The deficiencies of the legal aid payment regime

first_img‘A breathtaking risk’ was the damning assessment of the cross-party constitutional affairs select committee of Lord Carter’s plan to scrap the hourly rate for fixed fees as a precursor to his vision of a market-driven economy in legal aid. However, it isn’t the fixed fees that appear to have done for Refugee and Migrant Justice (RMJ), which went into administration last week – at least according to the charity, which squarely blames its collapse on the Legal Services Commission’s practice of only paying up on the completion of cases. That is not the official line. Justice secretary Ken Clarke told MPs that the charity went under because it was ‘unable to manage its affairs’, whereas ‘every other organisation’ had coped with the transition to fixed fees. Putting aside for a moment the disputed circumstances of RMJ’s demise, there are some 10,000 asylum-seeking clients, including 900 lone children, who could be left without representation because of this failure. That is the nature of the ‘risk’, as vividly articulated by the MPs, when gaps dramatically appear in the threadbare fabric of social welfare law. Such a gap was narrowly avoided at the end of last year with the bailing out of South West London Law Centres. As we enter a new age of public sector austerity, we will increasingly see such breakdowns. When the new regime of fixed fees was introduced in 2008, a survey by the Law Centres Federation revealed that almost one in five law centres lived under the threat of closure and almost half were in serious debt. The group’s director, Julie Bishop, says that its members have since then ‘learnt to cope, but that isn’t to say that is our ideal system’. The group last year commissioned the New Economic Foundation to look at the new payment system and found that law centres had used up 70% of their reserves on average, essentially to finance cashflow. ‘What I don’t understand is why ministers are making public statements that contradict previous Ministry of Justice reports,’ says Bishop. Indeed, Clarke’s explicit and public rebuttal of RMJ’s own account of events – ‘it’s not a question of any late payments, RMJ were paid what was due’, he told MPs – jars with the MoJ’s own research contained in last June’s study of Legal Advice at Local Level. That document explicitly addressed the impact of cashflow problems on the not-for-profit sector. The fact that ministers are prepared to cut loose RMJ indicates that a line has been drawn. The fiasco also serves to illuminate the alarming deficiencies of the new regime. Fixed fees can operate to reward the speedy and efficient; in the same way that they can penalise the painstaking and the inefficient. That appears to be what is happening. Chief executive Caroline Slocock reckons RMJ’s income per client over the last two years has fallen by 46%. Her group has flagged up the LSC response to a Freedom of Information request, finding that almost one-third (29%) of (often notoriously complex) asylum cases are concluding after little work, generating twice the income that they would have generated under the hourly regime. Immigration lawyers in private practice complain about making a viable business from a £459 fixed fee, and delivering a quality service to vulnerable clients with complex cases and where English isn’t their first language. Alison Harvey, general secretary at the Immigration Law Practitioners Association, rebuts any suggestion that ‘everyone who is balancing their books is some kind of crook’. Under the Solicitors Code of Conduct, there is no penalty for cherry picking, but Harvey points out that lawyers inevitably take on more straightforward cases despite their commitment to providing a service to vulnerable but demanding clients. ‘What makes me mad is that lawyers’ time and effort would be better spent doing the complex cases to which their skills were suited,’ she says. At its worst, it is a system that incentivises dumbing down.last_img read more

Court figures show rise in FTSE 100 litigation

first_imgThe number of High Court cases involving FTSE 100 companies has risen 16% in the last year, research from legal information provider Sweet & Maxwell has revealed. In the year to 30 June 2010, the study shows there were 179 cases involving the FTSE 100, compared to 154 the previous year. Financial services companies, which account for 18% of the FTSE 100, were involved in more than half (58%) of these. Sweet & Maxwell said the rise in cases involving large companies indicated that the litigation arising from the economic downturn is yet to reach its peak. The research also found that the big four UK banks – Lloyds Banking Group, Barclays, Royal Bank of Scotland and HSBC – were the most frequent visitors to the High Court, accounting for 43% of all appearances by FTSE 100 companies in 2009/10. This figure is down on the 49% in the previous year. In 2009/10, Lloyds Banking Group topped the list of FTSE 100 companies to have litigated in the High Court, with 24 High Court appearances. Over the same period the previous year, the Group had 40 High Court appearances.last_img read more

Bach seeks to scupper 10% legal aid fee cut

first_imgFormer legal aid minister Lord Bach has tabled a House of Lords motion calling for the statutory instrument that introduced 10% cuts to legal aid lawyers’ fees this month to be annulled. Lord Bach made use of a little-used parliamentary procedure to secure a debate on the motion, which states: ‘The reduction in civil standard and graduated fees for legal help and help at court will seriously undermine access to justice, because it threatens the financial viability of already hard-pressed community legal practitioners who carry out an essential service to those least able to afford it, including the most vulnerable in our society.’ The motion will be debated in the Lords on 26 October, before the Legal Aid, Sentencing and Punishment of Offenders Bill reaches the upper house next month. The bill is scheduled to receive its third reading in the House of Commons next week. Bach said: ‘Community legal lawyers do a fantastic job for little reward. This crude 10% cut will threaten the future of many charities and firms which provide services to their local communities.’ Pointing to the closure of Law For All earlier this year, Bach said the legal aid fee cuts and planned scope changes were already having an impact on organisations. The Law Centres Federations has warned that 18 of its network of 56 legal advice centres are at risk of closure due to the £350m legal aid cuts being implemented by the Ministry of Justice. ‘Many people, including vulnerable groups rely on these charities and legal aid firms for advice to do with housing, employment, benefits, debt and other civil legal problems. Without them people facing every day legal problems will be denied access to justice,’ said Bach. Co-chair of the Legal Aid Practitioners Group, Bill Montague, said: ‘We welcome Lord Bach’s move as another step in the campaign and hope it will generate a meaningful debate that will enable other parliamentarians to add their voices to speak out against the irresponsible and rash cuts. ‘They are a massive gamble with the viability of a declining legal aid supplier base,’ he added.last_img read more

Vos populi

first_imgMr Justice Geoffrey Vos, former Bar Council chairman and one of the most esteemed lawyers of his generation, was in provocative form when delivering last week’s KPMG lecture on ‘The Role of UK Judges in the Success of UK plc’. Lamenting the UK’s penchant for self-criticism, he observed: ‘We are always the first to say what is bad about our society; for example that the August riots exemplify the problems in society about which nothing is being done, rather than, as they probably would in France and Germany, that such unrest was the one-off product of a long summer and some disruptive elements’. Like Barclays’ Bob Diamond, Sir Geoffrey also appears to believe the ‘time for banker remorse’ is over. ‘We must… limit the way in which we chastise [the banks] for what they do wrong, and take more trouble to support them in what they do right,’ the judge declared. Perhaps so. Alluding to ‘global economic paranoia’, Sir Geoffrey contrasted a recent 5% one-day fall in the FTSE with the trend-bucking announcement by Deloitte of an 8.4% hike in global revenues. Another arresting comparison this. Deloitte is one of KPMG’s bitter rivals among the Big Four beancounters. It’s a bit like eulogising Wayne Rooney at a meeting of Liverpool Supporters Club.last_img read more

Criminal evidence

first_imgAdmissibility – Defendant being charged, inter alia, with possession of cocaine with intent to supply – No defence being served by time of plea and case management hearing R v Newell: CA (Crim Div) (Sir Anthony May (president), Mrs Justice Dobbs, Mr Justice Underhill): 30 March 2012 Paul Jackson (assigned by the Registrar of Criminal Appeals) for the defendant; Robert Spencer-Bernard (instructed by the Crown Prosecution Service) for the Crown.center_img In 2009, the defendant’s cousin, X, who was the tenant of a flat, allowed the defendant to stay. Later in the year, X effectively moved out. In February 2010, officers of the landlords of the flat gained entry to it to enforce an eviction order against X. They found a quantity of white powder which was found to contain lignocaine, a cutting agent commonly used with cocaine. A further quantity of white power was also discovered which, upon analysis, was found to contain 26.6 grams of 66% cocaine. Also found were an empty box for digital mini scales, £400 in cash and pieces of paper showing names and amounts. The defendant was subsequently arrested. In November 2010, prior to trial, a plea and case management hearing (PCMH) took place, at which time no defence had been served. In response to the question on the PCMH form (the form), ‘if not clear from the defence statement, what are the real issues?’, the advocate for the defendant wrote ‘no possession’ (the statement). In April 2011, the defendant’s legal advisers were changed. A defence statement was served on the first day of the trial and stated, inter alia: ‘I accept possession of exhibit MLR/07 [the cocaine]. However, I deny that I was in possession of the cocaine with intent to supply.’ The defendant gave evidence in accordance with the defence statement. At the beginning of his cross-examination, counsel for the prosecution handed the form to the defendant and the judge, seeking to adduce what was stated therein, as it was inconsistent with the defendant’s defence. Counsel for the defendant objected. The judge ruled, inter alia, that what was on the form was no different to a defence statement signed on the defendant’s behalf by his solicitors in accordance with his instructions and that it was perfectly proper to cross-examine the defendant on the statement. When cross-examined on the form, the defendant accepted that the form had been completed by his original counsel and alleged that the words ‘no possession’ were the result of a misunderstanding by counsel. In the course of his summing up, the judge gave, inter alia, a Lucas direction in relation to the statement. The defendant was subsequently convicted, inter alia, of one count of possession of cocaine with intent to supply. The defendant appealed against conviction. The issue was whether the judge had been correct to admit as evidence the statement on the form. The questions that fell to be determined were: (i) whether the statement was admissible evidence; and (ii) if the statement was admissible evidence, whether the judge ought to have exercised his discretion under section 78 of the Police and Criminal Evidence Act 1984 to exclude it. Consideration was given, inter alia, to section 118(1) of the Criminal Justice Act 2003. The appeal would be allowed. (1) An advocate plainly had implied actual authority to do what was normally incidental, in the ordinary course of his profession, to the execution of the advocate’s express authority. Recording a matter on a PCMH form was incidental to that which the advocate had been authorised to do – conduct the defence of a client. Even if the advocate had no implied authority, as the client had said something different to what he had recorded, the advocate would have ostensible authority to do so with regard to the court (see [22] of the judgment). On the facts of the instant case, applying established principles, as what the court had been told at the PCMH had been said by counsel in the presence of the defendant, it had been admissible. It had not mattered that the defendant could call evidence to show that what had been said had not been said on instructions; the advocate had had ostensible authority to make the statement. The evidence was admissible even though the defendant could call evidence to show that it had been said without authority. Accordingly, the judge had been entitled to conclude that the statement made on the PCMH form had been in principle, as a matter of law, admissible at the trial before him (see [23], [24] of the judgment). (2) Provided that the case was conducted in accordance with the letter and spirit of the Criminal Procedure Rules, a statement written on a PCMH form should, in the exercise of the court’s discretion under section 78 of the act, not be admitted in evidence as a statement that could be used against the defendant. The information was provided to assist the court. There might be cases where it would be right not to exercise the discretion but to admit such statements. Those circumstances were fact-specific, but one example would be a case where there was no defence statement despite the judge having asked for one to be provided and an ambush attempted inconsistent with what was stated on the PCMH form. In such a case it would not be appropriate to exercise the discretion to refuse to admit what was stated on the form, if an adjournment to enable the prosecution to deal with the issue could be avoided. However, provided that the parties adhered to the letter and the spirit of the Criminal Procedure Rules and followed the practices outlined, such cases ought to be very rare (see [36] of the judgment). On the facts of the instant case, the judge ought not to have admitted the statement on the PCMH form as evidence against the defendant. That was partly for reasons connected with the good administration of justice, but primarily because of what happened at the trial. The defendant’s counsel had, by the time of the trial, produced a defence statement which had made the case clear and had admitted possession. The statement on the form had been put to the defendant in the witness box without any warning to his counsel. The prosecution was then seeking to say that the defendant’s previous position as recorded on the form had been a lie and to rely on that lie as evidence of his guilt. It was therefore a case where there had been no disadvantage to the prosecution; on the contrary, the prosecution had been seeking to use the statement to the detriment of the defendant. The way in which it had been done had been unfair to the defence. The discretion under section 78 of the act ought to have been exercised so as to refuse the admission of the statement. Accordingly, the conviction was not safe (see [37], [38] of the judgment). The conviction would be quashed (see [2], [38] of the judgment).last_img read more

A shot in the dark

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Building windmills in Cloud Cuckoo Land

first_imgStay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletters To continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGIN Subscribe now for unlimited access Get your free guest access  SIGN UP TODAY Subscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our communitylast_img read more

A fledgling workforce

first_imgTo continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGIN Subscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our community Subscribe now for unlimited access Get your free guest access  SIGN UP TODAY Stay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletterslast_img read more

A problem of our making

first_imgTo continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGIN Subscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our community Stay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletters Get your free guest access  SIGN UP TODAY Subscribe now for unlimited accesslast_img read more

Commercial property: We can’t go on like this

first_imgGet your free guest access  SIGN UP TODAY To continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGIN Subscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our community Stay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletters Subscribe now for unlimited accesslast_img read more