The National Audit Office’s latest report to Parliament on the procurement of Criminal Legal Aid in England and Wales will make uncomfortable reading for the Legal Services Commission.

In 2008-09 the Commission spent more than £1.1 billion on criminal legal aid, £112 million of which was spent on 432 Very High Cost Criminal Cases.  871,000 acts of assistance at police stations and 125,000 acts of assistance at the Crown Court were funded. The LSC spent £22 per capita on criminal legal aid, more than any other comparable developed nation except Northern Ireland. At the other end of the scale France spent £0.9 per capita, though differences are partly attributable to the greater defence costs inherent in an adversarial legal system, in contrast to jurisdictions where judges play a greater investigative role.

The NAO found that the data used by the LSC to make payments for criminal legal aid services is inaccurate and incomplete. The existing controls over the quality of data and the accuracy of payments made to firms are not effective, and the impact of reforms has not been evaluated consistently. At present, gaps in the LSC’s knowledge about its supplier base mean that it has not developed a good understanding of the market, such as the cost structures of different types of firms and their profit margins. The NAO concluded  that “there are significant weaknesses in the way criminal legal aid has been administered…New schemes have not always been piloted…(and) the Commission’s ability to make payments to criminal legal aid suppliers is undermined by poor administration”.

An NAO survey of 369 firms delivering criminal legal aid found that it accounted for almost 60 per cent of turnover. Firms reported an average profit margin of 18.4 per cent in the last financial year, a fall from 21.6 per cent three years ago. They reported a wide range of profits, with 16 per cent of firms reporting no profit in the last financial year. Almost 80 per cent of firms which also conducted private legal work reported that criminal legal aid was less profitable, and firms which had withdrawn from contracts reported the main reason was that remuneration compared unfavourably with other types of legal work.  In their survey, 28 per cent of firms reported it unlikely they would be conducting criminal legal aid work in five years’ time, due mainly to lack of profitability and the prospect of tendering. The survey also revealed tensions in the relationship between the profession and the LSC. Of those who responded to the survey, 36 per cent of solicitors perceived the LSC as ‘unhelpful’, 29 per cent believed the LSC did not fully understand the legal system and 18 per cent cited the Commission’s “constant change of the system, processes and rules.”

The Law Society has welcomed the report. Legal aid manager Richard Miller said:

“This report goes a long way in dispelling the belief that legal aid lawyers are profiteering from the system. Many of them are not even earning any income from the work they do at all. This is a picture of a supplier base on the point of crumbling into insolvency. It is those requiring access to justice who will lose out in the long run if there are not enough solicitors providing legal aid criminal defence services.” He called for a major overhaul of the system to simplify criminal defence contracts so that they are easier and less expensive for the legal aid solicitors and LSC to administer.

For the full text of the NAO report ‘The Procurement of Criminal Legal Aid in England and Wales by the Legal Services Commission’ go to: http://www.nao.org.uk/publications/0910/procurement_of_legal_aid.aspx 

and follow the links.

Last week the Legal Services Commission announced the launch of a consultation on the replacement scheme for Very High Cost (Crime) Cases (VHCCs).

Chief Executive Carolyn Regan said: “The LSC is setting out a number of options for the most complex and expensive criminal cases that are designed to ensure clients continue to receive high quality legal advice. At the same time, it will also ensure litigators and advocates are fairly paid and are encouraged to work efficiently so that taxpayers receive value-for-money”. The new scheme is designed to replace the VHCC Panel scheme, established in January 2008, and the LSC makes no bones about the need to deliver savings.

For advocates, three options are proposed for consideration: to maintain the current panel system; an adaptation of the current hourly rate scheme but managed under individual case contracts; and extending the current Advocates’ Graduated Fee scheme, which is used in cases that last up to 40 days, to include cases that are expected to last up to 60 days. All cases that last 60 days or more would be paid at 2008 Panel rates. For litigators there are two options for consideration: to maintain the current panel scheme; and extending the current Litigators’ Graduated Fee scheme, on the same basis as the Advocates’ Graduated Fee scheme detailed above.

The Law Society has hit back at the plans to extend the Litigators Graduated Fee Scheme to VHCCs. Robert Heslett, Law Society President, said it was a barely-tested scheme and not a viable option. “The LGFS has not been in place long enough to have been properly evaluated. There have been numerous problems with it. It underpays for certain types of serious and sexual assault case, and for cases which are prepared for trial but then result in a guilty plea”. He pointed to the operational difficulties in validating the pages of prosecution evidence on which the payment calculation depends, adding that the scheme needs to be made to work for the cases for which it was designed before it can be extended to additional cases. “The scheme does not have any mechanism to take account of the work on unused material or the management required on very high cost cases. It depends on a ‘swings and roundabouts’ principle, but as most firms will only handle one or two VHCC cases per year, the sample is not large enough for the swings and roundabouts effect to function and firms will be subject to a greater risk of incurring substantial losses on these cases.”

The Law Society also said that an extended advocates graduated fee scheme raises many challenges. It may not be attractive to advocates without addressing some of the structural issues currently under discussion. This could mean that advocates are less likely to take on cases under the proposed system which could have serious implications for clients being able to obtain representation in long running trials.

The consultation closes on 26 January 2010 and all interested parties are encouraged to respond. The full text of the consultation document is at:

https://consult.legalservices.gov.uk/inovem/gf2.ti/f/184610/3234053.1/pdf/-/VHCC%202010%20%20A%20Consultation%20Paper%20%20Dec%202009.pdf

In the eight years since her daughter Sarah was abducted and murdered by a paedophile, Sara Payne has become a familiar figure in British public life. In January she was appointed to the post of Victims’ Champion, a new independent public voice for victims of and witnesses to crime.

This summer Home Secretary Alan Johnson invited her “to undertake a short piece of work on rape as part of the consultation exercise on Violence Against Women and Girls (VAWG)”. This is in conjunction with Baroness Stern’s independent review, due to be completed by next February, into the way rape complaints are handled by public authorities in England and Wales. Baroness Stern is examining the whole process of a rape complaint from the moment a rape is first disclosed until the court has reached a verdict.

The Victims’ Champion has now published her report. Specifically she was asked to consider the factors that influence a rape victim to report to the police, what factors influence a rape victim to withdraw from the criminal justice system post report, and what could be done to improve the overall satisfaction of victims with the service they receive from the criminal justice system. Her report, which is based on focus groups with adult women rape victims as well as expert groups of police, prosecutors and specialists in sexual violence, highlights the inconsistent treatment of rape victims by different criminal justice agencies. The evidence shows that most victims are attacked in private, by someone known to them, and injuries are not common. But victims face a culture of disbelief from the police, who are still refusing to take complaints of rape seriously if the victims come from “the wrong part of town”, if they have been drinking or if they have made previous allegations.

Victims want to be believed when they disclose they have been raped. They commonly asked themselves whether they were to blame, whether they would be believed if they reported, and felt that a trial was effectively an assessment by a jury of whether they were lying or not. “I have not heard these views expressed about any other offence and certainly cannot imagine similar thoughts or feelings entering the head of a victim of burglary, for example”. The women she spoke to were clear that if they are not treated with dignity when first reporting rape, it is unlikely they would continue to support a prosecution. “Victims frequently expressed anger that their place in the criminal justice system is effectively as a witness in their own case. Many were disappointed that the prosecution represents the Crown, rather than the victim, in contrast to the defendant who has his own legal representation”. She makes a number of recommendations in her report, including better training for police and the Crown Prosecution Service, improvements to the quantity and quality of Sexual Assault Referral Centres and Independent Sexual Violence Advisers, improved information to victims when the prosecution decides a case will not proceed, and an awareness campaign to challenge public attitudes to rape and other forms of sexual violence.

And action already. The ‘Guardian’ this week reports that the country’s first dedicated rape intelligence unit has been set up within the Metropolitan police, promising to identify and track down serial attackers. A unit of officers trained in techniques usually used to tackle organised crime and terrorism, with an additional budget of £1.4m, will become part of what Scotland Yard says is now the biggest rape investigation squad in the world. Responding to widespread criticism earlier this year when shocking failings in investigating serial rapists were exposed, the Met says it has revolutionised and raised the status of its rape inquiry unit.

The full text of Sara Payne’s report ‘Rape: The Victim Experience Review’ is at:

http://www.homeoffice.gov.uk/documents/vawg-rape-review/rape-victim-experience.pdf?view=Binary

The standard of work expected of public prosecutors, at every stage of the prosecution process, has been published this week and is open for consultation. The consultation document on core quality standards for prosecutors covers 12 key areas, from providing advice to police before a charge to sentencing and appeal processes.

Prosecutors exercise powers on behalf of the public. They deliver a public service. And that requires prosecutors to deliver their service in accordance with a set of “publicly facing core quality standards”, which says DPP Keir Starmer “lie at the heart of ensuring that excellence is delivered as the norm throughout the national service. They will lay down the minimum in terms of quality and delivery that the public are entitled to expect from those who prosecute on their behalf”. The standards will cover every major aspect of CPS work, from protecting the public to advising the investigator; through to defining the standards of service in respect of every aspect of the prosecutor’s role in court; and from supporting victims and witnesses to dealing with complaints.

This is a time of change for the prosecution service. The Crown Prosecution Service (CPS) and the Revenue and Customs Prosecutions Office (RCPO) are merging. The aim is to provide for a more flexible and resilient organisation, claimed to be better placed to deal with specialist, organised, crime. The merged organisation will provide advice and prosecution services not only to the police, but also to the Serious Organised Crime Agency, Her Majesty’s Revenue and Customs and the UK Border Agency. Writing this week in the ‘Guardian’, Keir Starmer said that “the merged organisation will prosecute over 1.1 million cases a year. And its cases will range from extremely serious terrorist ones and international organised crime at one end to antisocial conduct and disorder at the other, not to mention the challenge of prosecuting fraud and financial crime and tackling violence against women”. Was that final category a hasty afterthought?

There is a pledge to use IT systems fully and to be willing to embrace technological advances. In future the electronic case file will allow all the current paperwork that supports a case to be made available electronically to all those who need to see it. Accepting that criminal justice is currently not delivered as effectively and efficiently as it should be, henceforth the electronic case file and electronic case management systems will “become the main currency in the criminal justice service”.

The consultation paper concludes that “a criminal justice service underpinned by the rule of law and respect for human rights is at the heart of modern democracy. A modern public prosecution service – focused on protecting the public, delivering justice and supporting victims and witnesses – is at the centre of such a service. Core quality standards will ensure that we deliver what is expected in every key aspect of our work”. Consultation is open until 18 January 2010, and the full text of ‘Public Prosecution Service: Setting the Standard’ is at:-

http://www.cps.gov.uk/news/articles/the_public_prosecution_service_-_setting_the_standard/