The Consumer Paradox in Criminal Legal Aid

The aim of this blog is to highlight the paradox which prevents a very significant group of consumers of government funded criminal legal aid services from choosing the client/solicitor relationship they do want and from escaping one they do not want.

This is best illustrated by a simple example:

Mr D is arrested for murder. He is taken to a police station where his “rights” are delivered by the Custody Sargent and which include the right to legal representation.

If he knows a Solicitor and asks for them, the Duty Solicitor Call Centre (DSCC) is informed. This is confusing as in this instance he is an “own” client not accessing a solicitor through the “Duty Scheme”. His solicitor is informed and if he is willing to be instructed attends. Private paying clients are also “channelled” through the DSCC.

However, Mr D may not know a solicitor and he is asked “Would you like the Duty Solicitor?”. He answers “Yes please” and whoever is on a rota for that police station as a firm will allocate someone from the firm or a freelance agent to attend.

Mr D has never met this person before who proceeds to give him advice and sits through the interview’(s) and that firm has now become his solicitor by default.

What happens next is at heart of the paradox.

Scenario 1

Mr D is bailed to return to the police station at a future date. Mr D is a consumer and now turns his attention to the question, have I got the right solicitor for a possible charge of murder

How does a person choose? There are multiple factors in play. Word of mouth recommendation is particularly powerful if the person doing the recommending has had, or has a close knowledge of, a similar case and can talk meaningfully about the relationship and how the work was done. Legal directories like Chambers and Legal 500 are useful guides. A search online using key words may assist.

It is to be noted that a similar process applies to choice of Crown Court advocate but with the addition of a powerful recommender namely the solicitor, who may or may not recommend an in-house advocate or a member of the independent bar.

We are all consumers. There is endless regulatory effort in many markets to try and ensure quality of service, common standards and above all competition so that consumers can make “best” and informed choices.

How does competition work in Criminal Defence?

It is not by a price as that is predetermined by Litigator and Advocate fee schemes. It is at best by reputation which is hard earned by persistently providing quality and receiving word of mouth recommendations or online testimonials or ratings from peers.

The Duty Solicitor scheme militates against reputation being a driver of client/ solicitor relationship because the “work” is a gift by a rota presence. Contracting of Duty Schemes into the hands of fewer suppliers would mean the gift is enhanced. With high volumes of gifted cases there will be little incentive for contractors to work at providing quality as the contract is for years and its terms are an incentive to provide service at the lowest possible cost and at the cost of quality many have argued.

So where does all this leave our consumer Mr D facing a murder charge?

If he/ she was bailed to return to the police station while the investigation unfolds, the answer is in a reasonable place. If content with the service the “Duty” provided he/ she can choose to remain with that firm.

But if not it is a simple matter to change solicitors. Do the research, ask around, seek out what is perceived to be a better relationship or legal provider. Go and see that firm and solicitor and make a considered and informed choice. Provide a form of authority to the new solicitor for the release of his papers to the new solicitors and hey presto the murder case is in new hands.

Scenario 2

But if Mr D is charged (a much more serious position obviously and he is almost certainly in custody) with murder it is not enough for him and his family to do their “Due diligence” research and conclude that he doesn’t have the lawyer he wants and the current one is not the one who he or she would choose.

This is because Mr D is suddenly amazed and surprised (and this is very common) to find that the Duty Firm has applied for and received legal aid in the form of a representation order covering the proceedings. He signed some forms of application with little appreciation of either what they were or the consequences. Suddenly he is confronted with having to bring himself within the Legal Services Act 2007 and in particular the Criminal Legal Aid “Determinations by a Court and Choice of Legal Representative” Regulations 2013 and the Criminal Procedure rules, para 46.3.

He also discovers that the Duty firm have no intention of letting him, “a valuable case”, go.

At this stage he is in short not a consumer but a Duty scheme prisoner in two senses, to HMP and his legally aided Duty Solicitor lawyer.

This is because regulations governing transfer post charge are strict and difficult. He must show that there has been a “breakdown in the relationship” between himself and those duty solicitors or that there is some other “compelling reason”. Generally wanting another solicitor who he has good reason to believe is “better” is not a compelling reason. This is extraordinary in the general world of consumers where better is of course the principle guide to the consumption of services.

So here we have the paradox. The more serious the defendant’s position i.e. charge, the more difficult to exercise any consumer right.

How might it be solved?

It is common place now for consumers to be protected. When representation was not by a Solicitor of choice but by a duty Solicitor, a standard notice could be issued with with the representation order giving the consumer a “cooling off” period and a right to change, perhaps 14 days if on bail, 28 if in custody.

Defendants could be warned that strict time limits apply and that there are very difficult conditions, as above, to be fulfilled if they wish to make any further change. They should be told their choice of legal representative is a very important matter and one which they should consider carefully. They might be very happy with their choice of lawyer but if not they have the right to ask for a change.

Conclusion

The suggestion is that the current paradox is not logical or sensible and that if consumer rights are to mean anything in this area of legal services the equivalent of a “cooling off” period and a right to change are very necessary reforms.

Incidentally such reforms might save a great deal of time and expense further down the line as currently Judges, Courts, Solicitors and Counsel expend a great deal of heat and often not much light in very unsatisfactory contests over the right of a Defendant to choose.

Greg Powell

5 January 2016

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