My tenth story of injustice relates to a problem that was frequently mentioned in the evidence furnished to the Bach Commission. It relates to the conduct of a small minority of the duty solicitors approved by the Legal Aid Agency for police station duty.
The loss of a taxi-driver’s licence
Bert had worked for 17 years as an honest, decent minicab-driver. He was then accused of taxi touting. The duty solicitor at the police station advised him to accept a caution for taxi touting so that he could get out of the police station quickly and avoid a criminal conviction.
As a consequence of the caution Bert automatically lost his cab licence because Transport for London (TFL) operates a zero tolerance policy, and one cannot go behind the caution.
He instructed counsel on his TFL licence appeal, who tried his best with the magistrates (on the basis that he had had a strong defence to the taxi touting charge) but it was hopeless. He was stuck with the consequences of the caution, on which he had received inadequate advice.
As a result of that one piece of inadqeuate advice, Bert lost his livelihood and a job he loved.
The experienced barrister who told us this story also said:
I have dealt with clients given disastrous advice at police stations who then come and see me privately when it is often too late – the worst examples being the number of clients who have been told by a police rep (who has passed a few simple exams and is then able to advise vulnerable individuals in police stations which is terrifying) to accept cautions as it will then just “be over and done with” without thinking of the other consequences of a criminal conviction and when in the circumstances it is patently not right to accept the caution.
Access to justice means access to a motivated, qualified professional and competent lawyer: not some unqualified non-solicitor rep cadging around £80 a hit (after the firm has taken their fee) for police station work.
I should say that I don’t blame the rep or the firm at all but the increasing lack of quality control and the terrible fees that mean this sort of incompetence / “get ‘em in; get ‘em out” attitude becoming more frequent. It stems from a systemic lack of funding in the system.
Readers of my blogs will recall that the existence of this problem also featured in the oral evidence given to us by the London Criminal Courts’Solicitors’ Association:
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. 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.