I wrote to my MP, Patrick Mercer OBE MP, some time ago.
Yesterday I received what can only be regarded as a standard reply, trotting out all the usual stuff and not dealing with any of the specifics of what I said at all.
So I thought I’d have another go.
Dear Mr Mercer,
Many thanks for your letter of 13 May 2013. I have to confess to being rather disappointed with your reply. The reason for my disappointment is not so much that you did not agree with me, but more that having taken almost a month to respond you did not in fact address any of the specific issues I raised, and provided what I know is a standard response given by the Ministry of Justice.
Perhaps I am a little idealistic, but I believe that, although we have a system of party politics in this country, you are my local elected representative and should listen and respond to my individual concerns. What I raised with you was a matter of very great public importance, which is not being properly debated, but also something of very great personal importance which will affect quite a number of your constituents.
I will set out some additional thoughts below in a little more detail, but I wonder whether it would be possible to meet to discuss this? It is too important to leave to correspondence. I will be in London on 22 May and wonder if you might have time around lunchtime then?
You note that you agree with the Justice Secretary that we have an excellent tradition of legal aid and one of the best legal professions in the world. That rather begs the question why you propose to destroy it. You will not find a lawyer in the country, or indeed anyone who works within or is closely acquainted with the criminal justice system, who believes that anything resembling a high quality justice system will survive after these proposals have been implemented.
The quoted figure of £220 million for reduction has been arrived at arbitrarily, and has moreover been arrived at without regard to the extensive cuts already made in recent years. The MOJ itself is unable to say what the impact of previous cuts is, as the figures are not yet out. The consultation document itself is based on figures from 2010-2011, and leaves out of account both reductions in fees and reductions in volumes of work. The Legal Aid Authority (recently renamed and rebranded at, no doubt, enormous cost) has produced its annual figures for this year, suggesting that certainly £168 million has already been saved.
All lawyers could tell you ways in which money could be made or money could be saved. Michael Turner QC, Chair of the Criminal Bar Association, has a clear plan which would potentially make money for HM Government, but Mr Grayling refuses even to meet with him.
A clear example of waste within the system can be found in something which happened in my own professional practice just last week:
I undertook a trial at Lincoln Crown Court with a Lithuanian defendant accused of theft. The trial was capable of being dealt with in a single day, quite easily. The time estimate was known and the date had been set in November to allow a fixed hearing, bearing in mind the need for an interpreter.
However, on the first day of the trial we found we were listed behind another trial, which subsequently resolved by way of a guilty plea. My case did not get on until after 14:30 so by the end of the first day we were only part way through the prosecution evidence. The interpreter, paid by the minute, and myself, on a graduated fee, spent most of this day waiting for our case to get on. Had the case started at 10:00 promptly we would have reached the same point by about 12:00 noon as we had reached by the end of the day.
On the second day it became apparent that, although I had by 13:00 the previous day asked Listing to ensure an interpreter would be booked for the unexpected second day, no interpreter was available. The newly contracted interpreting service had failed to find anyone available to cover the hearing and the interpreter used the previous day was committed to a prior booking in Wales. All involved in the case waited until 11:30 to see whether someone could be located, but in the event it was not possible. The case was therefore adjourned until the following day. My time, the prosecutor’s time, the jury’s time, and the court’s time was entirely wasted. The Judge had a list of other work to do but that was not scheduled even to start until 12:00 noon because our trial had been put in that slot. Incidentally, as a result of the previous fee cuts I received no additional payment for this second day.
On the third day we did not get a clean start because the interpreter did not arrive until 10:20, but once we managed to get going we were able to get the jury out by 12:00 noon, and at 14:08 they returned and unanimously found my client Not Guilty of both counts on the indictment. Under the fee structure there was a modest additional payment for the third day in court.
Thus, because (a) the court had in its wisdom listed this case behind another, (b) had not booked an interpreter in the event the case overran its slot, and (c) because no interpreter was available for the second day, a case which could easily have been dealt with in the space of a single day took three days to complete. Many hours were wasted, I spent a day entirely unpaid in which judge and jury simply sat and twiddled their thumbs, and then the legal aid bill was increased by a modest amount on the third day. None of this was the fault of the defendant or his legal team.
This is, of course, a single example from a single small court and the diary of one single advocate. I know that my professional colleagues would be able to tell many, many similar tales.
The system we have is full of waste from top to bottom. There is inefficiency all over the place, and the lawyers know how to reduce or extinguish it.
It is therefore a great pity that in preparing this consultation document not one single lawyer was asked for their views on how to reduce the cost of criminal justice. No-one was ever asked how things might be improved. There is no qualified lawyer or experienced criminal justice practitioner in the policy team which created the consultation paper. We know that is the case because the question has been asked and answered at the recent meetings with the MOJ.
There are ways, too, for the system to make money. It would be perfectly possible, for example, to introduce a banking fraud levy, to make the financial institutions pay for the cost of cases emanating from their leaky and insecure systems. Large-scale financial fraud and insider trading cases make up a very large proportion of the legal aid bill, yet the banks pay not a single penny towards the cost of dealing with these matters. Such cases could have been avoided if the banks had installed adequate security in the first place.
Deferred Prosecution Agreements will in due course address some of these issues, but although they will reduce the legal aid bill it seems likely that Ministers will simply bank those savings but persist in reducing the service which is available for the rest of the population.
Aside from this, there has been no calculation of the overall impact on the public finances of these changes. MOJ does not know how many people are likely to be made redundant, how many people will have to claim benefits, how many businesses will become insolvent, how many firms will have to be intervened in by the Law Society at great cost to the others, how many other services will become unviable because the solicitors who purchased them have disappeared. There has been no analysis of this and MOJ have confirmed as such in a recent FOI question I asked.
I can say that just from our firm 50 people would be made redundant and three partners might well become insolvent. The leases on three buildings would be defaulted on. Services in family law, conveyancing, private client (wills and probate) and general civil law would be lost as well as those in crime. Something like £2.5 million (for the avoidance of doubt, not just legal aid revenue) would vanish from the local economy with corresponding loss of tax revenue and local spending power. Choice of supplier would be lessened for the people of Grantham, Newark and Lincoln. In Newark I can say with certainty that no firm would remain which would offer criminal legal aid services.
These sorts of issues would have to be multiplied across at least another 1,200 firms.
The policy is therefore horrifically short-sighted. A headline saving of £220 million is very much less as a net saving when you take into account lost tax revenues, increased benefit payments, additional costs of introducing the scheme, administering insolvency via the Official Receiver… the list goes on. If the deficit is to be reduced the Government needs to start thinking holistically and examining knock-on effects in other budgets. No household could work in the way that HMG does without becoming insolvent very quickly indeed.
I am concerned too, for the administration of justice. You may not be familiar with the detail of the consultation paper. Indeed, Mr Grayling showed himself to be unfamiliar in a meeting with lawyers earlier this week. The proposals, in a nutshell, do this:
a) Reduce the number of providers from a present figure of approximately 1,600 to an absolute maximum of 400. It is accepted by MOJ that it is possible there could be as few as 38. Bearing in mind that some providers will bid in more than one area, or even nationwide, the number of solicitors firms which will close is at least 1,200 and probably more like 1,400. MOJ does not know the number of redundancies but I would hazard a guess at around 15,000;
b) Deprive legal aid defendants of any choice in their representation. They will be allocated to a solicitor against their will and only be able to change solicitor in exceptional circumstances;
c) There will be a limited number of providers in given geographical areas. In Lincolnshire there will be four, in Nottinghamshire six. My work is primarily in Lincolnshire and I can say there are about 14 firms doing criminal legal aid work. 10 of them will no longer be able to do so. There are more firms in Nottinghamshire and the majority will lose their contract. There will be no firm in Newark providing this service as none are large enough.
d) Each provider will get a fixed market share. In other words, in Nottinghamshire each provider gets one sixth of the work, allocated to them by strict rotation and without regard for the interests or needs of the client.
e) Providers are chosen by price competitive tendering. After fairly basic quality and delivery criteria, contracts will be allocated to the lowest bidders, with a ceiling price of 17.5% below the 2013 fee level. This is a race to the bottom.
The biggest concern must be for quality. At present we have a free market in which defendants can choose their solicitor. Some are randomly allocated to a duty solicitor, others come by recommendation, some are repeat clients. Those firms which provide a good or high quality of service expand, those which do not tend to remain small. Some firms have developed expertise, for example in animal or firearms law. A number have expertise in a sector close to your own heart, the Courts Martial.
The market ensures quality services. By and large we work hard to provide a good service, often working far more hours than we are paid for. It is not unknown for me to be in the office at 3:00am finishing a written document for the court, or honing a closing speech or cross-examination. I am not paid extra for doing so – the fee is fixed by length of trial and other factors, not by how many hours I do.
I would ask you to bear in mind that defendants are exactly that – they are entitled to be regarded as innocent until proven guilty, so they are not “criminals” as Mr Grayling has previously referred to them. I have represented taxi drivers accused of sexual assault after passengers have refused to pay the fare, a businessman who sacked a fraudulent employee and was then accused of assault, husbands accused of domestic violence to support a child custody case – all of these people rightly acquitted, and all entitled to decent representation.
My concern for the clients is that once providers have been guaranteed a fixed and immovable share of the market – which can’t be expanded by good service or contracted by poor service – and have also bid the lowest fixed price for the work, the commercial imperative is bound to be to reduce services. Quality will inevitably suffer, and we will move to a privatized version of the US Public Defender service, where overworked and underpaid lawyers, often with 600 or more cases to look after, have been known to spend as little as seven minutes per case.
This problem is compounded by the fixing of fees. Where presently there is a different fee for a guilty plea, a cracked trial (one which is prepared for trial but resolves either because the defendant changes their mind, or because the prosecution drop the case), or a trial, the proposal is that the fees will be harmonized. If there is no difference between the fee for a plea and a fee for a trial, what commercial justification can there ever be for the extra work involved in preparing a case for trial? And if a trial is going to happen, what incentive is there to do a proper job and not just a cursory one?
The MOJ says that it wants to “incentivize guilty pleas” and “streamline the system”. Does it really suggest that professionals bound by a code of conduct up and down the country are advising people to have trials they should not have in order to increase the fee? If it does think that it is both entirely wrong and horrifically insulting. Every day of my professional life I find myself advising clients that they should plead guilty, even where that is directly against my own interests. And every day I have clients who do not wish to accept the advice and want a trial. That is their right and the right of everyone in a free system.
It should be added that in quite a few cases where I have initially advised there ought to be a plea of guilty, on closer examination after disclosure, or at trial, the evidence turns out not to be as first thought and people have been acquitted. They were right in their instinct all along.
Most importantly, if we are to remain free it must be the choice of the defendant. Yet the risk of these proposals is that there will be those who are forced into pleading guilty when they did not wish to. The most likely to suffer from that are those who are inexperienced or vulnerable. Some of these cases will be miscarriages of justice.
There will be an additional systemic effect. At present cases are, by and large, prepared properly. This means that the issues are properly identified prior to the trial, the correct evidence called, and so on. If there comes a time in which this is no longer the situation, trials will more routinely have to be abandoned, adjourned or will become longer. Miscarriages of justice or appeals will also increase. There may be an increased conviction rate, not necessarily rightly, and that may have a prison cost too.
Much good is done in the system by the goodwill of lawyers. Barristers like myself, especially during trials, do much unpaid work outside of court hours. If witness statements need editing, interviews need to be agreed, or legal arguments prepared, that is done during the evening and at weekends. In the trial I did last week I rose at 4am one day to finish my speech. I spent Friday night reading the papers for my case on Monday, Saturday night reading and editing proposed agreed facts from the prosecutor, and Monday night reading proposed interview edits from the same prosecutor. He had spent his evenings preparing them, as had I. The result was that the case could go on without delay. Bearing in mind this was the tragic case of Peter Thurgarland, which you have probably seen in the local news, that must surely be in the best interests of his family, who had suffered enough.
It is unlikely to be the case under the new regime that so many lawyers will give so much of their own time. My family undoubtedly suffers because I do, but under the new system could I ever justify that?
It should be recognized that the unpaid and out of hours work of lawyers contributes greatly to the smooth running of the court system. If it were to be removed the system would grind to a halt, and that would surely happen when G4S, Serco and others are running it. That again has a cost.
There are other effects too. Presently we have many experienced criminal lawyers. I have worked my way up from the bottom of the profession over the last 16 years. Having graduated from University I worked as an outdoor clerk, sitting behind counsel in the courts of London. Then I qualified to give advice in police stations. After that I undertook Magistrates’ Court case preparation, and later Crown Court case preparation. During those latter stages I continued working in police stations out of hours, and studied part-time, firstly towards the Postgraduate Diploma in Law, and later towards the (then) Bar Vocational Course. After four years of part-time study I was called to the bar, and then spent a year in pupillage, during which time I lived away from my family during the week. I am now approaching eight years’ call.
Many lawyers in criminal firms have a great deal of experience. We understand the criminal law and procedure, but also understand our clients and their cases. Criminal practice is as much about people as it is about the law, and the skills developed in years spent advising in the police station in the middle of the night pay off when advising difficult clients about their options.
An experienced and trusted lawyer can give unpalatable advice to implacable individuals in a way that inexperienced or untrusted lawyers cannot. Many needless trials are avoided this way.
The new system will destroy this on both levels. The new providers will not need to retain expensive duty solicitors and their need for efficiency and keeping the cost base down will mean that they will make all their expensive senior staff redundant, and hire only the cheapest inexperienced junior lawyers. If a job can be done by unqualified paralegals it will be. If work can be done by agency or temp staff rather than employees then that will be the preference. All those lifetimes of experience, knowledge and skills will be lost, and the best students will no longer consider coming into criminal law. Very few criminal firms or sets of chambers will be offering criminal training contracts or pupillages this year or next.
The other way in which damage is done is through the deprivation of choice. I have clients that my firm has represented for years, and in some cases where we represented their parents too. Of course it would be better if they stopped offending, but on the assumption that this is wishful thinking it is necessary to consider what will happen. At present these, often difficult, clients will accept our advice on trust because we are their solicitor. If we tell them the evidence justifies a plea they will usually accept that advice. In this way the work of the court is facilitated and justice runs more smoothly. Will that be the same if they are required to go somewhere else, perhaps to G4S or Eddie Stobart, and represented by an inexperienced solicitor who meets them for the first time at court?
A word about the Courts Martial. Presently most armed forces defendants are defended by a civilian lawyer allocated and paid by the AFCLAA. There are some firms with a niche speciality in this area, and they greatly assist the Judge Advocates in running the Courts because they know what is expected and they are also familiar with the necessary procedures. Many of those firms will cease to exist under these proposals and it is certain that the new providers will not provide the same level of service.
I myself appeared at the Catterick Court Martial Centre last year, representing a Guardsman accused of fraud. I was able to advise him to plead guilty, which he did, and our work saved his career because he was sent to Colchester with the Judge Advocate’s recommendation that in view of his excellent active service record he should be put on the NCO Cadre.
I had not previously appeared at such a court. I bought, at my own expense, the main book on the subject, by JAG Rant, and I downloaded and considered all of the procedural guides. I taught myself all the relevant traditions and procedures in order to be able to do a good job for my client. All of that was unpaid and additional. Again, is that likely under the new regime? I very much doubt it.
I should add that although I have focused in this letter on solicitors, the proposals will destroy the Bar too. There will be almost no work left for them to do when the new providers are required to do all their advocacy work in-house to even scrape a profit.
I appreciate that MOJ feels that the market is presently inefficient. I do not see why that justifies these changes, because any inefficiency in the market is a problem for us rather than MOJ. It does not affect the legal aid bill, which is dictated by the number and nature of cases rather than how we structure our businesses. If there is inefficiency then in due course the market will sort it out, while retaining quality and our system’s reputation. Interference by the state in this market, to remove quality, to deprive defendants of choice, to create a two tier system where poor defendants have no real representation and wealthy defendants get a gold service, is wholly destructive and unjustified, and moreover seems to me to be anathema to traditional Conservative ideology.
Our justice system is a valuable thing, developed over hundreds of years, and admired the world over. Our criminal lawyers are respected worldwide. Our courts are seen as fair. Our judges are seen as impartial and able. If these proposals are implemented this will no longer be the case.
I can say that in my time in the profession I have never seen our professions so united in opposition to Government proposals. If MOJ had asked before producing these ideas we would have told them that they will not work, and you risk total system collapse. We would have been willing, and still are willing, to give you ideas of where to save money and where to make it. If we worked together we could secure the safety of the system for future generations, and be a beacon of hope for justice throughout the World. But we cannot do that while the Government holds a gun to our heads and threatens to destroy everything we strive for every day.
One last thing. These are proposals of the utmost significance. It is absolutely not acceptable for them to be implemented by secondary legislation without so much as a vote in the House. I believe in parliamentary democracy and open debate. The Government should propose this by way of an Act of Parliament so that there is full and proper scrutiny. To cut Parliament out and to enact changes as important as this without any debate is utterly undemocratic and wrong.
I again urge you to consider looking at my blog on these issues, www.barrister999.wordpress.com, and also at one produced by an anonymous barrister’s wife, www.abarristerswife.wordpress.com.
I therefore hope that you will reconsider whether you will engage in debate about these proposals, and will not simply accept what the MOJ says in its standard letter.
I would be delighted to discuss with you and deal with any questions you may have. I know other lawyers in Newark would too. Please just let me know when.
Many thanks for your assistance.