The Secret Barrister
Page 18
The rub comes when we look at how that principle has evolved in the courtroom. Because in practice, the defence are expected to do far more than simply identify the issues. Many solicitors would reflect that they are often expected to do the CPS’s job for them. ‘Assisting the court in fulfilling the overriding objective of the Rules’ means that, if the court has directed that the CPS serve key evidence or a legal application (say an application to rely on the defendant’s previous convictions) by a given date and the CPS has defaulted, the defence should be chasing the CPS to remind them to serve the incriminating evidence against their client. Rather than assume that the CPS’s indolence will be their downfall, defence solicitors must in the spirit of the Rules chivvy the prosecution along and bring its failure timeously to the court’s attention. Chasing the CPS has always comprised a thankless portion of the defence solicitor’s diet. As we have seen, the disclosure of material in the prosecutor’s possession that might reasonably assist the defence or undermine the prosecution and which the Crown are legally obliged to provide to the defence has long been abominable in both magistrates’ and Crown Courts, and it is not uncommon for dozens of requests to be faxed, emailed and deposited on CPS answering machines, never to be addressed. But that, although unacceptable, can at least be chalked up as a job foreseeably within the remit of the defence representatives. When the same effort again has to be expended chasing material that doesn’t assist your client but assists the prosecutor, solicitors are carrying a burden which, aside from the obvious objection from principle, has a cumulative consequence on defence resources. Put simply, the more time a firm spends chasing the CPS, the less time it has to prepare its clients’ defences. And as the CPS budget has decreased, and its inefficiencies have increased, the volume of additional unpaid chasing that the defence are expected to undertake is going up and up and up.
I slipped in the word ‘unpaid’ advisedly. Because here lies the kicker. In police stations, magistrates’ courts and ‘volume’ Crown Court cases (the bulk of the Crown Court’s everyday work, excluding the super-serious or important cases), which make up the bulk of solicitors’ work, and where the prosecution disorder is greatest, solicitors are paid a fixed fee per case. This system has been in place in the magistrates’ court since 1993, and as of the latest round of ‘reform efficiencies’ in 2016, this has been extended so that litigators are now paid a modest fixed fee for police station, magistrates’ court and Crown Court cases involving up to 500 pages of evidence (i.e. most Crown Court work). The fixed fee is intended to reduce spending on legal aid, but often does not reflect work actually done. If the idiosyncrasies of a case – the vulnerabilities of the defendant or the complexity and volume of the evidence – render it more time-consuming, much of the solicitor’s work is unpaid. Or, if you like, all of it is paid, but at an economically unviable rate.
This may surprise you. The stereotype holds that lawyers are fabulously well off. You may well know a lawyer, or of a friend of a friend who’s a lawyer, who is fabulously well off. If so, I offer you an iron-clad guarantee that they are not a criminal lawyer. We’ll look a little more at the myths of barristers’ earnings later, but suffice to say that the rates that your defence solicitor will be paid on legal aid can be astonishingly low.
What is Your Solicitor Being Paid?
Let’s take a worked example, from police station through to trial. To borrow from a case I once defended: let’s imagine that your marriage sadly dissolves, and you leave the family home to live elsewhere whilst the acrimonious legal process takes its course. On the eve of an important business trip, you realize in a panic that your passport is in a drawer in the study of your former abode. Your spouse is herself away on holiday and the house is locked and empty. Fortunately, you know that by jimmying a screwdriver in the conservatory back door, you can spring the mechanism, let yourself in, retrieve your passport and skip away into the starlight, with no harm or damage caused. Unfortunately, a nosy neighbour, knowing the occupiers to be in Spain, spies you fiddling with the rear door and calls the police, who arrive in a blaze of sirens moments later. When the police telephone your vengeful spouse in Malaga, she throws her weight behind a tactical prosecution, claiming that your true purpose in breaking in was to help yourself to certain valuable trinkets that were the subject of dispute in the divorce proceedings.
Your explanation cuts little ice with the uniformed officers, and you are arrested on suspicion of burglary and escorted to your local police station, arriving shortly before midnight. At this point, your solicitor kicks into action. They will clamber out of bed and head across town to join you. They will advise you during your police interview, which can last, depending on the seriousness of the allegation and the skill of the interviewer, up to several hours. In an ideal world, your explanation would suffice for the police to take no further action. But given what the police are inclined to believe in this case, they persist. You are bailed pending further enquiries, and, a month later, are charged with burglary.
That sounds like a straightforward enough process, but in that period between arrest and charge your solicitor will be beavering away for hours, if not days, trying to head off the prosecution. They will be writing letters to the police custody sergeant trying to relax that ridiculous condition on your police bail that prevents you from seeing your children. They will be liaising with your divorce solicitor to obtain any paperwork from those proceedings that might help in proving your bona fides to the police. If you had been required to attend an identification procedure at the police station, they would accompany you, scrutinize the procedure to ensure its lawfulness and deal with the paperwork, which might take close to a full day. If further evidence emerges and the police wish to interview you again, back you and the solicitor go. You may have two years’ worth of confrontational emails and social media correspondence with your estranged spouse, which your solicitor will read to ascertain whether anything might help you. There will be phone calls with you and written correspondence and every effort made to put together enough to dissuade the police from charging you.
For all that work, the solicitor will be paid a single fixed ‘police station attendance’ fee of roughly £170. If that sounds a low gross figure for what might amount to twenty hours’ work, it’s because it is. In the words of a solicitor I know, every police station attendance is now considered a loss-leader. Solicitors do it because they hope firstly that they will succeed in heading off a prosecution, and you will recommend the firm to your less fortunate friends, and, secondly, if you are charged, that you instruct them to represent you for the court proceedings, which may pay slightly better.
Not always, though.
Having been charged, you are now facing trial for burglary, an either-way offence that can be heard either before the magistrates or a jury. Let’s say you qualify for legal aid and instruct the same solicitor’s firm to prepare your defence for trial. Now a litigator might typically carry out the following work:
— Read and analyse the evidence (one hour)
— Examine the prosecution Schedule of Unused Material and assess what unused prosecution material might be of help to your case (thirty minutes)
— Hold a conference with you to take your instructions (two hours)
— Prepare your Defence Case Statement to serve on the court (one hour)
— Draft your ‘proof of evidence’ (your witness statement, which is not served on the court or prosecution, but is used by your advocate when examining you in evidence to ensure that all relevant questions are asked) (one hour)
— Attend case management hearings at court (anything between half a day to a full day)
— Contact and take statements from your two defence witnesses (two hours)
— Accompany you to a conference with your trial advocate (two hours)
— Arrange the instruction of a defence expert to challenge the prosecution expert fingerprint evidence (two hours)
— Obtain the tapes of your police intervie
w and check the accuracy of the prosecution transcript (three hours)
— Respond to your queries over telephone and email (two hours)
— Correspond with the prosecution in writing and over the phone regarding disclosure requests (one and a half hours)
— Attend court for a two-day trial (either as your advocate in the magistrates’ court, or to support you and the advocate in the Crown Court)
On this rough calculation, we’re looking at about twenty-two hours’ preparation pre-trial, and then two days at court – so sixteen hours – for the trial itself. Now let’s look at what, on current fixed legal aid rates, the litigator would expect to be paid.
In the magistrates’ court, depending on geographical location the fee would be between £650 and £720. So between £17.10 and £18.95 an hour. In the Crown Court, it’s even lower: the same case would attract a fixed litigator’s fee of £352.72, giving a gross hourly rate of £9.28. The London living wage is £9.75 an hour. Even if we forgo the attendance at Crown Court, which for obvious reasons many solicitors nowadays do, the hourly rate lingers around £16. That is gross – out of that, the firm must pay staff salaries, National Insurance contributions, pension contributions, rent, rates, administrative costs, practising certificates for each solicitor, training costs, insurance and tax. Regardless of size, firms must employ a Compliance Officer for Legal Practice and a Compliance Officer for Finance and Administration. They must also pay to hold a quality mark authorizing them to carry out criminal legal aid work, and for IT costs to work on the court digital platform.
Imagine the quality of tradesman you would get offering that net rate. If on the day of trial the defendant pleads guilty, or the prosecution drops the case, the solicitor’s fee will plummet to £233. Studies of the similar fixed fee regime in Scotland showed that, following its introduction, lawyers dramatically increased the number of cases they undertook, and correspondingly significantly reduced the time they spent preparing each one.7 Such behaviour, while terrifying if yours is one of those cases, is the only rational response to such fee models. Although not the time for special barrister’s pleading, this is perhaps an appropriate place to remark that, if you have elected a Crown Court trial – i.e. if the magistrates deem your case suitable for summary trial, but you sensibly prefer your chances in front of a jury – and you end up pleading guilty on the day of trial – perhaps because the prosecution make an offer that you can’t refuse (let’s say they offer to drop the burglary if you plead guilty to causing £15 worth of criminal damage to the conservatory door) – your barrister will be paid a flat fee of £194 for all her efforts on the case. All her appearances at court, all her trial preparation, all her conferences with you. The gross hourly figure, if it bears calculation, can be less than £3. Again, consider the perverse incentives deliberately engineered by the system which shouldn’t, but which may, be influencing how much time your barrister decides to devote to preparing your case, or what advice they may give you when the prosecution dangle an offer in front of you. I will say, hand on heart, that my perennial ‘impostor syndrome’ and terror of looking foolish propels me to put as much effort into my cases as the laws of time and space allow; but I know several barristers who, faced with the prospect of making a loss on a case – of literally paying to work – will wing it and hope for the best.
If you are wondering how we came to a position where our betters decided that criminal defence representation was worthy of an hourly rate one tenth of an electrician’s,8 you will as ever find the answer embedded in a morass of institutional incompetence and botched money-saving. The Ministry of Justice’s grand plan announced in 2013 was to slash the number of criminal legal aid firms by two thirds, from around 1,600 to 527, through a complex contracting scheme.9 In short, only 527 firms would be contracted to carry out police station work, thereby excluding the remaining 1,100 from a valuable source of clients. The theory was that this would force a ‘market consolidation’ – i.e. the financial collapse of hundreds of small- and medium-sized businesses – which would result in fewer, larger criminal firms handling far more work. The economies of scale that it was assumed would follow would allow the MoJ to cut solicitors’ fees, which had already been significantly reduced in real terms by inflation since their last adjustment in 2007, by a further average of 17.5 per cent, split into two staggered reductions of 8.75 per cent. It was another cheerful hurrah for the ‘stack ’em high and sell ’em cheap’ model beloved in the mags’ courts, with no regard for quality of or access to justice. The fact that, for example, the contracting model would result in ‘deserts’ in rural areas, with a lack of local firms forcing defendants to travel several hours just to see a solicitor, was not germane to the MoJ’s contemplations.
Nor, it transpired, was a grasp of economics. Because the base assumption of the model – that criminal firms could, through consolidation, absorb further significant cuts to legal aid rates – was false. The precarious finances of most criminal firms, even big firms, meant that very few could sustain the cuts, nor could they afford the upfront cost of restructuring into the larger organisms that the MoJ assumed would materialize. This was the conclusion of an independent report10 that the MoJ itself commissioned in conjunction with the Law Society to analyse its proposed reforms. Before the government had acted on its proposals, the report warned that there were serious problems with the MoJ’s modelling. It was noted that criminal legal aid firms operated on a tiny net profit margin – an average of 5 per cent – and their finances were ‘fragile’. The bigger firms, perhaps counter-intuitively, reported the slimmest profit margins. Most did not have significant cash reserves or high excess bank facilities. The report cited research indicating that 50 per cent of solicitors’ firms were at medium or high risk of financial difficulty, with their reliance on legal aid income a relevant ‘risk factor’. Firms indicated that they had already made every cost saving they could, and there was little scope to reduce overheads further.11
What’s more, the above calculations did not reflect a previous round of legal aid cuts that took place in 2010, including a 37 per cent real-term cut in Crown Court advocacy fees. Although this cut was aimed mainly at barristers, many solicitors’ firms employ their own barristers or solicitor-advocates to conduct Crown Court advocacy and rely on the advocacy fees to cross-subsidize the lower-paid litigator rates. So the already gloomy assessment was in fact unduly optimistic. With all this in mind, the report implored the government not to implement any fee cuts with the market in its present condition.
Within a month, on 20 March 2014, the government went ahead with the first round of ‘average’ 8.75 per cent cuts to fees anyway, and the imposition of fixed fees for the bulk of the Crown Court litigation work.
Fortunately, shortly after the second tranche of cuts came into force, and following organized industrial action sparked by firms in the north-west refusing to take on cases under the new scheme, then-new Justice Secretary Michael Gove recognized his predecessor’s folly and quickly abandoned the entire new contracting model in January 2016, reversing and suspending the second cut in the process. Less fortunately, he elected to leave that first 8.75 per cent cut in place, which, for firms operating on a net profit margin of 5 per cent, has not been easy to absorb. And that second cut remains hanging in abeyance; a Damoclean threat as the MoJ seeks to negotiate further cuts by other means.
And, of course, in the fixed fee model, each phone call made to the CPS chasing evidence, each fax repeating a disclosure request, each letter containing polite reminders to comply with court directions, each case management hearing and each futile adjournment represents an added expense for which the solicitor is not reimbursed. While streamlining proceedings and reducing the number of unnecessary court hearings will in the long term help to reduce the burden on defence firms, in the meantime it is they who are expected to shoulder more and more of the problems caused by the court and CPS inefficiencies.
This can’t be right. Recent ministerial announc
ements appear to consider publicly funded law as a virtue; as something that can be done below cost or pro bono, subsidized by a firm’s lucrative commercial law practice.12 But aside from the offensive assumption that there is no value in criminal specialists, that this tortuous, complex legal behemoth can be tamed and mastered in the spare time of a Savile Row-embossed mergers and acquisitions associate, it cannot be right as a matter of principle that a decision on liberty is viewed as a loss leader. If you were wrongly accused of an offence, how confident would you be of the quality of your representation if you knew that their hourly rate was below minimum wage? Criminal cases should be paid properly in their own right. If they are not, if solicitors are paid peanuts, we know what will be proverbially swinging through the branches to defend you.