Jeffrey Report and the Devastation of Criminal Legal Aid

When I started as a criminal lawyer in the late 1970s, a 5 solicitor firm might have 6 or 8 clients in their local court each day.  By the time I gave up legal aid in 2008 it might be 1 or 2 a week in each court spread across London.

The change was driven by the state sponsored duty solicitor scheme.  Its introduction in 1985 was of huge benefit in protecting vulnerable people in police detention, but it produced a catastrophic drop in efficiency.  It allocated duty rota slots to individual solicitors, thus requiring firms to chase market share by increasing their solicitor payroll.

Between 2003 and 2010 the Legal Services Commission wrestled endlessly with the question of reform.  The Carter Review was very clear on the way ahead – peer review, followed by best value tendering, to secure an appropriately sized sustainable defence service from firms of established quality.

As we know, the profession fought back, and the LSC lost its nerve.  The reforms were abandoned.  Under a Conservative government we now face the consequences .  Funding has faced a series of cuts reducing it far below the point where efficiency gains protect service levels.

This is a catastrophe for everyone who comes into contact with the criminal justice system.  There has been massive deskilling in the conduct of routine criminal trials, as reflected in the recent report by Sir Bill Jeffery on advocacy standards.

But so far uninvestigated has been the loss of resource in case preparation.  As Jeffrey said in his report “Poor preparation is the enemy of good advocacy”.

Given the scale of the cuts we ought to be worrying about whether a criminal defence solicitor can properly investigate and prepare a case for trial on current funding levels.    The Government continues to cut rates without any idea of what its pitiful stream of funding can buy.  As an appeal lawyer, I can say that its increasingly looking like “not much”.  The resource applied is often near to non-existent.

This is an appalling state of affairs, in one of the world’s wealthiest countries in the 21st century.

We need urgently to follow the Jeffrey report with some properly funded research on whether criminal defendants’ cases are properly prepared for trial.

Solicitors in Trouble

The Law Society criticised the SRA for its discouraging announcement that 20% of the top 200 firms are in danger of collapsing.  The SRA has just capped that achievement by publishing a cheerful document “Risk Outlook 2013” which reveals that 1200 solicitors firms – 10% of the total – are now in financial trouble.

This financial trouble is a piece of policy pushed by both the last and the current government, as urged by Clementi.

From the sole practitioner to the large West End firm, no solicitor is ever fully proof against finding themselves in financial trouble.   But since the profession was opened to competition the problems are multiplying at an alarming rate, and more solicitors than ever before are struggling to stay afloat.

With the cost of interventions pushing £7 million annually, one has to wonder whether the “big bang” which the Legal Services Act 2007 created will really prove to be in the public interest.    A more gentle approach might have produced better outcomes all round.

Transforming Legal Aid and Gresham’s Law

More on the consultation paper “Transforming Legal Aid”. Along with it the government was obliged to publish an impact assessment.

At the heart of a truly feeble defence of price tendering for criminal defence work the following concession is made:
Client choice may in certain circumstances (where quality is easy to measure and clients have good information about the relative ffectiveness of different providers) give an incentive to provide a legal aid service of a level of quality above the acceptable level specified by the LAA, as firms effectively compete on quality rather than price. The removal of choice may reduce the extent to which firms offer services above acceptable levels”

This is misleading tosh. See my earlier post “Buggins Turn” on whether the LAA approved “threshold competence” level is acceptable.

But it gets worse.  You may not even get a threshold competent service. Take away the power of consumer choice and there is no reliable mechanism for ensuring acceptable levels of quality. Most LSC peer review outcomes were fair, but there were some real bad apples in the top grade. Some should have won a fiction prize for their doctored files. Go figure which of these will win in a price tender!

The genuine threshold competent lawyers will be driven out by the fake ones who doctored their files.  Its also known as Gresham’s law.

The Meaning of the Missing Documents

I recently sent a box of files to the Royal Courts of Justice at the end of a criminal appeal, so that the bill could be checked and paid.  A few weeks later the Court of Appeal was chasing me for my papers.  We soon established that they had disappeared in the hands of the RCJ.  They have vanished into thin air.

This has not happened to me since the 1980s (when such events were commonplace).  Mrs Thatcher may have gone, but the hopeless state to which she reduced our public services is gradually returning. 

Do not expect  the return of your papers (or any justice either) from a chronically underfunded system.

 

“Transforming Legal Aid” and Buggins Turn

Criminal legal aid work is already dogged by rock bottom hourly rates and unsocial hours. It now faces its Waterloo. Given the desperation of this government to cut public expenditure there is a real risk that the vision set out in the consultation “Transforming Legal Aid”* may actually come to pass.

In a nutshell, the MOJ proposes that the 1600 firms in England & Wales which undertake the work at present will enter into a cutthroat price competition sometime this autumn. Only 400 will emerge with exclusive contracts to carry out publicly funded work. In London the attrition rate will be something approaching 80% of all firms. The winners will be those prepared to take the responsibility of defending criminal cases for the very lowest figures.

The present scheme is not an efficient one, and reform was inevitable at the hands of a government strapped for cash. However, any reform must pass a critical test of assuring the quality of representation given to defendants.

The consultation paper pays no more than lip service to quality. It proposes that “threshold competence” is an adequate standard. I recall clearly, when serving as a Commissioner on the recently dismantled Legal Services Commission, being shown a sample of peer reviewed “threshold competence” files which contained elementary mistakes on the law. It is to the eternal shame of the LSC that it permitted “threshold competent” firms to stay in business.

Under the present system a defendant can choose their own lawyer. The better informed do find their way to the firms which display higher quality standards. The consultation proposes that this choice should end. The defendant will become “market share” and will be allocated by Buggins turn. Inevitably some will be represented on serious charges by the equivalent of Stafford Hospital, with no right to change lawyers no matter how bad things are.

That this is the opposite of how a market functions seems to have escaped the Ministry of Justice.

* https://www.gov.uk/government/consultations/transforming-legal-aid-delivering-a-more-credible-and-efficient-system#download

Justice in Secret is No Justice At All

The terms of the Justice and Security Bill (presently before the House of Lords) are chilling. It would hand to the executive an unchallengeable right to withhold from a public hearing whatever it certifies to be a matter of national security.

Claims against the UK government for unlawful rendition, torture and extra-judicial killing would often be heard behind closed doors. When they were turned down, no-one would know why.
How sound are the arguments advanced on behalf of this bill?

Of course it affects national security when British military and agents are involved in torture, rendition and unlawful killings. A great backlash of anger towards the UK is inevitable, and is a daily reality in many countries.

But in fact, our national proclivity for torture and killing is not a secret to its victims. The people who are not supposed to know are closer to home. The voting public of the UK, in fact.

Ken Clarke has done his best to defend this bill. It creates a forum, he says, for cases that otherwise cannot be heard. But how is the public interest served by having it heard in secret? Not at all. If justice is not done in public, how can anyone judge if it is justice at all.

Would this power be abused? You can bet it would!

Its really important that this bill is rejected, and that the real public interest – in the rule of law, in open and transparent courts – is upheld.

Bankers’ crimes are overlooked

For Jeremy Bentham the effectiveness of the criminal justice system was based on the deterrent effect of a human calculation of the pain of punishment. He argued that certainty of detection was one of the key factor which made people obey the law.

The condition of the criminal justice system in the UK has majored on the intensity and duration of punishment, with constant measures to make prison hurt and to lengthen sentences. But the more that is spent on punishment, the less is left to spend on ensuring certainty of detection.

Nowhere is this better illustrated than in the financial world where, some suggest, the worst and most damaging criminality occurs.

The chance of anyone being prosecuted for financial crimes running into £1billions is vanishingly small. The number of financial professionals convicted of bribery, insider trading, and cartels in any year can be counted on the fingers of one hand.

As public outrage grows, the government is far from moving to put matters right. In April 2010 George Osborne announced an Economic Crime Agency to take over from the Serious Fraud Office with new powers. It would also sweep away Fraud Prosecution Service, the Revenue & Customs Division and the Office of Fair Trading (OFT). However, successful lobbying by these agencies persuaded the government not to proceed.

The one change the SFO has seen is a really large budget cut. It has dropped from £51 million in 08/09 to £33million this year and will be down to £29 million by 14/15. The OFT is facing a 25% budget cut. And so on.

This approach to white collar crime is all the more odd given Mr Osbourne’s eloquence to the Telegraph in April 2010:

“We are very, very bad at prosecuting white-collar crime. We have six different government departments, eight different agencies, a complete alphabet soup, and the result is that these crimes go unpunished. There is £30bn worth of fraud taking place in the British economy each year.”

Mr Osborne added:

“Frankly, robbing someone of their pension through some con is almost as bad as mugging them in the street”.

Indeed.

So Labour wants to cut criminal legal aid again?

Already, the private firms which constitute the Criminal Defence Service are stretched paper thin.  As an appeal lawyer reviewing the work of many different lawyers I observe that a significant proportion provide no effective service at all any more.   As the rate for the job has fallen for 18 successive years in a row, it is hardly surprising that all the available economies were captured many years ago.

When legal aid law firm incomes are squeezed, all that remains now is to cut the quality of service.   Clients are too often told that witnesses are irrelevant, experts cannot be found, and better disclosure would make no difference.  And the consequence is an increasing number of miscarriages of justice, most of them incapable of fixing within the framework of the UK appeal system.

The last Labour government sat on its hands for 13 years.  It failed to jump the fence of professional opposition and instituted no significant reform of the legal aid market.  Instead, it disembowelled its own quality assurance and anti-fraud mechanisms leaving a market rife with poor standards, where better firms have fared worse.   Given its majority and its bold words before the 1997 election it was a shameful failure.

We cannot rely on vulnerable clients in the areas of mental health, crime and welfare law to raise the alarm when lawyers fail.  If there are to be further budget cuts in criminal legal aid the work needs to be rationalised in the hands of a smaller number of larger firms which are subject to much closer regulatory inspection.  It is time for Labour to revisit this area and face up to its responsibilities.

New Cartel Offence

Adam Smith is often quoted for his comment on cartels

” People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices”.

Less well known is the sentence which followed

“It is impossible indeed to prevent such meetings, by any law which either could be executed, or would be consistent with liberty and justice”

In March the government announced a package of competition law reforms, including a bonfire of the OFT and the Competition Commission, from which will arise phoenix-like a new Competition and Markets Authority.

Among the changes is an amendment of s188 Enterprise Act 2002 (the cartel offence) by removing the element of dishonesty.   It answers claims that without some skin in the game no executive really cares whether a cartel is formed or not.  Only two prosecutions have been mounted for hard core cartel offences since 2002.  This has embarrassed the UK government which is committed to strong market competition and faces huge pressure from the OECD to tackle cartels.  So here is a new simplified cartel offence of strict liability which an individual may commit (yes they can) without even realising they are doing anything wrong.

We do not have a professional business class in the UK in the way they do in the US or Germany. Many businesses in the UK, particularly family firms and startups, prove slow to respond to regulation. Individuals running these companies who fail to keep up with the arc of law reform are a much softer target than the large corporation. Prosecuting agencies under pressure will always massage their productivity figures by taking the low hanging fruit, and we must be careful that any reform does not result in a string of sorry individuals facing prosecution while major companies manage to cheat the public.

You can read my fuller blog on this at Halsbury’s Law Exchange http://www.halsburyslawexchange.co.uk/cartels-and-law-reform-a-conspiracy-against-the-public/

Some academic commentators with an interest in stronger anti-competitve law have dismissed fears of miscarriages of justice.  But this only bespeaks lack of experience of how law enforcement happens.   Long experience says that selection for prosecution in matters like this involves chance as much as just desserts.  So often it is a racial or ethnic minority defendant upon whom the grip of chance closes, or sometimes simply the potential defendant in possession of valuable assets which make a confiscation order an appealing prospect.  This is why a formulation offered to the UK government by the American Bar Association is so welcome: “that the defendant agreed to cause the relevant corporate entities to engage in the conduct specified in s188 Enterprise Act 2002 and knew or ought to have known of the terms of the conduct engaged in”.

English critics could do with listening to the ABA – they have been dealing with strict liability anti-trust law for 122 years.

Fishy business over the pond

The Attorney General for Massachusetts has urged the US Congress to stop allowing the marine enforcement agency to keep proceeds of fines and forfeitures it imposes on fishermen.

Former Commerce Secretary Gary Locke  set up an investigation into the forfeiture activities of the National Oceanographic and Atmospheric Administration (NOAA).

His appointee, federal Inspector General Todd Zinser, found

“extensive waste, fraud and abuse by the agency. It also proved what fishermen have long suspected: allowing NOAA Fisheries to retain the proceeds from forfeitures, seizures, fines and penalties against fishermen gives the agency a perverse incentive to continue its abusive enforcement practices against fishermen. This conflict of interest must be eliminated.”

Congressman Barney Frank and Senator John Kerry have launched bills in Congress and Senate respectively to remove the NOAA access to seized funds.  Both bills would establish a formal process to reimburse fishermen and related businesses for legal fees incurred in successfully challenging enforcement penalties.

As any student of “freakonomics” will tell you, every economic incentive creates a perverse result.  Incentivising confiscation by sharing the proceeds with enforcement agencies has produced an international system of state-licensed banditry, in which the assets of innocent and guilty alike are meat for a hungry public sector.

The UK has many great examples of this.  Watch this spot.