The Demise of Criminal Legal Aid: Jan Davies explains how a suspect's right to legal representation is being curtailed - and why the public has taken no notice

Posted by Jan Davies

Jan Davies - a solicitor in the criminal courts for over 20 years and the author of The Criminal Advocate's Survival Guide - shows that a suspect's right to legal representation is fast being curtailed. Yet this important change to our whole system of justice has gone largely unnoticed.

There are reports of chaos in many police stations as a result of the Legal Services Commission insisting on calls for legal assistance being channelled through a call centre. Some may remember the Legal Services Commission, or LSC as it is commonly known, as the Legal Aid Board: it is the body which administers the legal aid scheme.

Call centre staff have often been using contact details which are out of date and bungling referrals through insufficient knowledge of what is required. LSC spokesmen have dismissed the problems as teething difficulties, but the muddle was all predictable. (See my earlier, CDS Direct - call centre advice for suspects in custody: Jan Davies explains how a little noticed reform of the legal aid system will undermine a suspects' right to legal representation ).

The rules for the use of the call centre are farcical: for example, if a solicitor is instructed by a suspect's family that he is in police custody, they can attend without going through the call centre: if they are contacted by the man himself they should not. The Criminal Law Solicitors Association is collecting the tales of inefficiency and encouraging its members to make formal complaints.

Unfortunately, this area in which criminal legal aid work is being made inefficient is not the only way in which the LSC's constant interference is causing difficulties. Its contracts for barristers to work on very high costs cases (frauds and other cases which result in lengthy trials) have been treated with contempt by members of the Bar as inequitable. Out of 2,300 barristers who were offered contracts to undertake such work only 203 have signed up.

The question the taxpayer has to ask is whether because a service is publicly funded it should be micro-managed in the interests of control, even where this results in additional cost, and whether the independence of our legal system is worth preserving. Turning what is a public serving provided by private firms into a nationalised service has been shown to be expensive, and it is surely dubious whether those prosecuted by the State should have the State to defend them.

On 14th January 2008 new contracts for criminal legal aid work came into force. All solicitors' firms doing such work had to indicate by 31st October 2007 that they would be prepared to sign the contracts, and had to give this indication before the contract had been sent to them, In July new contracts of 18 months' duration only are to be issued and then the system is to be plunged into competitive tendering. The LSC prefer to call this Best Value Tendering, presumably on the basis that this sounds softer, but the process is to be competitive and is intended to drive prices down.

14% of solicitors' firms who were doing criminal work are said to have decided not to bother continuing. Some new firms have signed up, but these are likely to be sole practitioners or very small firms fragmenting from those who have given up altogether, operating on shoestrings from home or with very short leases and intending to give up when competitive tendering is introduced.



On 29th November 2007 the Commission issued a press release. It was an interesting piece of spin. The Commission described a Court of Appeal judgment as a welcome "clarification" and said:

This now enables us to move forward with greater certainty.

You could be forgiven if you read the press release at speed for thinking that the court case had almost been the Commission's idea, but the reality was that the Commission had been sued by a respected firm of solicitors in Reading, Dexter Montague, and also by the Law Society and had lost on all points.

The contract for civil work contained clauses which allowed the Commission to amend it almost at will. While it is inevitable that during the life of a long contract there will have to be some amendments in response to changing circumstances, the Commission had given itself a very wide power to amend it indeed, to the point where they would be able to re-write the contract. The Court of Appeal described the contracts as "an extreme case", and the Commission will now have to pay not only the costs of the entire case, including the costs of the Law Society, but also damages. It will be interesting to know what the ultimate cost of all this will be to the taxpayer.



You might have thought that having lost so decidedly in court the Commission would have taken the opportunity to reflect and to consider how the judgment impacts upon clauses at present in the criminal contracts issued in January. There was no sign of any humility in their press release, which contained the usual buzz phrases about a "sustainable" legal aid system and "progressing" with reforms.

Even after the court judgment the criminal contracts still contained a clause which said that the Commission may "at our discretion" add to the specification of what is required under the contract "at any time". There were provisions for consultation to take no longer than 6 weeks, or even as little as 21 days, but the amendments could be with individual contractors as well as generally. Put bluntly they wished to amend the contract whenever they felt like it and with whomsoever they pleased. They also wished to terminate the contracts at short notice, but said they would do so:

only when we consider it necessary or desirable to do so in order to facilitate a reform of the Legal Aid Scheme.

So it would make no difference whether a firm is providing a good service, and the contracts do not even give security for the six months of their duration.

It is impossible to run a business with this uncertainty. Firms with long office leases will be seeking to escape from them. Staff will not be offered any sort of job security. No sensible person is going to want to enter criminal legal aid work. The Commission talks about firms needing to "restructure", by which they mean sacking the experienced and qualified staff and employing low paid people to do the bulk of the work. A person with a problem is unlikely to see a solicitor at the start of his case.

In 1994 Mike McConville, Lee Bridges and others published Standing Accused. It was widely read, particularly by the Legal Aid Board which was said to have funded the research. The book describes the behaviour of what I would call the bucket firms - firms which employ a large number of unqualified staff, in which files are passed around like unwanted parcels and there is little care of cases. The abuses it described were very familiar to those associated with large firms, yet the book's illogical conclusion was that large firms were to be preferred. This theme has been taken up enthusiastically by the Legal Services Commission, although as the House of Commons Constitutional Affairs Committee noted in a very thorough and thoughtful report published in May 2007, there is no evidence to support the contention that quality is provided by the large firms.

In any event, although the Commission may want to deal with large firms, the reality is that they are not there. Lord Carter noted in his report published in 2006 that 33% of criminal legal aid firms in 2004-5 had an income of less than �100,000: it can be presumed that these were either sole practitioners or very small firms indeed.

Criminal work and established large firms do not mix. In a traditional firm the partners are concerned with fee targets. The criminal work is rightly seen as low paid and the partners will not want the Commission's auditors crawling all over their office, ticking boxes and rifling through files and telling them how they should run their business. The sole practitioner will typically be someone who began his career in a traditional firm, left when that firm decided to give up crime and set up on his own, being prepared to exchange a low income for the satisfaction of running his own ship. (I am using the word "his" to describe the solicitor, but of course it could also be "her". Women who have found it difficult to achieve partnership in a male dominated firm have made a success of running their own small business.)

The situation is different in London and in some major cities like Liverpool, but in the small or medium sized town you are unlikely to find a large criminal firm. The patchwork of small firms has served the system well, and there is considerable anger at the prospect of being subjected to a competitive tendering process which will undermine the good relations that firms that have with each other. Those who maintain that large means quality usually have no knowledge of the informal working relationships between small firms. We all have each other's home numbers and can easily get help with any police station or court emergency.

I would not expect my doctor or dentist to have to submit to competitive tendering. I know that my doctor is not a businessman but first and foremost a professional, and I want him to concentrate on my health. Similarly, I would not want my dentist - always supposing that I could find someone who still did NHS work - to be looking over his shoulder at auditors rather than concentrating on my teeth. I would also know that once a doctor has been refused a contract he is not going to be there the next time there is a round of competitive tendering - and it is proposed that competitive tendering for legal aid contracts should be every three years.

But sadly, the general public has little regard for solicitors. It is not until a member of their family is in trouble with the police that anyone realizes that solicitors do provide a service. People may be shocked by the treatment of lawyers in Zimbabwe or Pakistan, but their concern rarely extends to interest in our own legal system. Personally, I am considering setting up in business on Brighton Pier, or some other suitable place, and telling fortunes. It would be less stressful and possibly more secure.

Jan Davies has been practising as a solicitor in the criminal courts for over 20 years. She was a founder member of Reading Solicitors Chambers and between 2001 and March 2007 was a senior crown prosecutor in Oxfordshire. She now practises as an advocate in both magistrates and crown courts as an associate member of Reading Solicitors Chambers. She is the author of The Criminal Advocate's Survival Guide (Carbolic Smokeball Company, 2007).