Monday, 15 December 2014

The Tuesday Truth



One of the most depressing aspects of the Government’s proposal to sell off 527 duty solicitor contracts is that most of the agencies in the Criminal Justice system and most of the public are unaware of the likely consequences of such proposals.

The disastrous consequences of this ill thought out restructuring will be exacerbated because it will coincide with substantial changes to procedure in both the Magistrates and Crown Court.

In the Magistrates Court, Transforming Summary Justice will be rolled out. In summary some of the highlights of this proposal are that:

1) Likely Not Guilty pleas will be listed 28 days after charge,

2) Prosecution preparation is to be front loaded so initial details of prosecution disclosure will be available in advance of the hearing,

3)  There must be a prosecution lawyer with decision making power at the first hearing

4)  Primary disclosure will be served on that date

5)  There should be greater scope for engagement between the defence and crown in advance of the hearing and proper progress

6) Guilty pleas to be listed 14 days after charge


In the crown court the traditional PCMH, which has effectively become the centrepiece for case management will be sidelined for an earlier Case Management hearing, probably 28 days after sending or allocation, there will also be a national early guilty plea scheme.

The consequences of the Crown Court changes are that defendants will probably have to enter their plea much earlier than now and potentially on less disclosure. Again the Crown will be asked to frontload their preparation so as to ensure these new deadlines are complied with.

Both these new schemes are linked and it is recognised that both will fail if the Crown cannot deliver.

However whilst all these changes in culture will be taking place the government will be awarding 527 duty solicitor contracts following a tender process. Firms can apply for more than one contract and therefore it is likely that no more than a third of the current firms will get a duty contract.

The Government’s own economic evidence suggests that most firms will not survive without a duty contract.

How does that affect the criminal justice system, the administration of justice and society at large?

Its simple really:

Many clients will not be able to choose the solicitor they trust as they will have gone out of business

The solicitor they are allocated may have more work at a lower price but that will mean they can only exist by using less experienced staff to provide important advice which could affect reputation and liberty

The vulnerable , mentally ill and young will be much more exposed to miscarriages of justice with the quality of their protection reduced

The traditional defence model will be replaced with a factory type model and the increased pressure to be ready for an earlier case management hearing at the Crown Court will come at a time when the defence will have the least experienced resources hence reducing proper engagement.

Clients who might plead guilty normally with a lawyer they trust may delay their plea hence increasing the number of hearings not reducing them

There will be an increase of litigants in person with experienced clients unwilling to be allocated a lawyer if their normal firm no longer exists

 The Government proposal is predicated on an assumption that firms getting a duty solicitor contract will give away 50% of their own client work, so really client choice may end up being an empty promise

The Government proposal also has a sub theme the deskilling of the defence. There is no longer a reference to the “duty solicitor”, instead  the “duty lawyer” who does not in fact even have to be a solicitor.

 The effect of these proposals is that over a period of time many experienced lawyers will either leave the profession or be consigned to “managing” far less experienced fee earners who through the forced economics of the proposal will be the front line fee earners.

For many years the contribution of solicitors has not been given the credit it deserves, these proposals will so restrict them financially that the whole system will suffer at a time of real change in process in courts

Whilst there is a desire to hasten the process in the crown court more defendants may delay a likely guilty plea increasing uncertainty for victims and increasing hearings.

The combination of the changes in process in court procedure and the allocation of duty contracts may well lead to chaos, unrepresented defendants, victims forced to wait longer than they might and giving evidence where they might not have needed to, the exact opposite of what the aforementioned schemes are designed to achieve. Justice in meltdown.

The Government think they can get away with this, it is not an issue that particularly engages the electorate and by the time the damage has been done it will be too late and Grayling will be wreaking havoc in another department

The tender process is a disgrace, Marks and Spencer would have trouble completing it in time let alone a small firm whose fee earners spend most of their time servicing their clients Big firms, medium firms and small firms have all complained about the tender.

The limited period for submission , the fact that it is over Christmas  and the confusing and unnecessarily demanding nature of the questions are all probably partly motivated by the fact that the LCCSA, CLSA and now at last the Law Society will not play ball.

The two representative organisations have announced they will JR the proposals and have forwarded a letter before action. The Law Society has done the same.

It is great that they are now involved and still offering financial support to the associations. Nevertheless it is crucial that the LCCSA and CLSA are parties to the litigation. Our position to the law society is similar but not identical in relation to our claim. The history of the discussions that have taken place between the MOJ and Law Society, many of the minutes of which I have seen, demand that should there be any negotiations at a later stage the LCCSA and CLSA MUST have a seat at the table which is only guaranteed by being a party to the litigation.

So I am afraid we need a bit more money, we secured most of our costs in the last JR, but it cost slightly more than anticipated and this JR with a wider ambit together with an application for interim relief will be more expensive.

The LCCSA and CLSA have led the profession in their fight against these proposals and it is partly this leadership and the victory in the JR that places us in the position of going into this litigation with the Law Society by our side. The claimants have instructed excellent solicitors in Kingsley Napley and Bindmans respectively and outstanding leading Counsel in Jason Coppel QC and Dinah Rose QC, a bit like Pele and Cruyff in their prime.

We need everyone to donate however small or large and we need these donations now. Anyone who has any type of investment or interest in a fair and accountable justice system should contribute. Please also forward the link for donation and this blog to others .

The fight cannot end here, please lobby your MP, your local Crown Court Judge, please forward this to your friends.

Tell them that if they are ever accused of something and cannot afford representation the options are bleak.

Tell them if they are the victim of a crime they may still have to experience lengthy and inappropriate delay

Tell them that if they care about access to justice ACT NOW BEFORE IT IS TOO LATE

1 comment:

  1. Presumably though, some firms will make this work? Fact is that a large proportion of people who end up being charged are in fact guilty. A large proportion DONT have mental health problems and are NOT vulnerable. The firms that are left will have their choice from the lawyers that remain surely? This whole two tier system is just a different way of structuring the market and paying for it? My reading of the last JR which you allegedly 'won' seemed to suggest that there had been a failure to consult on 2 reports and there should be a short consultation to remedy this, which there was. Hardly a victory