This paper sets out for consultation proposed changes to the Criminal Defence Service . These changes are designed to ensure that the services delivered to clients add value to the process and that the Criminal Defence Service delivers effective and sustainable value for money. The consultation is aimed at both professionals and members of the public in England and Wales. This consultation is being conducted in line with the Code of Practice on Written Consultation issued by the Cabinet Office. It falls within the scope of the Code. The Code criteria set out in Annex A have been followed.
Copies of the consultation paper are being sent to:
the judiciary;
Law Society and Bar Council and other professional and representative bodies;
Citizens Advice (formerly the National Association of Citizens' Advice Bureaux)
HM Treasury , Cabinet Office, Home Office, Crown Prosecution Service, Court Service, Whitehall Prosecutors' Group, Legal Services Commission, Legal Services Ombudsman and the Justices' Clerks Society.
This list is an indication of the recipients of the consultation paper; a full list is available on request from Ms Ebere Chukwu (see section on contact details).
Please send your response by 1 August 2003 to:
Ms Ebere Chukwu
Public Legal Services Division
Lord Chancellor's Department
Selborne House
54-60 Victoria Street
London SW1E 6QW
Tel: 0207 210 8703
Fax: 0207 210 7777
Email: Ebere Chukwu
We should appreciate receiving responses to this consultation (if possible by e-mail) in MS Word.
Representative groups are asked to give a summary of the people and organisations they represent when they respond.
The Department may wish to publish responses to this consultation document in due course. Please ensure your response is marked clearly if you wish your response or name to be kept confidential. Confidential responses will be included in any statistical summary of numbers of comments received and views expressed.
Further copies of this consultation paper can be obtained from Ms Ebere Chukwu at the above address or by phoning 020-7210-8703.
The Government is committed to the provision of publicly funded legal services as a means of promoting social justice, economic well being and tackling social exclusion. However, as with all Government programmes, the Government is under a duty to ensure that the taxpayer receives value for money in relation to public service expenditure. Legal aid has to compete with other calls on taxpayers' money, such as schools and hospitals. Any efficient publicly funded system of legal aid must be clearly focused on eliminating duplication and waste where they exist and delivering efficient, effective and sustainable services within budget.
The old criminal legal aid scheme was highly fragmented and suffered from duplication and delay and escalating cost. It was replaced in April 2001 by the Criminal Defence Service (CDS), which is administered by the Legal Services Commission. The CDS has focused on securing better quality and value for money, by cutting out waste and duplication and introducing more efficient and streamlined ways of procuring services.
We have already taken considerable steps in this direction. For example, greater efficiency and control will be introduced through full implementation of the new scheme for dealing with Very High Cost Criminal Cases (VHCCCs) which is described in more detail at Section 1 (below). These are cases which are estimated to cost over £150,000 or last more than 25 days and they account for a significant proportion of Crown Court legal aid expenditure. Under the new scheme, which we consulted upon in 1999, all eligible cases will be brought under Individual Case Contracts from 1 April 2004 and they will be managed by a dedicated Unit at the LSC. It is estimated that the greater control that this will introduce will bring extensive savings and greater efficiency.
However, although this provides a good example of the type of savings that can be achieved by introducing greater control of process, we believe that there remains scope to achieve further control of expenditure by introducing greater efficiency into the CDS. We know that there has been a significant increase in expenditure in the CDS over the last year but the number of people receiving CDS funding has actually fallen substantially. We also know that legal aid has risen from £1, 525 million in 1997/98 up to a figure of around £1,915 million in the last financial year. The growth in CDS expenditure as a proportion of the legal aid budget is summarised in Annex B.
We believe that there is evidence of duplication of scope and waste of resources within the current CDS scheme, which we have a duty to address. The public has a right to expect the Government to be rigorous in ensuring that the services delivered to clients are obtained at the best possible price, that waste and duplication are removed from the scheme, and, most importantly, that the services can be seen to add value to the process by advancing the interests of the client.
Given this, we propose to revise the scope of the scheme to ensure it is firmly focused on what we believe are the core functions of a Criminal Defence Service, which are to ensure that people have the right to a fair trial and that people accused of a crime have their rights protected and are treated fairly. The proposals in this paper will ensure that these resources are focused primarily in two areas:
advice in the police station where such advice is necessary to protect and advance the client's interests
representation in court where the interests of justice require such representation.
Details of the proposals are set out below and the estimated savings are set out in Annex C.
These proposals demonstrate the Government's commitment to delivering increased efficiency and value for money within the CDS. However this forms only a part of the Government's commitment to improving and modernising the Criminal Justice System as a whole. For example, the Crown Prosecution Service (CPS) last year piloted an early-charging scheme in which the CPS would determine the charge to be brought against a suspect in all but minor cases, thereby ensuring consistent evidential and public interest tests throughout the process and a reduction in delay. This scheme (which was recommended in Lord Justice Auld's Review of Criminal Courts in England and Wales) is currently being evaluated. We are confident that the proposals contained in this paper will not impact adversely upon this scheme.
We invite respondents to comment on what impact refocusing the scope of the scheme would have on clients. Respondents are also invited to comment upon what impact they believe implementation of the proposals would have on the wider Criminal Justice System. We also invite respondents' views on what impact they believe the proposals would have on businesses, charities and the voluntary sector.
1.1.1 Very High Cost Criminal Cases (VHCCCs) are cases that are estimated will last over 25 days at trial, or cost more than £150,000. VHCCCs consume a disproportionate amount of Crown Court legal aid expenditure: it is estimated that the top 1% of Crown Court cases by volume account for 49% of that expenditure. They are a major driver in the growth in average costs in criminal cases. It is therefore essential to bring the costs of VHCCCs under control if we are to achieve our aim of delivering a modern, sustainable and cost-efficient Criminal Defence Service. With this in mind the August 1999 consultation paper 'Ensuring quality and controlling cost in Very High Cost Criminal Cases' set out proposals to achieve this aim.
1.1.2 From April 2001 the Legal Services Commission has had the authority to require VHCCCs to proceed by way of Individual Case Contract (ICC). ICCs take the form of payments for different stages of the case, which are negotiated between the defence solicitor and the Legal Services Commission.
1.1.3 A Criminal High Cost Cases Unit to manage the cases has been established at the LSC and 141 VHCCC contracts have been signed since April 2001. Counsel has been contracted in 103 of those cases and 54 cases have ended.
1.1.4 Evaluation of the scheme has confirmed its success in controlling costs in VHCCCs and it will now be fully implemented. The Criminal High Cost Cases Unit is currently being expanded to ensure that all eligible cases will be taken under contract from 1 April 2004. This will bring Resource Accounting Budget (RAB) savings of £31m (2003-04), £73m (2004-05), and £89m (2005-06). In addition, the professions benefit because they are paid as they carry out the work, rather than at the end of the case.
1.1.5 We believe that this scheme represents an excellent model for the type of increased efficiency and control of costs that can be achieved through delivering more streamlined, focused and sustainable ways of working within the CDS. This paper sets out a range of proposals to build upon this model.
2.1.1 Police station advice is available to any individual arrested or acting as a volunteer whilst they are at the police station regardless of the seriousness of the matter. An individual's right to free advice is also made clear in the Police and Criminal Evidence Act 1984 (PACE) Codes of Practice . Advice is provided either by a duty solicitor or a solicitor of the client's own choice.
2.1.2 Advice may be given over the telephone only or by a solicitor or an accredited representative attending the police station.
2.1.3 The solicitor's role in the police station is, as Code C of PACE states, "to protect and advance the rights of his client". This role is fundamental to a fair criminal justice system. However we believe that CDS is currently funding solicitors to provide advice in circumstances where they cannot advance the interests of their clients.
2.1.4 For example, solicitors are currently paid to attend the police station to provide advice for drink-driving suspects who are at the police station solely for blood or urine tests, where solicitors can provide no worthwhile advice. A further example is where suspects are arrested on warrant, for example for failure to attend court, where they will simply be held by the police and produced at court the following day. In both examples solicitors can give the client free advice (at a cost to the taxpayer of up to £69.05 if the advice is given outside office hours) but, in practice, the solicitor can do nothing for the client.
2.1.5 In such circumstances an individual would continue to have a right to request the attendance of a solicitor, but they would not be eligible for free advice - they would have to seek advice on a private client basis. Free police station advice would however continue to be funded in circumstances where this is necessary to protect and advance the clients' interests.
2.1.6 An alternative approach would be to leave these circumstances within the scope of the scheme but to restrict advice to advice given over the telephone, rather than (as at present) by the solicitor's personal attendance.
2.1.7 In addition we will wish to examine whether all of the activities currently undertaken by legal advisers at the police station under the scheme meet the test of protecting and advancing the rights of the client. One example is remaining at the police station whilst the client is fingerprinted.
2.1.8 We would welcome respondents' views on the following questions:
Should it continue to be possible for advice and assistance to be funded where it does not clearly protect and advance the client's rights, or should this be changed?
Do you consider these proposals would adversely affect the rights of clients? If so, how?
What type(s) of work should still be funded?
What impact would this proposal have on businesses (including solicitors) charities and the voluntary sector?
3.1.1 Advice and assistance is also available in both pre- and post-charge in criminal cases, subject to merits and means tests. The merits test is a low hurdle. Advice and assistance is available on legal issues concerning English law and where there is "sufficient benefit" to the client, having regard to the circumstances of the case, including the personal circumstances of the client, to justify the work. The means test is set broadly at the income support level.
3.1.2 Advice and assistance is used either to provide stand-alone advice or as a supplement to other types of help under the CDS scheme. Pre-charge, it is used to provide help to people being investigated by the police where help cannot be provided under the police station advice scheme because the client was not interviewed in the police station.
3.1.3 Post-charge advice and assistance is used to provide advice or prepare the case once a client has been charged but before the first hearing when either a Representation Order is granted or early hearing advocacy assistance provided. It is also used to provide help to people who are not being helped through representation in court.
3.1.4 We have no plans to change the pre-charge advice scheme. As for the post-charge scheme advice and assistance at the proceedings stage effectively fills gaps between charge and the first hearing, where a representation order is commonly granted or advocacy assistance made available. Representation orders can be applied for much earlier than the first appearance and we will encourage defendants and their solicitors to do so. With representation available where the interests of justice merit it, it is plainly wrong in principle to provide the same service where representation would not be granted if it were applied for. We therefore propose to abolish all advice and assistance in this class of work. Our intention is that only cases which are of some seriousness (i.e. pass the interests of justice test) should get legal aid. This provision currently allows legal aid for non-serious cases, for example motoring offences where the only possible penalty is a fine.
3.1.5 In order to reduce the possibility of delay in cases which do meet the interests of justice test we will introduce arrangements for solicitors to undertake work in cases before the grant of a Representation Order and be paid for it as a part of the Representation Order claim where such an Order is subsequently granted.
3.1.6 We would welcome respondents' views on the following questions:
What impact would the proposal have upon clients?
.Are there specific categories of work where advice and assistance should remain available to provide further assistance to a client who has been advised in the police station (because the work is necessary to ensure that the clients rights are advanced and protected) but which cannot be undertaken whilst the adviser is in the police station?
Is there a need to retain advice and assistance for particular categories of vulnerable client, for example those with a mental incapacity, in the wider interests of justice?
What impact would the proposal have upon the behaviour of defendants and the administration of justice?
4.1.1 The court duty solicitor scheme puts defence lawyers in to magistrates' courts to be available to provide advice, assistance and limited representation in a defined range of cases. Solicitors attend court in accordance with rotas prepared by the Commission, or in less busy courts can be specifically called in. Solicitors are paid for the time spent at court, irrespective of whether they are waiting, advising or representing clients during that time. It is also currently possible for cases that do not meet the interests of justice test to receive help under the court duty solicitor scheme. We believe that this does not represent an efficient use of public funds and we believe there is scope for targeting the scheme more effectively on priority cases.
4.1.2 For example the scheme could be focused more closely on such priority cases by -
amending the scope of the scheme to remove some categories of case currently covered, for example representing clients who are not in custody in non-imprisonable cases
applying an interests of justice test before representation can be provided
removing the ability to apply for representation orders while being court duty solicitor
through management action by the LSC, ensuring that the periods of time for which duty solicitors are deployed at court are closely aligned with the times at which courts are dealing with cases falling within the scope of the scheme.
4.1.3 We would welcome respondents' views on the following questions:
What impact would restricting the court duty solicitor scheme have upon the rights of defendants?
What impact do you consider restricting the court duty solicitor scheme would have on the administration of the magistrates' courts?
What impact do you consider this proposal would have upon the number of defendants appearing without representation?
Should it continue to be possible for cases that do not meet the interests of justice test to receive help under the court duty solicitor scheme? If so, why?
5.1.1 The purpose of providing representation at early hearings (through advocacy assistance) was to ensure that solicitors would be able to attend Narey first hearings for clients in cases which would be eligible for an order, in the knowledge that they would be paid for attending. At the time it was introduced, this was necessary because the means test for legal aid orders meant that courts could not make an immediate decision.
5.1.2 However, we are also providing representation under these arrangements in two other ways: at first hearings in minor cases that do not meet the interests of justice test, and at second hearings in cases where the client pleads guilty on the first hearing and the case is adjourned for sentencing. Now that the means test has been abolished, the courts are in a position to make an immediate decision on representation. Advocacy assistance in these circumstances is an undesirable duplication of scope, and its purpose has gone.
5.1.3 We propose to abolish advocacy assistance altogether in these cases, leaving representation orders as the only way clients can get advocacy services. Solicitors would be able to appear at first hearings and claim for the work as pre-order work if a representation order was subsequently granted. This would, effectively, require them to apply the interests of justice test themselves when deciding whether to appear at a first hearing, since they would receive payment for attendance only in cases where the court agreed the test was met and granted an order.
5.1.4 We would welcome respondents' views on the following questions:
Do you agree advocacy assistance should be abolished for early hearings? If not, could you give your reasons?
What impact do you consider this proposal will have on the administration of justice and clients' rights?
6.1.1 Since the abolition of the means test in stages in October 2000 and April 2001, there has been a marked increase in the proportion of cases getting representation orders. There is inconclusive evidence that the interests of justice test is not working as it should be. The reasons are various, but the main one appears to be that courts tend to consider the theoretical sentence rather than the one the individual defendant is likely to receive, in deciding whether representation is in the interests of justice at the very outset of a case.
6.1.2 This is mainly a matter of custody being the likely sentence. Loss of livelihood plays a lesser part, chiefly in motoring cases, and other factors such as serious damage to reputation or language difficulties appear to play little part. There is also some evidence of misunderstandings over the purpose of the Human Rights Act. However, we stress that the interests of justice test is not the only reason for the increase in grant rates. Other reasons for the increase appear to be largely a result of reforms to and changes in the CJS generally.
6.1.3 We have issued revised guidance to the courts, reminding them of the terms of the interests of justice test and urging them to consider cases carefully before deciding whether to grant representation. Nonetheless, more work is needed on the reasons for the increase in grant, and we intend to carry out more research over the next few months.
6.1.4 We would be interested as well in respondents' views on the underlying reasons for the increase in the proportion of cases getting representation orders. We would also welcome views on what measures can be taken, bearing in mind the necessarily limited amount of public money available to the CDS, to ensure that it is able to operate within agreed budgets and deliver value for money. For example, should we consider restricting the interests of justice test itself to cases where imprisonment would be the likely sentence?
6.1.5 We would welcome respondents' views on the following questions:
What do you consider to be the reasons for the increase in the proportion of cases now passing the interests of justice test?
What measures can be taken by CDS to address this increase and ensure value for money for the taxpayer?
If the interests of justice test were to be restricted, what impact would this have on the rights of defendants and the operation of justice?
7.1.1 Recovery of Defence Costs Orders can currently be made at the end of a case at the courts' discretion where an individual has received representation in criminal proceedings funded as part of the CDS (other than in exceptional cases, this applies only to defendants who have been found guilty). There has, however, been criticism that the discretionary nature of RDCOs has resulted in widely different practice in various courts leading to accusations of unfairness.
7.1.2 We propose to address this by reducing the courts' discretion over their imposition. A stiffer system would require an RDCO in any case where the defendant was convicted (subject to ability to pay) or failed to provide information about his means, while retaining the possibility of an order on acquittal. This would address the problems of unfairness and inconsistency and also provide greater value for money for the taxpayer.
7.1.3 We would welcome respondents' views on the following questions:
Is the current discretionary system suitable, or should it be replaced?
What impact would the proposal have upon the administration of justice and the rights of defendants?
What impact would the proposal have upon business (including solicitors) charities or the voluntary sector?
We would welcome responses to the following questions set out in this consultation paper:
Should it continue to be possible for advice and assistance to be funded where it does not clearly protect and advance the client's rights, or should this be changed?
Do you consider the proposals to reduce the scope of free police station advice would adversely affect the rights of clients? If so, how?
What type(s) of police station advice should still be funded?
What impact would reducing the scope of free police station advice have on businesses (including solicitors) charities and the voluntary sector?
What impact would removing stand-alone advice and assistance have upon clients?
Are there specific categories of work where advice and assistance should remain available?
Is there a need to retain advice and assistance for particular categories of vulnerable client?
What impact would removing stand-alone advice and assistance have upon the behaviour of defendants and the administration of justice?
What impact would restricting the court duty solicitor scheme have upon the rights of defendants?
What impact do you consider restricting the court duty solicitor scheme would have on the administration of the magistrates' courts?
What impact do you consider restricting the court duty solicitor scheme would have upon the number of defendants appearing without representation?
Should it continue to be possible for cases that do not meet the interests of justice test to receive help under the court duty solicitor scheme? If so, why?
Do you agree that advocacy assistance should be abolished for early hearings? If not, could you give your reasons?
What impact would abolishing advocacy assistance for early hearings have on the administration of justice and clients' rights?
What do you consider to be the reasons for the increase in the proportion of cases now passing the interests of justice test?
What measures can be taken by CDS to address this increase and ensure value for money for the taxpayer?
If the interests of justice test were to be restricted, what impact would this have on the rights of defendants and the operation of justice?
Is the current discretionary system of Recovery of Defence Costs Orders (RDCOs) suitable, or should it be replaced?
What impact would strengthening the operation of RDCOs have upon the administration of justice and the rights of defendants?
What impact would strengthening the operation of RDCOs have upon business (including solicitors) charities or the voluntary sector?
Name .
Organisation:
Address:
If you are a representative group please give a summary of the people and organisations you represent
Please send your completed response to:
Ms Ebere Chukwu
Lord Chancellor's Department
Public Legal Services Division
3RD Floor East
Selborne House
54-60 Victoria Street
London SW1E 6QW
Tel: 0207 210 8703
Fax: 0207 210 7777
Email: Ebere Chukwu
If you have any complaints or comments about the consultation process, you should contact the Lord Chancellor's Department's consultation co-ordinator, Laurence Fiddler, on 020 7210 8516 or email him at Laurence Fiddler. Alternatively, you may wish to write to the address below:
Laurence Fiddler
Consultation Co-ordinator,
Room 8.23
Lord Chancellor's Department
Selborne House
54-60 Victoria Street
London SW1E 6QW
The criteria in the Code of Practice on Written Consultation issued by the Cabinet Office is as follows:
Timing of consultation should be built into the planning process for a policy or service from the start, so that it has the best prospect of improving the proposals concerned, and so that sufficient time is left for it at each stage.
It should be clear who is being consulted, about what questions, in what timescale and for what purpose.
A consultation document should be as simple and concise as possible. It should include a summary, in two pages at most, of the main questions it seeks views on. It should make it as easy as possible for readers to respond, make contact or complain.
Documents should be made widely available, with the fullest use of electronic means (though not to the exclusion of others), and effectively drawn to the attention of all interested groups and individuals.
Sufficient time should be allowed for considered responses from all groups with an interest. Twelve weeks should be the standard minimum period for a consultation.
Responses should be carefully and open-mindedly analysed, and the results made widely available, with an account of the views expressed, and reasons for decisions finally taken.
Departments should monitor and evaluate consultations, designating a consultation co-ordinator who will ensure the lessons are disseminated.
| £m net | 1995/96 | 1996/97 | 1997/98 | 1998/99 | 1999/00 | 2000/01 | 2001/02 |
|---|---|---|---|---|---|---|---|
| Community Legal Service | |||||||
| Family Representation | 325 | 346 | 343 | 375 | 340 | 365 | 319 |
| Civil Non-Family Representation |
318 | 325 | 291 | 284 | 225 | 195 | 157 |
| Family Legal Help | 48 | 47 | 48 | 53 | 59 | 64 | 64 |
| Immigration Legal Help | 24 | 26 | 36 | 54 | 59 | 87 | 120 |
| Civil Non-Family Legal Help | 60 | 64 | 73 | 78 | 85 | 80 | 74 |
| Total CLS | 775 | 808 | 791 | 844 | 768 | 791 | 734 |
| Criminal Defence Service | |||||||
| Criminal Higher (Crown Court & above) | 286 | 313 | 349 | 386 | 370 | 422 | 474 |
| Criminal Magistrates'* | 212 | 226 | 242 | 241 | 233 | 247 | 508 |
| Criminal Legal Help | 23 | 26 | 28 | 31 | 30 | 27 | |
| Duty Solicitor Schemes | 95 | 104 | 115 | 121 | 150 | 177 | |
| Total CDS | 616 | 669 | 734 | 779 | 783 | 873 | 982 |
| Total Legal Aid | 1,391 | 1,477 | 1,525 | 1,623 | 1,551 | 1,664 | 1,716 |
| Acts of Assistance | |||||||
| Family & Civil Representation | 385,580 | 346,190 | 319,432 | 295,672 | 245,812 | 174,017 | 161,895 |
| Family & Civil Legal Help | 1,149,171 | 1,154,370 | 1,195,143 | 1,156,179 | 1,013,467 | 803,828 | 764,697 |
| Total CLS | 1,534,751 | 1,500,560 | 1,514,575 | 1,451,851 | 1,259,279 | 977,845 | 926,592 |
| Criminal Higher | 125,249 | 116,443 | 124,491 | 124,990 | 119,475 | 114,263 | 113,260 |
| Criminal Magistrates' | 460,983 | 479,176 | 494,130 | 502,763 | 475,257 | 467,632 | 598,220 |
| Criminal Legal Help | 377,547 | 396,140 | 409,100 | 392,752 | 371,021 | 330,107 | 162,965 |
| Duty Solicitor Schemes | 970,858 | 993,275 | 1,063,021 | 1,069,772 | 1,008,159 | 1,225,755 | 905,935 |
| Total CDS | 1,934,637 | 1,985,034 | 2,090,742 | 2,090,277 | 1,973,912 | 2,137,757 | 1,780,380 |
| Total Legal Aid | 3,469,388 | 3,485,594 | 3,605,317 | 3,542,128 | 3,233,191 | 3,115,602 | 2,706,972 |
| * total for Criminal Mags, Crim Help and Duty Solicitors (breakdown not available) | |||||||
NB: the savings in each category should be treated with care. Particular care should be taken in adding together the savings from separate cuts. Where there are no figures showing year-by-year savings, they are still being compiled.
| Proposed Change | Savings (£m) | Notes | |||||
|---|---|---|---|---|---|---|---|
| 2003/04 | 2004/05 | 2005/06 | SR2002 total |
||||
| 1 | Investigations: reduce scope of free police station advice and availability of associated A&A | 3 | 9 | 10 | 22 | Estimated saving | |
| 2 | Proceedings: remove stand-alone A&A | 2 | 3 | 4 | 9 | ||
| 3 | Proceedings: remove A&A associated with rep orders and substitute alternative cover | No additional saving; step necessary to ensure delivery of savings under item 3 | |||||
| 4 | Proceedings: restrict court duty solicitor scheme | 2 | 5 | 6 | 13 | ||
| 5 | Proceedings: abolish advocacy assistance for early hearings | 2 | 3 | 4 | 9 | Estimated saving | |
| 6 | Proceedings: restrict scope for representation orders | 4 | 13 | 14 | 31 | Estimated saving | |
| 7 | Proceedings: improve monitoring and management of magistrates' courts against new grant criteria | No additional saving; step necessary to ensure delivery of savings under item 7. | |||||
| 8 | Strengthen operation of RDCOs | 1 | 3 | 3 | 7 | Estimated saving | |
| In total the expected savings from the above measures are: | |||||||
| 2003/04 | 14m | 2004/05 | 36m | 2005/06 | 41m | Total for Three Years | 91m |