remuneration.  There is no reason for you to inquire in any great detail early on if there is a conflict of interest: you will get no reward for keeping hold of the second case.

A lot of firms will tell the second defendant to go elsewhere, so that the taxpayer has to bear two sets of fees, even though there may in fact be no conflict between the defendants.  We have suggested to the MoJ that in such a case the firm representing two defendants should receive one and a half times the fee for a single defendant.  This would reduce people’s ability to trade these cases.

 JB:

There is a lot of noise from Robin Murray at the Law Society about the need to police the touts, and I hope that increased pressure will be put on the Solicitors’ Regulatory Authority which often does nothing if a complaint is made.

This is not the only solution.  You have Mr Fixit trying to sweep up all the defendants for his mates. There is a need to find a solution with teeth.  Under the contract the LAA is responsible for enforcing the contract but it does nothing.  The SRA has power to do something, but they tend to do absolutely nothing about it.

Bill Waddington (Commissioner):

There is now a new duty rota that has been started.  The profession was warned that it was going to get tough for ghost duty solicitors.  One duty solicitor on the list had retired to live in Spain ten years ago, but the firm benefited from his continued presence on the list for the area where he used to work.   Under the new duty rota, they will be in trouble if such names are retained on the list and nobody has taken them off.

In the old days the custody sergeant as part of his job would tell a vulnerable person who said he didn’t want a solicitor that he had to have one.  Is it your experience that this is now not happening?

Police interviews in the absence of a solicitor

ZG:

The police would much rather not have solicitors present.  They will say that engaging a solicitor will take too long, but if a solicitor was actively involved early on, quite often he might proactively stop the case from proceeding at all.

I acted very recently for a woman who had been arrested for abuse of her grandchild.  This was clearly a wrong accusation, and after I had spent a lot of time speaking to the police it was dropped.  Everybody benefits from the early engagement of a solicitor.

The police will often say that for your convenience you shouldn’t wait for a solicitor, as it will take much longer.   They are not abiding by the PACE Codes.   If the custody sergeant has identified that a suspect is a vulnerable person, he should insist on the presence of an appropriate person at the very least, if not a solicitor. [3]  This is not happening.

 JB

In the past transcripts of interviews were supplied to the defence team.  If a defendant is unrepresented the officer will type up a 3-line summary of what was said.

 ZG:

We don’t receive interview transcripts in the magistrates’ court.

JB:

We should get the tapes.  The unrepresented defendant may not know that self-defence is a defence to the charge and may not mention it.  In their summary the police will record that he admitted he assaulted the victim during an argument, and with all the pressure for an early plea the case then proceeds to a guilty plea.  The CPS are aware of this problem.

Another Commissioner:

In the old days a judge would not allow such evidence to go to a jury if a summary has been made up by a police officer after an interview.

 JB:

This is the direction of travel.  It is difficult to get a disk or a tape of an interview.  If there are going to be further cuts in representation, whether a two-tier system is introduced or not, larger firms will be doing this work.  They will be processing cases, and you don’t get paid for listening to tapes.   This is only done by firms who are doing their job properly, but there is a danger that such firms will disappear.

 ZG (in conclusion):

With constraints like the better case-management systems, there is so much pressure on judges to proceed in a certain way.   It is very much dictated by the procedure: “28 days for this, and 28 days for that” with everything neatly in place.   Judges are put under huge pressure to make the system work, and the judge becomes answerable as to why a case has not proceeded as it should.  This creates huge problems.  Everyone is trying to make things work, but it is like putting square pegs into round holes.

Judges should be given back their responsibility and their independence.  They have an enormous amount of responsibility and should be allowed to use it.  They are after all hand-picked for the job.  Let them case-manage cases as they think the particular case should be managed, and not on the basis of a court form or a set timetable.

 

[1] On an appeal in 1992 against a conviction for murder, the interview tapes were listened to for the first time and the Lord Chief Justice (Lord Taylor) said of the interrogation of one of the appellants that “short of physical violence, it is hard to conceive of a more hostile and intimidating approach by officers to a suspect”.  This had not been apparent from the transcripts used at the original trial and retrial.

[2] The change was made in 2006 after £40,000-a-week Bolton Wanderers striker El-Hadji Diouf  claimed legal aid to fight a charge of spitting at a Middlesbrough fan.

[3] See Home Office Guidance for Appropriate Adults.