Up to 75% of criminal legal aid firms will be removed from the market under far-reaching reforms set to be implemented from summer 2011. The Ministry of Justice has announced new proposals for the tendering of criminal legal aid services with the aim of delivering significant savings to taxpayers and a more sustainable future for the legal aid budget It is claimed that the proposed new tendering process would also lead to greater efficiencies for suppliers enabling them to be profitable and sustainable, whilst ensuring that legal aid is available to those most in need.

The proposals would see the criminal legal aid market restructured so that there are a smaller number of large contracts contracted across a Criminal Justice Area, with multiple contracts let in each CJS area. In future there are likely to be no more than eight to ten contracts per CJS area. Arguments are advanced for moving quickly towards a consolidated market that will enable firms to remain viable through access to greater volumes of work. Individuals would continue to have a choice of legal representatives from among the pool of providers who hold contracts. Under the proposed model, contracts would be let for the full range of criminal defence work from the police station through to the Crown Court, with cases followed through to their conclusion. All contracts would include a share of police station and magistrates’ court duty work. The claim is that contract holders would therefore have greater access to the higher value, more profitable work, including the ability to undertake Very High Cost Cases.

In an interview with the ‘Law Gazette’, legal aid minister Lord Bach said: “These proposals are likely to affect a large number of small and medium-sized firms, but the current arrangements are unsustainable. Solicitors have been telling us for some time that the amount they get from legal aid is not enough to keep them profitable. These plans will generate greater efficiencies for suppliers, help people access good advice, and get a better deal for the taxpayer.” He estimated that no more than 500 firms will get contracts, which would mean that up to 75% of the 1,700 firms doing criminal legal aid work face an exit from the market. At the launch of the proposals Jack Straw said: “We have a duty to ensure that the legal aid budget is used effectively and efficiently on behalf of the taxpayer. Even with the necessary savings and reforms, our system of legal aid – civil and criminal – will still be far and away the best funded in the world.”

Responding to the new proposals, Law Society President Robert Heslett said: “We have long argued that the current situation is not sustainable in the medium to long term. We agree with the Ministry that reform is needed”. But he added: “The model proposed by the Ministry bears little resemblance to the market as it is currently structured, and it is not clear how, nor how quickly any move to such a model could be implemented without causing serious disruption to service provision. We do not have an economic environment in which firms will find it easy to make the necessary investment to expand as much as would be required.”

The full text of the MoJ report “Restructuring the delivery of criminal defence services” can be found at:

http://www.justice.gov.uk/publications/docs/restructuring-delivery-criminal-defence-services.pdf

That was the question posed by the Ministry of Justice. Even though juries decide less than 1% of all criminal cases in England and Wales, defendants in these cases are charged with the most serious criminal offences and face the greatest possible loss of liberty. The fairness of jury decision-making is of fundamental importance to the criminal justice system. The MoJ  therefore commissioned research from a University College London team led by Professor Cheryl Thomas, who presented their report last week. And the broad conclusion is that juries are indeed fair and efficient.

 The scope of  the UCL research is impressive. It involved case simulation with real juries at Crown Courts (involving 797 jurors on 68 juries), large-scale analysis of all actual jury verdicts in 2006–08 (over 68,000 verdicts) and post-verdict survey of jurors (668 jurors in 62 cases). As to efficiency, once a jury is sworn it reaches a verdict by deliberation on 89% of all charges (judges direct jury verdicts on 11% of charges) and they reach verdicts on virtually all charges (only 0.6% of all verdicts are hung juries). Juries convict on almost two-thirds (64%) of all charges presented to them and are rarely discharged (less than 1% of sworn juries).

 The research examined how fair the jury decision-making process is, specifically whether all- white juries discriminate against BME defendants, who are three and half times more likely to face a jury verdict in the Crown Court relative to their representation in the general population, and whether jurors racially stereotype defendants. The key finding was that verdicts of all-white juries do not discriminate against BME defendants. Jury verdicts showed only small differences based on defendant ethnicity. White and Asian defendants both had a 63% jury conviction rate; Black defendants had a 67% jury conviction rate.

 On specific offences, the category of homicide-related offences has some of the lowest jury conviction rates (threatening to kill 36%, manslaughter 48%, attempted murder 47%) but also some of the highest jury conviction rates (death by dangerous driving 85%, murder 77%). Offences where the strongest direct evidence is likely to exist against a defendant appear to have the highest conviction rates (making indecent photographs of a child 89%, drugs possession with intent to supply 84%, death by dangerous driving 85%). Contrary to popular belief and previous government reports, juries actually convict more often than they acquit in rape cases (55% jury conviction rate). Other serious offences (attempted murder, manslaughter, GBH) have lower jury conviction rates than rape.

 The team also looked at whether or not jurors understood judge’s legal advice. Most jurors at Blackfriars (69%) and Winchester (68%) felt they were able to understand the directions, while most jurors at Nottingham (51%) felt the directions were difficult to understand. While over half of the jurors perceived the judge’s directions as easy to understand, only a minority (31%) actually understood the directions fully in the legal terms used by the judge. Younger jurors were better able than older jurors to comprehend the legal instructions, with comprehension of directions on the law declining as the age of the juror increased. The review also found that in high profile cases almost three-quarters of jurors will be aware of media coverage of their case, and 20% of jurors said they found it difficult to put these reports out of their mind while serving as a juror. All jurors who looked for information about their case during the trial looked on the internet, thereby admitting to something they should have been told by the judge not to do.  

The full text of this fascinating report ‘Are Juries Fair?’ can be found at:

http://www.justice.gov.uk/about/docs/are-juries-fair-research.pdf

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 

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