Lord Hunt of Wirral was commissioned by the Law Society in October 2008 to advise on what was needed to establish best modern practice in the regulation of solicitors. His terms of reference were:

‘In light of current and forthcoming changes in the Legal Services market, the differing needs of different types of client, current regulatory debates and the need to promote equality and diversity, to consider the appropriate regulatory rules, monitoring and enforcement regime to ensure high standards of integrity and professionalism for solicitors and their firms in all sectors, and to make recommendations.’

This week the Law Society published his report. In his ‘Welcome’ to the report, Lord Hunt acknowledged that the legal sector is undergoing a radical transformation. Alternative Business Structures will have to be assimilated into the legal regulatory system, the ever changing demands of clients will need to be satisfied, and English and Welsh law must maintain the high international reputation which provides so many business benefits for the UK. “For these, and many other reasons, it is critically important that the regulatory system is constantly revaluated to ensure it is fit to meet both new challenges, and long standing regulatory needs”.

Lord Hunt makes 88 specific recommendations, and there are four main themes in the report. He stresses that all firms must be regulated to the same standard, by a knowledgeable and credible regulator and in accordance with the well-established BRE principles of better regulation. But this does not mean that every firm should be treated in the same way. He advocates a system which he describes as Authorised Internal Regulation (AIR). AIR will be available to all firms, not just those concentrating on corporate work, who demonstrate their willingness and ability to set up internal governance standards that are robust enough to secure compliance. Secondly he recommends the extension of the regulatory net to include will writing, claims management companies and all of probate, as these are complex matters with potentially far reaching consequences.

Lord Hunt recommends that legal professionalism should be translated into regulatory principles. He says it is essential to base any regulatory system in a strong and transparent theoretical framework, ensuring that it has the necessary resilience and flexibility to adapt to the changing world in which it operates. His view is that legal professionalism, rooted firmly in the concept of the rule of law, provides a sound base for the regulator to build on. The fourth theme concerns the regulation of Alternative Business Structures (ABS). He does not oppose the 2011 launch date, as proposed by the Legal Services Board, but stresses the importance of getting it right. It is crucial that appropriate public and consumer safeguards are put in place. Regulators must be clear about the information they require, the scrutiny they intend to undertake, and how they will deal with regulatory breaches. He recommends that ABS should be subject to the same regulatory requirements that govern other law firms.

Bob Heslett, President of the Law Society, welcomed the report and said “Lord Hunt has set out an imaginative and thought provoking blueprint which I am confident will be invaluable to the SRA [Solicitors Regulatory Authority] as it charts its way forward for the future. We look forward to working closely with the SRA as it develops its approach.”
The full text of Lord Hunt’s report can be found at:

http://www.legalregulationreview.com/files/Legal%20Regulation%20Report%20FINAL.pdf

Debbie Purdy’s persistent pursuit of clarity has borne fruit. She wanted to know from the Crown Prosecution Service whether her husband would face prosecution should he help her to take her life in Switzerland. In a unanimous decision, the law lords ruled that she was entitled to such clarity, and instructed the DPP to clarify his position as to the factors that he regards as relevant for and against prosecution in this very special and carefully defined class of case.

The DPP, Keir Starmer QC, has this week produced his interim guidelines. At their launch he said “There are no guarantees against prosecution and it is my job to ensure that the most vulnerable people are protected while at the same time giving enough information to those people, like Ms Purdy, who want to be able to make informed decisions about what actions they may choose to take.” He went on to detail those factors in favour and against prosecution.

The public interest factors in favour of prosecution include: that the victim was under 18 years of age; or was adversely affected by a recognised mental illness or learning difficulty; did not have a clear, settled and informed wish to commit suicide or did not indicate unequivocally to the suspect that he or she wished to commit suicide; or did not have a terminal illness, or a severe and incurable physical disability, or a severe degenerative physical condition from which there was no possibility of recovery. As to the ‘suspect’, factors in favour of prosecution would be if the victim did not ask personally, on his or her own initiative, for the assistance of the suspect; the suspect was not wholly motivated by compassion or stood to gain in some way from the death of the victim; or persuaded, pressured or maliciously encouraged the victim to commit suicide, or exercised improper influence in the victim’s decision to do so.

The public interest factors against a prosecution include: that the victim had a clear, settled and informed wish to commit suicide, had indicated unequivocally to the suspect that he or she wished to commit suicide, had asked personally on his or her own initiative for the assistance of the suspect, and had a terminal illness or a severe and incurable physical disability or a severe degenerative physical condition from which there was no possibility of recovery. As to the ‘suspect’, factors against prosecution would be if the suspect was wholly motivated by compassion; was the spouse, partner or a close relative or a close personal friend of the victim, within the context of a long-term and supportive relationship; and the actions of the suspect, although sufficient to come within the definition of the offence, were of only minor assistance or influence, or the assistance which the suspect provided was as a consequence of their usual lawful employment.

Response to the guidelines has been mixed. According to ‘The Times’, Lord Falconer of Thoroton, a former Lord Chancellor and the first Justice Secretary, hailed the DPP’s guidelines as a “very, very significant step” and said he had “unquestionably changed the law”. Dignity in Dying, the assisted suicide campaign group, described the move as a “significant breakthrough for greater patient choice”. But Phyllis Bowman, executive officer of Right To Life, called the guidelines a “scandal”. “However much he has tried to cloak it, his guidelines outline an interim policy which in effect will make it legal to assist in a suicide,” she is reported as saying.

Keir Starmer said “I recognise how sensitive this area of law is and I respect the fact that there are many people who hold strong views on assisted suicide. I want to hear those views and that is why I have also launched a public consultation today. By considering as many views as possible, I can produce a final policy which is faithful to both the law and public feeling.” The public consultation will be open until 16 December, after which a summary of the consultation responses will be published. The finalised policy will be issued in Spring 2010.

The full text of the Interim Policy can be found at: http://www.cps.gov.uk/consultations/as_consultation.doc, and details of the consultation can be found at: http://www.cps.gov.uk/consultations/as_index.html

Very high cost cases (VHCCs) are those estimated to last more than 40 days at trial, or 25 days if involving complicated combinations of factors. Last year there were about 400 defendants funded by legal aid in 100 VHCC criminal cases at a total cost of £100 million. Defence teams are typically paid around £400,000 for such cases but costs in some, such as the Jubilee Line Fraud case, have run into several millions.

In an attempt to ensure best quality and value for the most expensive criminal legal aid cases, the Legal Services Commission established a very high cost cases (crime) panel due to run till July 2009. “We believe this panel offers real benefits to those signed up to it. They have the first opportunity to take on work worth in excess of £100m a year.” But, according to the ‘Guardian’, of the 2300 barristers invited to join only about 100 barristers and three QCs have so far signed up.

The sticking point would seem to be the capped fees offered. Under the new scheme, for preparation work a QC’s fees will range from £91 to £145 an hour, and for time spent in court a QC will get £476 a day. For a leading junior, the range is £79 to £127 an hour, with £390 a day for time spent in court. A junior acting alone will receive between £70 and £100 an hour, with £285 a day for time spent in court.

Peter Lodder, QC, senior criminal barrister and Chairman of the Criminal Bar Association, is reported in ‘The Times’ as condemning “these derisory levels of income…hourly rates do not encourage efficiency…a system geared to an efficient dispatch of justice should have an effective payment system.” At the heart of the dispute, he said, was the “driving down of fees to a level at which properly qualified people who have invested many years of training are simply not being properly remunerated”. As reported in the ‘Guardian’, he said that the full impact of the Bar’s boycott had not yet been felt but that the first serious trials requiring QCs were due to reach court in the new year.

The first setback for the LSC has already occurred,. The 17-year-old accused of shooting dead schoolboy Rhys Jones was left without a QC a month before the trial was due to start and his solicitor was working for free. The problem occurred because the Legal Services Commission initially insisted that the defendant’s lawyers worked for a fixed fee, but they have now made an exception and reverted to the old pay structure. The LSC’s director of high cost case contracting has acknowledged difficulties with forthcoming large trials, and there may have to be other exceptions in future.

It being the time of year for seasonal festivities it is not surprising that someone has come up with research into hangovers. Particularly in respect of ability to drive while suffering from one.

I suppose the best place to go for such research is among university students, and that is just what Brunel University have done. Although the sample group tested was unusually small, the results were remarkably uniform. A poor night’s sleep, low blood sugar and dehydration all markedly affect the ability to drive safely even if someone is within the drink-drive limit, the study found.

Eleven students were tested on a driving simulator while sober and again while suffering a hangover, though within the legal limit of alcohol in the blood. The two tests were compared and it was found that, on average, hungover drivers drove almost 10mph faster, left their lane four times as often and committed double the number of traffic violations like ignoring red lights or stop signs. The average speed for the sober test was 32.6mph which rose to 41.7mph while hungover. Sober drivers travelled 6.3% of the five-mile trip above the speed limit which rose to 26% while hungover. Traffic violations rose from an average of 3.9 for sober drivers to 8.5 for hungover drivers. Several representatives of the motoring press, including the Telegraph and Independent, replicated the tests and their results were universally similar to the test group. The Mail’s Sharon Marshall found the results “horribly real. It’s clear I am in no fit state to drive The terrifying thing is I would have passed a breathalyser test.”

The research was sponsored by insurers RSA. Their spokesman, Graham Johnston, said “What surprised us was that people were driving faster. The fact they were driving more erratically we’d expect. Not taking care, going through red lights, that’s more alarming.” He added “You may be legal, but be aware that anything that makes the driver less alert will make them a worse driver.” The message comes through loud and clear; driving the morning after is not a good thing to do.

Suicide is no longer a criminal offence in Britain, but assisting in someone else’s suicide most certainly is, with the possibility of a draconian sentence.

Complicity in suicide.
(1) A person who aids, abets, counsels or procures the suicide of another, or an attempt by another to commit suicide, shall be [guilty of an offence] …

Enabling Provision: s.2 Suicide Act 1961.
Triable Status: Indictable only.
Max. Sentence on Indictment: 14 years.

(See Criminal Offences Handbook (Anya Publishing) p.229)

All court cases concerning this subject are highly emotive, and the latest is no exception. Debbie Purdy is suffering from multiple sclerosis and facing the dilemma of when to take steps to kill herself or whether to wait until she needs help from her husband and risk his prosecution. According to ‘The Times’ she is considering going to Switzerland, where assisted suicide is legal, if her pain becomes unbearable, although “having to go to another country will be adding to my own grief and distress”. Her husband has said that he would assist her “and if necessary face a prison sentence, but I am not prepared to put him in this position.”

The DPP is making decisions to prosecute anyone who assists with a UK suicide, although no relative of the 100 UK citizens who have gone abroad to Dignitas clinics to die has been prosecuted. There is no written public guidance informing these decisions. Ms Purdy wants UK law clarified, and successfully appealed in June for a judicial review in the High Court on the grounds that the DPP had acted illegally by not providing such guidance. That appeal is now in progress. Her QC, David Pannick, accused the DPP of breaching Ms Purdy’s right to respect for her personal and family life under Article 8 of the European Convention on Human Rights by failing to publish a policy making clear the circumstances in which he would, or would not, allow a prosecution to proceed. Lawyers for the DPP said that the clear legal provisions of the Suicide Act 1961 provide sufficient information when coupled with the guidance contained in the Code for Crown Prosecutors. The case continues.

Last month, Justice Minister Maria Eagle made a statement on clarifying the law on assisting suicide to deal with the misuse of the internet, in particular about suicide websites and the influence they may have over vulnerable people, especially young people. The Minister accepted that “the complexity of the law in this area stems from the unusual nature of the offence in section 2 of the Suicide Act which provides accessory liability in respect of something which is not of itself criminal.” She went on to say “we have concluded that the scope of the current law should not be extended but that the existing statutory language of section 2 of the Suicide Act should be simplified and modernised in a way which will make it clearer for everyone to understand.” Legislation to update the Suicide Act in this respect was promised “as soon as Parliamentary time allows.”
So no change in the law, just making it all clearer.

Conditional Fee Agreements, also known as ‘no win, no fee’, are alternative methods of funding litigation, introduced widely in 2000 when legal aid for personal injury claims was axed. In this type of funding the solicitors share the risk in that if a case is lost the solicitor will not be paid but if the case is won the solicitor will charge a success fee.
CFAs can be used in all civil litigation except for family cases and provide access to justice for those who could not afford to pursue litigation and who are not eligible for public funding. But according to ‘Press Gazette’ a number the rich and famous have taken advantage of the CFA scheme.

As reported in ‘The Times’, organisations such as Citizens Advice Bureau have been urging a review of the scheme, saying that it is not widening access to justice in the way intended – in fact the actual number of claims has fallen since ‘no win, no fee’ schemes were introduced. The complex legal and financial processes involved are often misunderstood and consumers are misled into thinking the system will be genuinely ‘no win, no fee’ but can often find that costs are hidden and unpredictable. Another criticism is that these deals can create “perverse incentives for the legal profession” and encourage the cherry-picking of high-value cases with a good chance of success, leaving the smaller claims.
The Ministry of Justice has commissioned a review of the arrangements in England and Wales. Justice Minister Bridget Prentice said: “No win, no fee arrangements are vital in helping to give the public a voice in courts. However, we are aware of growing concerns that they may not always be operating in the interests of access to justice. We feel that now is the appropriate time for a comprehensive, objective and evidence based examination of the operation of no win, no fee arrangements in relation to personal injury, employment and defamation cases.”

Jack Straw has made his views clear. Addressing the Labour Conference in Manchester last week he said “I am concerned about …‘no win, no fee’ arrangements. It’s claimed they have provided greater access to justice, but the behaviour of some lawyers in ramping up their fees in these cases is nothing short of scandalous. So I am going to address this and consider whether to cap more tightly the level of success fees that lawyers can charge.”

The review is being led by Professor Richard Moorhead, Deputy Head of Cardiff Law School. He is due to report to ministers in the autumn.

The Legal Services Commission has issued a press release to all Crime Contract holders regarding the recording of travel time in Police Station and Magistrates Court cases.

• From 1st July 2008, providers do not need to record travel time in police station cases unless those cases are classed as exceptional.
• From 1st July 2008, providers do not need to record travel time in magistrates court cases in the 16 main urban areas as this is already allowed for in the fee.

However…

1. Given that you don’t always know when a police station case is going exceptional and
2. You need to be watching all the costs of providing legal aid work very closely

we would advise iLaw users not to ditch the recording of this time just yet.

One of the most important things that iLaw can give you is a complete understanding of how much it costs your firm to provide legal aid work under contract. It helps you now with issues like forecasting cash flow / work in progress and forward planning and in the future when it comes to competitive tendering. All of this help needs good data from your team in the form of accurate time recording so hiding any costs will skew the quality of the information iLaw can give you. The most successful firms are those who are recording and monitoring the cost of everything as it enables them to make good business decisions in time. So use iLaw to its maximum and keep recording your time well.