On the 5th March 2013 Justice Secretary Chris Grayling announced that in April, the Government will be consulting on the introduction of price competition for Criminal Defence Services. This will be the third occasion on which the Ministry of Justice has proposed price competition in the last five years.
And yet, due to measures introduced by successive governments the Department of Justice spends less on criminal legal aid than was spent 10 years ago. Savings have been achieved through the introduction of graduated or fixed fees for almost all areas of criminal defence work, means testing in the Magistrates and the Crown Court, the abolition of committal fees, hefty reductions in fees paid to Barristers as well as measures announced by the Coalition as part of their austerity package in November 2010 intended to save a further £100m. At no stage during the last 10 years has there ever been a suggestion of increasing the rates of remuneration for practitioners.
The introduction of fixed fees has meant that lawyers have sometimes found ways of working more efficiently on cases. However, there is a limit to how far this can go and most would agree that there is no room for further efficiencies. Increasingly, clients are realising that if they want the best from their legal representative they will have to pay for it, irrespective of whether they might be entitled to legal aid.
For example, free representation is available to anyone at a Police Station irrespective of means, however, the payment for attending a police station is modest and may involve a further attendance several weeks later for no extra payment. There’s no payment for work undertaken between police station visits and increasingly clients are looking at paying a lawyer so as to properly prepare themselves for what is an extremely stressful but absolutely crucial stage of the criminal process.
In the Magistrates Court the lower standard fee for a trial is very low with no payment in respect of travelling or waiting time.
In the Crown Court the Defence team will be paid according to the number of pages on a case. This very crude assessment takes no account of defence enquiries, the amount of unused material in the case, language difficulties, and the fact that a client may have mental health problems or be in custody and require attendance in prison. In some cases it may no longer be economically viable to represent a client on a legally aided basis.
Legal Aid vs Private Funding
Increasingly, defendants are realising that to take control of the preparation of their case, they are better paying for the services of their Legal team even if they are entitled to public funding. Work levels can be agreed, the fee earner dealing with the case can be established at the outset as can choice of counsel in the Crown Court.
Defendants look at the consequences of conviction. Important factors include the risk of custody, loss of reputation, effect upon employment, liability to confiscation if convicted. In certain cases there are additional consequences such as Directors Disqualification, the possibility of a Serious Crime Prevention Order (SCPO), or the Sex Offenders Register.
But what of the Defendant who is entitled to legal aid and cannot afford an alternative? Most firms would argue that the service they receive will nevertheless be an excellent one. For the time being at least let us hope this is true, but with the possible introduction of price competition and the so called ‘race to the bottom’ whereby firms compete to work for the lowest price, common sense dictates that in the future there is going to be a two tier service of criminal defence representation – one service for those who pay for it and one service for the legally aided defendants. And then, many years later we will come to realise, if statistics become available, that justice is available for all but better justice is available for those who pay.