A response to the Criminal Legal Aid Review

by | Jun 1, 2021 | Uncategorized

The market

  1. The Terms of Reference (para 7) distinguishes the ‘market’ (defined as the body of private actors who provide Criminal legal aid services including both individuals and firms), and the ‘Criminal Legal Aid System’ which refers to ‘the Market the Government processes and organisations use to procure, administer and remunerate those providers in the public interest’, and places both within the context of two ultimate objectives to provide legal advice and representation to those who most need it and to uphold and ensure the constitutional right to access to justice.
  • Further, in a section on transparency, the question is posed of how the LAA could make ‘informed purchasing decisions’, 14.b, and at 15.6, the review will consider the number and mix of firms (size, specialisation and geographical distribution), which would provide the highest standard service provision and whether there is anything the Government can do to encourage this mix.
  • And further whether the uptake by providers of alternative business models might improve Market resilience. Other public service markets are also frequently mentioned as offering comparisons re average profit margins, hourly rates of pay and their mechanisms for introducing competition.
  • There is a sop to consumer choice conflating defendants and Government (in its capacity as purchaser) being empowered to make more informed choices. The review seeks also to distinguish its own scope and terms from previous Reviews (para 6), characterising Carter (2006) as relating to the reform of the approach to procuring Legal Aid Services and the Jeffrey Review (2014) to advocacy. Boldly, going where no Review has gone before , it is declared that this Review is more ambitious in scope, aiming to assess the entire Criminal Legal Aid System.

Is this approach to the ‘Market’ misconceived?

  • The starting point appears to be a determination to ignore the strength and resilience of the market that actually exists. The ‘Market’ in the first sense of the body of actors, individuals and firms who provide Legal Aid has proved amazingly adaptable and resilient. Legal Aid is a sector which has defied the gravity of 25 years fee erosion by both inflation and actual intentional cuts, and it is worth pausing to ask how has it been possible in these circumstances to continue to provide legal advice and representation to those who need it and ensure the constitutional right to access to justice?
  • The answer lies in understanding how this sector of the Market evolved and despite significant external constraints, works. In the beginning all that a firm of Solicitors needed to provide and be paid for legally aided work was an account number with The Law Society who administered the Fund and acted as the cashier. Several thousand firms in what was then (1960s) chose to provide legally aided services as a small addition to commercial, private practice.
  • The expansion of funding and scope in the undifferentiated Legal Aid Market led to pressures on its administration sufficient to bring into its existence the Legal Aid Board which saw it remit as one extending beyond the cashier role into policy making and ultimately the imposition of contracting.
  • However, the market was relatively ‘free’ and its dominant characteristics have remained unchanged, namely it is self-capitalising and ‘success’ depends on reputation which in turn drives quality. This is worth reflecting upon. Entrepreneurial Solicitors have a far better knowledge of the market than any other actor. This is because they know areas intimately ,  its ‘pockets’ of deprivation, the services/firms that already exist and therefore work out where a new office can fill a gap and be attractive to those who need Legal Aid.
  • Those Solicitors then provide their own capital to fund premises, overheads and staff costs. This is the critical way in which a free market operates. Some firms thrive other do not. This very much depends on the talent of the individuals as well as having selected the right market opportunity/location. Everything depends on reputation and that drives the service level as well as the commitment and willingness to work long hours in building a business. The market effectively establishes through these mechanisms the appropriate ‘mix’ of firms to meet need.
  1. The elements of market failure which have been widely recognised and impelled the Review, the aging profile of defence lawyers, problems of recruitment and advice deserts in civil work have been driven entirely by the funding failure combined with the rigidity of the market. The latter has been caused by a contracting mechanism which allows new entrants only at a new start point in the contracting cycle, about 5 years ,    while simultaneously leaving an axe poised over the heads of successful contractors in the form of fixed term contracts. Ever decreasing hourly rates that were long ago divorced from the private sector and uncertain career prospects have propelled talent, young and old, away from both the Solicitors profession and the Bar.

Covid

  1. Covid has been a disaster in terms of cash flow in criminal cases, with both a fall in volume as arrests/ charge rates have fallen and an extreme bottleneck restricting cases coming to trial on the back of what was already an underfunded Court service .Nevertheless, with Government support in furlough, bounce back loans and part time working, and temporary VAT relief for one quarter, most have weathered the storm. How many will actually survive once VAT and debt becomes repayable and support withdrawn is an open question. The endless succession of cuts to rates having left the sector vulnerable to financial shock.

The purchasing market

  1. This ‘Market’ is not a market at all, but an entirely artificial contracting process run by a monopoly purchaser. There is no offer and acceptance in any real sense. It is a take it or leave it proposition and for providers each round of contracting an existential moment of life or death for their business.
  1. It is not equivalent to any other public sector market. There are no multiple opportunities to contract. It has no similarity to the external providers to the NHS or for providers who are contracting with multiple authorities in multiple locations.
  1. The price for Legal Aid work is set by the MOJ/Treasury relationship. Attempts at ‘competition’ or arranging bidding for work were a disaster. The existential nature of the bid means that everyone bids the ‘floor’ or lowest price.

What can be learned from past ‘reform’?

Payment structure

  1. Traditionally, Solicitors have been paid for the time spent ‘reasonably, actually and necessarily’ on the matter. Private firm rates can be calculated by a formula which contains an assumption about salaries and divides total overheads/expenses attributable to a Solicitor by a number of chargeable hours per year, usually 1,200. The answer is an hourly rate.
  1. Private and Legal Aid rates bore some resemblance in the 1970/80s when firms were commonly engaged in both Legal Aid and commercial work. Using the justification of certainty of payment as an excuse there was an erosion of rates particularly in the era of high interest rates and inflation but there continued to be inflation linked rises until the mid-1990s.
  1. Thereafter is a tale of woe. The budget of the MOJ increased as expenditure was driven by increasing volume of cases. Outrageously, the Government adopted a false narrative that Legal Aid expenditure was ‘out of control’ with an insidious commentary that this was in some way the fault of suppliers. The upshot was the Carter Review. This was an attempt at market intervention based on a notion of economy of scale. That lower rates could be justified by an increase in volume for smaller numbers of firms. It was a failure, and its only achievement was to provide cover for a huge cut in fees while alienating the supplier base who correctly understood the attempt to cull the vast majority of firms.
  1. There is a lack of institutional memory which underlies repeated attempts to fix the mix of firms in back of the envelope schemes that come tagged with labels like ‘better value’, ‘efficiency’, ‘innovation or ‘competition’. What never appears is any recognition of the strengths of the open market or indeed any justification for the necessity of reform which recognises the reality that Legal Aid is a demand led system but also, profoundly under-funded. In the midst of the billions spent during COVID it is worth noting that nothing has been directed towards the CJS or the constitutional right to access to justice.

Diversity

  1. The Legal Aid market, independent actors and firms, has been a remarkable success in becoming easily the most diverse sector of the legal profession. This has not been as a result of any Government policy but as a consequence of an open market. Entrepreneurial Solicitors who are not white could with relatively small capital establish businesses often in communities of similar historical ethnic heritage, not only creating diversity in the Solicitor’s profession but also helping access to justice. It is also a feature of firms in major conurbations that the workforce is also often highly diverse.

Independence

  • There was another unintended consequence also of great importance, the creation of a numerous independent legal profession (Solicitor’s firms committed to Legal Aid work and their mirror image in Barrister’s chambers) with an orientation to access to justice rather than an ambition to be an adjunct to commercial activity. There in lies the enormous value of Legal Aid expenditure in relation to justice as a cultural and actual good.

Justice

  • A great deal is written about social exclusion and poverty. At its heart Legal Aid is the practical process which supports a meaningful relationship between a person and the Legal System and provides substance to the otherwise vague notion a person has of what is meant by justice. It could be characterised as a cultural glue, or in the current political jargon a contributor to ‘levelling up’ as it produces a fundamental sense of fairness in legal process and of equality before the law no matter that there are other very obvious inequalities.
  • As ever, what is not addressed is the vast amount of unmet need, cuts in civil Legal Aid have enormously diminished the fundamental notion that every citizen can have access to justice. Lack of access has become invisible as millions of cases involving crucial matters in the lives of individuals and their families (the other actors in the civil and criminal market) are not addressed at all; disrepair, problems accessing welfare benefits, debt, loss of employment and discrimination and often access to one’s own children fall by the wayside due to cuts in provision.
  • The economic benefits when Legal Aid is available are obvious but unaccounted for. Successful appeals of benefits improve the material circumstances and health of a family. Preventing a school exclusion has profound consequences as does a successful immigration application. Keeping contact between a father and his child may be of inestimable value to mental health, future relationships and better life outcomes. There is a hard economic case for Legal Aid which is rarely mentioned as well as the enduring effect of people feeling that they are not excluded or abandoned but have received justice. In criminal defence, it is ensuring that the defendant’s narrative is heard, the prosecution evidence is tested in a fair trial and people acquitted. Others may receive rehabilitative sentences that help keep families together as a result of the efforts of defence lawyers. It is important that the vast majority of defendants do emerge from court believing that they have been dealt with fairly.
  • It is always announced, as here, that civil Legal Aid is beyond the scope of the Review. The continued divorce of civil and crime renders all Reviews partial, lopsided, and diminished. It is the same community that produces cases across all overlapping dimensions,  welfare benefits, criminal allegations, housing problems, family law, immigration, mental health and so on. Integrated services provided by incentivised Legal Aid firms and Counsel who are properly remunerated should be the object of policy.

Funding & the future

  • Legal Aid is a flea bite of total Government expenditure. In the pie charts and analysis by commentators post-Budgets, Legal Aid does not figure as it is too small and insignificant. Some estimate that with COVID total government expenditure may be approaching may be approaching one trillion pounds, legal aid in essence needs one billion pounds extra to double its Budget and restore a proper scale of service.
  • The answer to having a mix of firms that meets need is to fund the Legal Aid System properly, an extra one billion pounds should be the starting point for a plan of what could be achieved in levelling up justice with all its consequent economic benefits. A simple first step towards a better system would be to abolish fixed term contracts and make then open ended and to allow firms to enter at any time through a Quality Mark Assessment process. The Budget needs protection from inflation and recognition that electronic evidence is a cost driver demanding a commitment to extend funding to all parties as a cost of the proliferation of electronic services .Given the vast profits of the providers of those services the solution of a tax or levy to fund the issues created in the CJS ought to be obvious .
  • A stimulated market with career and entrepreneurial prospects will attract talent, be diverse and competition will drive quality. It needs the political will to put the funding in place. Other solutions that aim to fix the mix or engineer solutions will go the way of their predecessors (price competitive tendering, VHCC bidding, best value tendering, ideas to eliminate client choice, fixing historical quotas of cases, determining case allocation alphabetically or my date of birth, preferred partner status and so much more) into the black hole of reform, so much flotsam and jetsam, heat and darkness generated to cloak 25 years of austerity.

Will CLAR do any better?

One fears that given the terms of reference it will not.

Greg Powell

Acquitted of Murder following 3 month COVID trial

by | Apr 14, 2021 | Uncategorized

Acquitted of Murder following 3 month COVID trial

Powell Spencer & Partners client, represented by Sinead Zaman and Ali Bajwa QC and Christian Wasunna, members of the Garden Court Chambers Criminal Defence Team, represented Mr C, at the relevant time a 27 year old man in a five-defendant murder trial at Woolwich Crown Court. 

The case concerned the fatal shooting in Hoddesdon on 4 December 2018, who was said to be in a feud with another group. The prosecution alleged that Mr C was a member of the masked group that attended the Hoddesdon address and shot a man in the face with a shotgun before being sped away in a waiting vehicle.

Mr C denied being present at the scene of the murder. The case against him turned on complex telephone evidence, scientific evidence of gunshot residue particles recovered from his motor vehicle and his association with the main defendant on the day in question, including driving that defendant and another co-defendant to his own home almost immediately after the shooting took place.

Following a trial that lasted over 3 months, the jury convicted three other defendants of murder but Mr C was cleared of all charges, including murder, manslaughter and assisting an offender.

Domestic Abuse and Injunctions

by | Jun 16, 2020 | Uncategorized

 

What is domestic abuse?

Domestic abuse can consist of an incident or an ongoing pattern of incidents consisting of but not limited to:

• Coercive control (a pattern of intimidation, degradation, isolation and control with the use or threat of physical or sexual violence)

• Psychological and/or emotional abuse

• Physical or sexual abuse

• Financial or economic abuse

• Harassment and stalking

• Online or digital abuse

It is often an attempt by one person to dominate and control the other.  An abuser can use various methods such as shame, guilt, intimidation and fear. 

Abuse is often by a partner or previous partner but can be from other family members or a carer.  

Although women are more likely than men to experience domestic abuse, men are sometimes also victims of abuse, especially verbal and emotional.  

Any individual can experience abuse, regardless of their background (race, ethnic, religious group, sexuality, class or disability) but some face barriers in seeking help.  Regardless of the circumstances, domestic abuse is never acceptable.  

Abuse can often escalate from threats into violence.  Whilst physical abuse is dangerous, the emotional and psychological impact of domestic abuse is harmful.  It can make a person feel anxious, question their self-worth and can lead to depression.  

As solicitors, we can advise you on obtaining an injunction – a legal order – to protect you.  We give more explanation below. 

 In summary there are 2 types of order: – a non molestation order forbidding the perpetrator from assaulting, harassing, pestering you or coming/remaining in your property.  If the perpetrator has a legal right to live in your property (i.e. if he is a tenant /joint tenant or owner/joint owner, then we can apply for an occupation order suspending those rights, to make him leave the property.   If you have concerns that the perpetrator may try to take the children, we can also apply for a prohibited steps order to stop him removing the children from you.   

 During the current Lockdown,  we can grant you Emergency Legal Aid via phone and email, and we can apply for an injunction by a phone court hearing. :- 

What can I do?

You do not have to wait for an emergency situation before seeking help.  If you feel that domestic abuse is happening to you, it is important to tell someone and remember you are not alone.  

Women’s Aid, a charity that helps and campaigns for victims of domestic abuse, advise as follows 

• Try to keep your mobile phone on you at all times. Try to make sure your mobile phone is charged

.• Family, friends and neighbours can support you

.• Can you safely keep in touch with people you trust over the phone or online? This could be a friend, family member, neighbour, carer, or support worker. You can use the opportunities when you can leave the house to make these calls e.g. when you go to the supermarket.

• Can you talk to them about what you are experiencing?

• Can you have a code word with a trusted person that lets them know it is not safe to talk or to ask them to phone the police?

• Could you agree a regular time and day for them to check-in?

• Let them know if there are safe times to call you

• Get familiar with how to delete messages quickly. If the abuser is monitoring your phone – delete your messages or call records afterwards. You can also try apps that allow for more secrecy. For example, Telegram and Signal

• The police are a key service when in immediate danger. Do not be afraid to call 999 in an emergency

• Silent Solution: When you call 999, the operator (the person on the phone) will ask which emergency service is required. Listen to the questions from the 999 operator. If you cannot say ‘police’ or ‘ambulance’, respond by coughing or tapping the handset if you can. If prompted, press 55 on your phone. This lets the 999 call operator know it’s an emergency and that you aren’t safe to speak. Click here to find out more.

• Emergency text service: If you can’t call because you are d/Deaf or can’t verbally communicate, you can register with the police text service. Text REGISTER to 999. You will get a text which tells you what to do next. Do this when it is safe so you can text when you are in danger. Click here to find out more.

• Reporting a crime: If you need to report a crime but you are not in immediate danger, you can call the police on 101 or report online. The police have a duty to protect you and your children. You should not be discriminated against for any reason, including your immigration status. 

Can I get an injunction?

There are two types of injunctions available under the Family Law Act 1996:

1. Non Molestation Order

This protects you and your child(ren) from being harmed or threatened by the person who has abused you. 

The person you want to be protected from may be:

a) Someone you are in or had a relationship with

b) A family member c) Someone you are living with or have lived with

Non Molestation Orders are normally for a fixed period of time, such as 6 months but can be renewed.  There is no limit on the length of time that non molestation orders can be extended to. 

The person named in a Non Molestation Order can be arrested if they breach the Order and you should contact the Police immediately.  The Police should arrest the abuser and bring him back before the Court within 24 hours.  It is a criminal offence to breach a non-molestation order.    

2. Occupation Order 

This decides who can live in the family home or enter the surrounding area. 

The person you want to be protected from may be:

a) You own or rent the home and it is/was intended to be shared with you husband or wife, civil partner, cohabitant, family member, person you’re engaged to or parent of your child husband or wife, civil partner, cohabitant, family member, person you’re engaged to or parent of your child

b) You do own or rent the home but are married or in a civil partnership with owner and you are living in the home 

c) Your former husband, wife or civil partner is the owner or tenant and the home was/is intended to be your shared homed) The person you lived with is the owner or tenant and the home was intended to be shared

The Court will apply a ‘balance of harm’ test when deciding whether to make an Order.  When making an Order, the Court may make other related orders imposing obligations or the other person, for example to repair or maintain the home or payment rent or mortgage.  

Occupation orders can only be extended beyond 12 months if you have a legal right to stay in the home, for example as owner/co-owner, tenant/joint tenant or you have been married to the owner/tenant.  

A ‘power of arrest’ may be required to be attached to the Order, particularly if the abuser has used or threatened violence and this is accepted by the Court.  If there is no power of arrest, then you will need to go back to Court for disobeying the Court Order. The Court may fine the abuser, impose a suspended sentence or commit to presence.  

If you need to be protected immediately, you may be able to ask for an emergency order.  You do not need to tell the person from whom you are seeking protection from that you are applying for an order and this is called a ‘without notice’ or ‘ex-parte’ application.  The person will need to be notified after the hearing that an order has been made and the Court will list another hearing to consider this further or dismiss the application.  

To obtain an injunction, you will need to apply to the Court with a completed application and a sworn statement supporting your application.  

What about coronavirus (COVID-19)?

If you are the victim of domestic abuse and you want to leave your home to stay with someone else, you are entitled to do this during Lockdown.  If you have nowhere to stay, you can apply for emergency housing, although this sometimes can take time, so you may need to stay with a friend or family initially. 

The Courts are currently able to accommodate remote hearings either by the telephone or video call and will consider face-to-face hearings if necessary.  

Do you need to talk to a family law professional?

Our Solicitors at Powell Spencer recognise the seriousness of domestic abuse and can help you make the necessary applications.  Our experienced and qualified Solicitors, many of whom are accredited specialists, have the knowledge and experience to handle your case and put your safety first. 

Legal aid is usually available and we can assess you at the initial appointment.  We also offer tailored and fixed fee services dependant on your needs.

Contact us today.

Protecting clients and staff in the pandemic

by | Mar 22, 2020 | Uncategorized

Protecting clients and staff in the pandemic

We have taken the decision that in the midst of this pandemic we will as a firm withdraw from all face to face client contact.

This includes all police station attendances, magistrates’ court attendances, crown court attendances and prison visits.

The office will now be closed and a sign will be placed on the shutter with a telephone number for client enquiries. We want you individually to continue to work from home and assist clients by providing telephone advice and via video links (bridging software can be used from home which the LAA will reimburse: http://www.videoconferencebridge.com/court-video-link/4578202639 – we will be sending out a further email regarding this).

It follows that in criminal matters our advice to clients is that it is fundamentally unsafe for us and them to attend court and that we can assist them by writing and telephoning the court to explain their and our absence and to request adjournments and the enlargement of bail.

In family matters it is our understanding the majority of hearings will now take place via Skype for business or by telephone.

It also follows that we are not going to ask any agent or Counsel to risk their lives and we will share this email with the agents we often instruct, freelancers, Counsel and their Chambers.

We are currently investigating how we might continue to support and represent clients using video link software from the safety of your own homes. We will send out a further update regarding this during the week. We have taken this step in the light of everything we have read and know about the highly infectious nature of COVID-19 and our responsibility for your health and safety. In the absence of any positive decision by the MOJ/LAA to protect providers and their staff we decided we cannot wait any longer for such a decision.

Yours faithfully

Greg Powell, Sinead Zaman and Saloud Zaman