» How to Respond
» Foreword
» Part One - Establishing a Salaried Defence Service
» Part Two - Draft Code of Conduct for Salaried Defenders Employed by the Legal Services Commission
» Annex A Criminal Defence
Service Purpose and Objectives
» Annex B Planned mixed system
of provision and LSC management approach
» Annex C Description of Scottish
Pilot
» Annex D Sections 12-18 and
Schedule 3, Access to Justice Act 1999
» Annex E Bibliography
A response form is available as a Word 6 document.
Comments on this paper should be sent by 22 September 2000 to the following address:
Unless you ask the Department to keep your name or the contents of your response confidential, your name and the general contents of your response may be made public, in response to questions under the Open Government initiative. 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 comments received and views expressed.
Additional copies of this paper are available from David Bloom at the above address or on 020-7210 8754.
This Government is committed to excellence in public service and to ensuring that taxpayers receive value for money from the services they fund. The Government is willing to seek radical solutions to achieve those twin objectives.
The Criminal Defence Service (CDS), which will be introduced in April 2001, will be a vital public service. It will be the means by which the Government will meet its obligations to ensure that individuals, who are the subject of criminal investigations or criminal proceedings, have access to legal assistance where the interests of justice require it, where they could not afford to provide it themselves.
We believe that the twin objectives of value and excellence can best be achieved within the CDS through a mixed system of service provision, consisting of contracted private practice lawyers and lawyers employed directly by the Legal Services Commission.
In addition to having a positive impact on the whole of the CDS, we are committed to the salaried service itself providing high quality, value for money services.
The Government expects the Salaried Defence Service to set an example of excellent service and be a catalyst for change and improvement within the wider criminal defence and legal services community. In particular the Government believes such a service could:
widen the opportunities to lawyers from all backgrounds to provide criminal defence services by providing a greater degree of job security and career structure and development
encourage lawyers back into the profession, possibly with the benefit of flexible working hours e.g. people who had previously left the profession to bring up children or look after elderly or sick relatives
improve the quality and standard of training which can be offered to the whole legal profession
facilitate movement within the profession
widen the field of suitable candidates to become judges.
The Legal Services Commission is required, by s.16 Access to Justice Act 1999 to prepare a code of conduct to be observed by salaried defenders employed by the Legal Services Commission. The Code is subject to approval by the Lord Chancellor and by both Houses of Parliament.
• Introduction
In April 2001 the Criminal Defence Service (CDS) will come into being, under the management of the Legal Services Commission (LSC). The CDS will be a vital public service. It will -
ensure that the Government meets its statutory and international obligations which provide that:
people arrested and held in custody have the right to consult a solicitor privately at any time; and
a defendant has a right to defend himself in person, or through legal assistance of his own choosing, or; if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.
help ensure that suspects and defendants receive a fair hearing at each stage in the criminal justice process; and in particular that they can state their case on an equal footing with the prosecution.
protect the interests of the suspect or defendant, for example by making the prosecution prove its case; or advising the defendant to enter an early guilty plea, if that is appropriate.
maintain the suspect's or defendant's confidence in the system, and facilitate his or her effective participation in the process.
Initially, lawyers in private practice will provide the majority of CDS services. Progressively, from April 2001, the LSC will govern its relationship with these providers through quality assured contracts.
In the White Paper 'Modernising Justice', the Government said:
"… in addition to contracting for the services of lawyers in private
practice, the CDS should be able to employ lawyers directly as salaried
defenders. Evidence from other countries suggests that properly funded
salaried defenders can be more cost-effective and provide a better service
than lawyers in private practice. However, before taking the first steps
in this direction, the CDS would take account of the pilot scheme involving
public defence solicitors which is currently running in Scotland."
"The Government believes that, in the longer term, the best approach
will prove to be a mixed system, combining both private and staff lawyers.
This will produce better value for money for the taxpayer; because the
two systems will, in effect, both complement and compete against one
another. The cost of the salaried service will provide a benchmark,
which the CDS can use to assess whether the prices charged by private
lawyers are reasonable. Staff lawyers will also give the CDS flexibility
to fill gaps in the system, for example where too few local solicitors'
firms and barristers' chambers participate."
The Access to Justice Act 1999 (AJA 1999) provides the Legal Services Commission with the power to provide criminal defence services through salaried lawyers (either directly employed by the Commission or via bodies established and maintained by it).
Below is a summary of proposals contained in the paper. Comments are requested generally and specifically on these matters.
The initial period of operation of the service will be a start-up phase, which will coincide with the research programme, of four years. During and at the end of this period the Government will review the service and make decisions on its future development.
The salaried service will consist of individuals employed by the Commission, but in a structure wholly separate from its existing network of regional offices. The salaried service will be an independent, stand-alone, service within the Commission, responsible solely for delivering criminal defence services to the public.
The salaried defence service offices will be staffed and established so that they can represent their clients from the police station through to the Crown Court. As the service expands, lawyers with higher rights of audience will be directly employed, as well as those who can only operate in the lower courts. Salaried defenders would also utilise a budget from which they would purchase the services of specialist advocates, whether solicitors or barristers.
As a minimum requirement, salaried defence offices will have to meet the quality and performance standards set for private practice contracted firms operating under the general CDS contract.
Individuals seeking criminal defence services will not be required by the Legal Services Commission to choose a salaried defender rather than a lawyer in private practice.
Salaried defenders will be allocated slots on relevant police station and court duty solicitor schemes.
The heads of the salaried service offices will be responsible for managing their own budgets from which they will cover direct costs (staff, accommodation, etc.) and purchase services from others (advocates, experts and disbursements).
Individual salaries will be set at a level to attract individuals of the necessary calibre in the context of prevailing local salary conditions, but within a national framework.
Overall responsibility for the management of the salaried service project within the Legal Services Commission will lie initially with the Commission's Head of Criminal Defence Services.
The research will compare the CDS to services being provided through private practice and will test it against the most commonly voiced criticisms - independence, choice of representative, underfunding, case overload and restriction of access.
We also request your comments on our proposals for the draft code of conduct for salaried defenders. In particular comments are welcomed on the wording adapted for:
• Introduction
The decision to develop a mixed system of provision is informed by the available evidence of the operation of different delivery systems in other countries (and on the limited evidence available from this country - including the pilot currently operating in Edinburgh). Researchers and commentators have expressed differing views on the worth of individual salaried defence service schemes. However, there is a balance of opinion that salaried defence services are capable of delivering better outcomes than other delivery systems, and a consensus that the best systems are those where services are provided through a mixed system, involving both salaried services and services provided by private practice lawyers.
"Even though experts are divided over the cost-effectiveness of the judicare (End note 1) and salaried models of legal aid, there is a remarkable consensus that the ideal way forward for western countries is a model that involves a mixture of judicare and salaried lawyers." (End note 2)
Services in criminal courts in England and Wales are already being delivered by salaried lawyers; i.e. salaried prosecutors and employees of private practice firms of solicitors. Hence the issue is not whether salaried individuals should operate in this field but who should employ them and issues about conditions.
• Initial objectives
The Government now intends that the Legal Services Commission should establish a number of salaried defence service offices which will -
provide a basis for a major research programme which will address -
whether the planned mixed system of provision of CDS services (the details of which are summarised at Annex B to this paper) would perform better, in relation to the objectives set for the Legal Services Commission and the Criminal Defence Service (see Annex A), than a system based solely on contracts with private practice lawyers?
whether the predicted specific benefits of salaried services and the mixed system of provision are realisable and, if so, how they can be maximised?
whether the criticisms made of some salaried services in other countries are relevant to the approach being contemplated for England and Wales and, if so, how they can be addressed?
which salaried defence service model should be adopted?
the optimum balance and relationship between salaried defence services and contracted private practice services within a mixed system of delivery
the optimum arrangements between salaried defenders, the Legal Services Commission and its managers responsible for managing the Criminal Defence Service
how salaried issues should be developed in the future as part of a mixed economy?
provide the foundations of the establishment of a permanent, national, salaried defence service element within the CDS.
provide the Legal Services Commission with experience of -
managing salaried defence services;
using salaried defence services as a part of its overall delivery of criminal defence services alongside other methods of delivery.
The initial period of operation of the service will be a start-up phase, which will coincide with the research programme, of four years. During and at the end of this period the Government will review the service and make decisions on its future development. However, the service will not be frozen during this start-up phase. We will expect the Commission to work closely with its salaried service managers, and with the researchers, to develop the service and to learn from, and react to, the outcome of the research as it begins to deliver against its objectives. New offices beyond the six envisaged in the first phase may be started within the four year period depending on the initial results from the pilots, but taking account of their experiences.
• Establishing the service - overview
The salaried service will consist of individuals employed by the Commission, but in a structure wholly separate from its existing network of regional offices. The salaried service will be an independent, stand-alone, service within the Commission, responsible solely for delivering criminal defence services to the public.
The Commission's first step will be to identify and appoint researchers and agree the research programme with them. Working with the researchers the Commission will identify the cities and towns in which to establish the first salaried defence service offices.
The Commission will then recruit professional, lawyer, heads for each salaried service office and then work with those office heads to establish their own offices - including the identification and acquisition of offices and the recruitment of their staff. The Commission intends to commence the selection of researchers and the recruitment of office heads before the end of the consultation period, although clearly the nature of any research work will be influenced by the results of this consultation.
The head of each salaried defence service office will be responsible for the delivery of professional services by their office and for its management - in terms of management, supervision, budgetary control, training, assessment and appraisals.
The salaried service offices will be separate from the Commission's existing operational structure, including existing regional offices. However, the heads of the salaried service offices will be supported by the Commission's central services for the delivery of services such as payroll provision, human resources, information systems, etc.
Details of the planned management structure within which the salaried offices will operate within the Commission are set out at paragraphs 48-54 of this paper.
Size of the service
During the initial period of the start-up phase the Commission will establish salaried defence service offices in six locations. At least three offices will begin to provide services to the public from 2 April 2001. At the outset, the majority of these sites will be in large conurbations. This is because the offices will need access to a relatively large supply of work in order to establish a meaningful caseload quickly. However, at least one of the first six pilot offices will be in a smaller town in order to ensure that any particular issues arising from such locations can be assessed. The towns and cities to be covered will be identified once the project research team has been appointed.
During the start-up phase the Commission will seek to extend the geographic scope of the services provided outwards from the initial geographic locations in order to test the provision of salaried services in suburban and rural areas. Additionally, the Commission will keep under review the options for expanding the service beyond the six initially selected sites during the course of the start-up phase.
• Role and scope of salaried defence service
Overview
Each office will provide a comprehensive range of criminal defence services and broadly carry out the same role that a contracted private practice solicitors' office would fulfil. In reaching this view we have considered a number of different possible models of salaried defence service that might be implemented and, in particular, the issues set out below. These will be reviewed in the context of the progress of the pilot and the research programme in order to identify whether any changes to the role and scope of service of these offices needs to be made as the service is developed.
Comprehensive service provision or provision limited to the lower courts
In the Scottish pilot (a description of which is set out at Annex C), salaried defenders only represent clients in summary (i.e. less serious) cases.
We do not propose to take this approach in England and Wales. Such a limitation would be contrary to the more general reforms that the introduction of the CDS will achieve in providing a seamless service capable of representing clients from the police station through to the Crown Court. In addition, the AJA 1999 creates an assumption that clients will remain with the solicitor that they choose to represent them in respect of any particular offence.
Given this, the salaried defence service offices will be staffed and established so that they can represent their clients from the police station through to the Crown Court. In any event, we see no benefit to artificially limiting the range of work that salaried defenders can undertake; especially when such a move would limit the comprehensiveness of the research that could be undertaken into the service.
All services, including advocacy, or non- advocacy
It would be possible to limit the extent of services covered by the service, by preventing salaried defenders from undertaking their own advocacy - both in the magistrates' courts and the Crown Court.
Again, we see no clear benefit to limiting the extent of the service and, therefore, the extent of the research data and management information that we will obtain from it. We believe it to be important that salaried defenders are able to provide the full range of services that private practice lawyers can offer.
Solicitor salaried defenders will automatically have rights of audience in the magistrates' courts. In addition, at least as the salaried service offices expand, we would wish to employ individuals (both solicitors and barristers) with rights of audience in the Crown Court. We would expect salaried defenders to undertake some advocacy themselves and also utilise a budget from which they would purchase the services of specialist advocates (whether solicitors or barristers) as required. In all instances, the salaried defenders' overriding responsibility will be to manage individual cases in accordance with their duties to the client.
Equivalent role to private practice lawyers, or gatekeeper, or exclusive provider
Some mixed models of provision have salaried defenders operating alongside private practice lawyers, with both providing the same range and type of service, and with clients choosing whichever type of provider they prefer. Other systems have salaried lawyers acting as gatekeepers to the system, with all clients passing through their hands before onward allocation to the salaried service or a private lawyer, or have salaried lawyers having sole responsibility for discrete areas of service.
Details of the overall planned mixed system of provision and LSC management approach are set out in Annex B. This is the approach that is currently planned. Therefore it is not proposed at this stage to create a "gatekeeper" salaried defence service, or to reserve particular types of work to it.
Quality standards
As a minimum requirement, salaried defence offices will have to meet the quality and performance standards set for private practice contracted firms operating under the general CDS contract.
We would wish to see salaried offices move further than this minimum requirement and seek to improve quality standards and assurance mechanisms which can feed back into the development of the standards set for contracted private practice firms. This will be an important objective for the salaried service and for the individual office heads.
Size and make-up of each office
The structure and numbers of staff in each office will be developed with the researchers and the pilot site heads. Given that the offices will be starting with no clients, these plans will be based on the need to phase the growth of the offices in line with the growth of business until they reach planned capacity.
However, we will wish the offices to be able to offer a comprehensive, 24 hour service from day one of their operation, and therefore, each office will have some over- capacity in its early days.
Subject to what is said above, we envisage offices, in the major conurbations, during the start-up phase having an appropriate mixture of qualified lawyers, paralegals and non fee-earning staff. One of the non fee-earning staff will be a business manager who will have responsibility for managing the office on behalf of the lawyer office head. Each office will look to develop its own ratio between lawyer and non-lawyers.
Establishing a client base
Individuals seeking criminal defence services will not be required by the Legal Services Commission to choose a salaried defender rather than a lawyer in private practice. Therefore the salaried defence offices will have to establish their own client bases.
In order to enable the offices to achieve this, salaried defenders will be allocated slots on relevant police station and court duty solicitor schemes. In order to receive such slots, the individuals employed by the salaried service will have to meet the same requirements for duty solicitors as lawyers in private practice.
This approach will mean that the numbers of defendants being represented by salaried defenders should grow relatively slowly. This will impact on the length of the start-up phase in order to produce sufficient research data. It will also mean that the offices will be relatively expensive to establish in terms of average cost per case, and this will need to be taken account of when comparing such information with cost per case data from private practice lawyers.
Establishing the service in this way will, however, provide valuable management information on the establishment, from new, of salaried defence offices and on the ease, or otherwise, of penetration into the criminal defence service market.
Funding
The heads of the salaried service offices will be responsible for managing their own budgets from which they will cover direct costs (staff, accommodation, etc.) and purchase services from others (advocates, experts and disbursements). Budgets will be reviewed regularly during the start-up phase. In particular, it will be important for the Commission to ensure that the nature and scope of services is not unnecessarily constrained during the pilot period because of budgetary estimates which proved to be inaccurate in operation. Estimating budget requirements will be difficult because of the wholly new nature of these services and, therefore, greater adjustment in-year might be necessary during the start-up phase.
Salaried service offices will be block-funded, rather than billing the Commission on a case-by-case basis for work done. This will be a different funding approach than that applying to contracted private practice lawyers. However, salaried offices will record case and costs information in order to ensure the Commission has sufficient management information in order to be able to determine case cost and quality issues.
Individual salaries will be set at a level to attract individuals of the necessary calibre in the context of prevailing local salary conditions, but within a national framework. This will provide the benefit of a common national structure, to provide a clear path of career progression and to facilitate movement within the service nationally, whilst enabling individual office heads to obtain best value for money within the local employment market.
• Salaried service management structure and relationship to the LSC management structure
Directly employed individuals or a maintained body
The AJA 1999 provides the Commission with the power to provide salaried defence services either by employing individual lawyers directly or by establishing and maintaining new bodies which would themselves employ individual salaried lawyers.
We have considered both of these models, but plan to establish the salaried service as a directly employed, but discrete service, within the Legal Services Commission. The reasons for this are -
we believe this "directly employed" approach will simplify the establishment of the service, in that the Commission will not also have to establish arms length bodies as a part of the process;
we believe that the "directly employed" model will be more flexible to develop in the early stages of the service, as the Commission will almost certainly need to make detailed changes within the arrangements as its knowledge and experience, and that of the salaried defenders and researchers, grows;
we believe that the "directly employed" model will provide easier information flows for the Commission and the research programme during the start-up phase of the service;
at the same time that the service is being established, the Commission will be learning in detail about the implications and issues arising from the provision of criminal defence services through contracts with private practice lawyers. Many of these lessons will be of direct relevance to the establishment and maintenance of wholly funded arms' length bodies.
The planned approach is to commence the service with the directly employed lawyer model, and then, in the light of this experience and of contracting with private practice lawyers, consider as a part of the research brief, whether to introduce a "maintained body" model into the service.
Management structure within the Commission
One output from the research programme will be information on the most appropriate management structure for salaried defence services within the planned mixed system of provision. However, the Commission will need to establish management arrangements for the service during the start-up phase which will enable the service to be managed effectively, but which will also address such issues as independence of individual case management.
The individual salaried service office heads will be personally and professionally responsible for the services they, and their offices, provide to clients, and for managing and supervising the work of the staff within their offices. In this professional role the office heads will report to a professional head of the service. For the start-up phase of the service this role will be undertaken by a Legal Services Commission member, who will be an experienced criminal practitioner of high professional standing.
We propose that the heads of the offices meet together on a regular basis with the professional head of the service, to develop common standards and best practice, and to support each other in the collective development of the service.
Overall responsibility for the strategic direction and leadership of the service will lie with a Salaried Service Management Committee. This will be chaired by the same Commission Member referred to at paragraph 49 above and include as members the salaried office heads, the Commission's Chief Executive, Policy and Legal Director, Head of Criminal Defence Services and the head of the external research programme.
Day to day responsibility for the management of the salaried service project within the Legal Services Commission will lie initially with the Commission's Head of Criminal Defence Services. During the establishment of the service and the initial period of the start-up phase, the individual office heads will report, for administrative purposes and for the purposes of their participation in the research programme, to the Commission's Head of Criminal Defence Services. During the start-up phase of this new undertaking, it will be important for all the management strands of the project to develop and implement the new service to report to one individual. However, it is probable that the Commission will, thereafter, appoint a dedicated salaried service operations manager (to whom the office heads will report) who will report directly to the Commission's Chief Executive.
Within this management structure no individual other than the office heads and the staff employed in their offices (and, where necessary, the professional head of the service) will make decisions or have a role in the conduct of individual cases.
There will be no line management relationship between the salaried service office heads and the Commission's Regional Offices. However, we would expect there to be a close working relationship between the two as the salaried offices will be providing services to the Regional Offices (in the same way that contracted private practice lawyers will) as part of that Regional Office's responsibility for the provision and management of CDS services in the region. In addition there will be a monitoring/auditing function carried out by the Regional Office on the salaried defence office similar to the contract management arrangements that will be applied to contracted private practice suppliers.
• Benefits of Salaried Defence Services and a Mixed System of Delivery
Introduction
This section summarises the key benefits that the Government believes salaried defence services and a mixed system of delivery are capable of delivering. They derive from a review and analysis of the operation of such systems in other countries, particularly Canada, Australia and the USA.
Good quality
Research studies into salaried services in Canada have indicated that they are capable of delivering the same outcomes for clients for lower cost than private practice legal aid lawyers, or slightly better outcomes for the same cost. The clients of these salaried services were convicted no more often than the clients of private practice legal aid lawyers and received fewer jail sentences.
"The Public Defender's Office provides zealous, high quality advocacy at a modest price." (End note 3)
Surveys of judges and prosecutors as well as clients identified a general and equal satisfaction with the work of both salaried and private lawyers.
"Most public defenders provide high quality defence and have the advantage of establishing working relationships with deputy prosecutors, which can be invaluable in the settlement of a difficult case." (End note 4)
Better value for money
Where comparative information is available, it usually shows that salaried services are cheaper than those provided by private practice lawyers under legal aid on a cost-per-case basis. This is particularly demonstrated by experience in Canada where a number of studies have been conducted.
The start-up phase will be designed to accurately measure the act of providing these services so that it can be compared with the cost of funding them through private practitioners and public funding.
Closer alignment of objectives
The Legal Services Commission has explicit objectives to provide criminal defence services of an appropriate quality at a value for money price. Private practice lawyers, as well as fulfilling their obligations to represent their clients, seek to maximise the price received for their services, in order to maximise their profits. This mismatch of objectives has a negative impact on the relationship between the Legal Services Commission and private practice lawyers and will hamper the achievement of the Commission's objectives.
Salaried defence services do not have a profit motive. Therefore there will be a far closer alignment of objectives between the Commission and the service provider. The alignment of objectives between the Commission and salaried defenders (quality and value for money) will enable them to work more closely together to address problems within the system and to move more closely towards meeting the mutual objectives, whilst meeting their duties towards suspects and defendants.
Availability of information
At present, the Legal Aid Board has to rely on private practice lawyers to provide management information on the operation of the scheme, and there are some areas of management information not available, or to which private practice lawyers are unwilling to allow access. This is caused partially by the separation of the Board and the lawyers concerned, but largely it is due to the differing objectives of the two parties (see above).
By employing salaried defenders and delivering services directly itself, the Commission will have ready access to much better management information about the supply of criminal defence services. This information will enable it to develop the salaried defence service element of provision and improve the contracted private practice element. In the latter case this may be through the ability to set more appropriate and challenging quality standards, and/or the ability to use information on the actual cost of provision in order to negotiate better contract prices, and so improve value for money within the system.
Positive pressure on private practice quality and cost
The presence of an alternative mechanism to private practice suppliers for delivering criminal defence services, has the ability to test the quality and value for money of services provided by private practice and to determine where improvements can be made.
The pressures will not only be one way. The managers of salaried services will be subject to similar pressures from the private sector.
System flexibility
System flexibility in a mixed system of provision operates in two ways. First, there is the ability to establish salaried services in geographic areas, or for differing types of service, in order to cover gaps in private practice provision. Second, there is the ability to work closely with salaried defenders to develop new methods of delivery, or higher standards, more quickly and effectively than would be possible working at arms' length with private practice lawyers (especially with the complication of differing objectives set out above).
Summary
The Government believes that it is important to recognise that salaried defence services, and mixed provision models including salaried services, are capable of delivering these benefits. There are examples of schemes and systems throughout the world where they do deliver these benefits and, similarly, there are examples where they do not. Much depends on the way in which the systems are established and the commitment of Government and the managing/funding authorities to establish and maintain appropriate quality standards and providing adequate funding.
• Criticisms of Salaried Defence Services
Introduction
The decision to introduce a salaried defence service within a mixed system of criminal defence service provision, has resulted in strongly expressed views of opposition being expressed. This has also been the case in other countries. In Canada the Bar Association has commented on this phenomenon,
"… there are few topics which appear to arouse such strong and varying opinions as the choice of delivery model. Ideology and personal experience come together on this topic, allowing most lawyers to hold and advocate positions with great conviction. Rhetorical comment on delivery models is legion. To quote a few familiar nostrums: "Staff lawyers lack independence, because the state pays for both sides of the criminal case." "Staff lawyers have greater commitment to service to the poor." "Judicare lawyers engage in more determined advocacy, whereas staff lawyers are prone to settle." "Representation by a private lawyer under judicare is essential to the independence of the Bar." In the early days of legal aid plans … such rhetoric was a commonplace of the debates." (End note 5)
The Director of the Legal Aid Commission in Victoria, Australia has said,
"[The subject] has generated heat and division but little enlightenment and has diverted attention from more fundamental service delivery issues. The debate has been inconclusive partly because of lack of empirical evidence about comparative cost and partly because partisan interest has made agreement on the threshold of methodology difficult to achieve." (End note 6)
The Government has proceeded on the basis of sound research and empirical information on the actual operation of salaried services and mixed delivery systems. The Government believes that the interests of defendants and the criminal justice system as a whole would be best served if the future debate on this issue proceeded on this basis. It is our intention to continue with this approach in the next stage of this initiative through the establishment of a comprehensive research programme during the start-up phase of the salaried service. The Government, working with the Commission, intends to make a pragmatic assessment of what works and what can best deliver the objectives set for the CDS. In moving forward in this way it will be necessary to identify the criticisms that have been made of salaried services and make an objective assessment of whether these might give rise to actual problems that we will need to address in practice. However, we must at all times compare the reality of different delivery models. Any attempt to compare salaried services against an unattained ideal, and then reject salaried services because they do not meet the ideal, is methodologically unsound. The establishment of salaried offices is a challenge to private practice to raise their standards since the research will compare the realities of delivery under both methods.
The most commonly voiced criticisms, and the ones to which the Government and the Commission will wish to pay particular attention to in the start-up phase and the research programme, are set out below.
Independence
Some critics have suggested that because salaried defenders' paymaster is the state, there could be implicit or explicit pressure on them to act in ways contrary to the best interests of their clients, and that they may see themselves more as part of the system (identifying with the police and prosecution) rather than vigorous defenders of their clients' interests.
"I think of myself as a lawyer, who happens to have civil service benefits, not as a government lawyer." (End note 7)
The issue of "independence" actually has three separate aspects, and it is important to identify these separately in order properly to consider the issues raised. The aspects are -
system pressure by the funder;
lack of independence of mind by salaried employees of the service;
improper individual case interference by "the State".
• System pressure by the funder
It is argued that, at a system level, the funders of salaried services could have an improper influence on the salaried service by, for instance, requiring them to work to quality standards that are inappropriately low. However private practice is also funded by the state at rates fixed by the Government.
As the Canadian Bar Association has commented, much of the emphasis put on this aspect of the independence debate is mistaken:
". . . it should be obvious that it is the fact of third-party payment, not the nature or form of that payment, that then creates the potential conflict when the paymaster is the public purse." (End note 8)
The concern here flows from the fact of third party funding - not from the delivery system employed. The introduction of a salaried element is not, therefore, the issue.
To the extent that the Government pays some £780m a year to private practice lawyers, it might be suggested that there is already scope for undue pressure of this type. However, far from this being the case, it is the funder, i.e. the LSC on behalf of the Government, and not the independent self-regulated professions themselves, that has put the most effort and resource into working with suppliers to improve quality.
• Lack of independence of mind
As regards defence lawyers aligning themselves with the other criminal justice agencies, this is not a phenomenon absent from the current system. In his 1994 study, Professor Mike McConville (End note 9) found that much defence work undertaken by private practice lawyers in this country was segmented and made routine, with many solicitors and their staff tending to assume their clients were guilty. McConville's view was that good or bad representation depended less on the delivery system than on the values of the defenders.
Independence, in terms of lawyers vigorously defending the rights and interests of their clients in the criminal justice process, is a value that the Government will wish to see displayed by both contracted private practice lawyers and salaried defenders. We wish to do nothing, in any practical arrangements we establish to pilot and/or implement salaried defence services, which will derogate from this principle. On the contrary, we will wish to examine the issue of commitment to the vigorous defence of clients both with salaried defenders and in contracts with private practice lawyers.
"In my experience, with very few exceptions, public defender staff lawyers are thoroughly committed to their clients." (End note 10)
• Individual case interference
The third issue, of potential interference in individual cases, will be addressed in the Commission's and salaried service management structures and in the Commission's Code of Conduct for salaried defenders. The AJA 1999 requires the Commission to prepare a Code of Conduct that must be consulted on with the Law Society and the Bar, and which must be approved by the Lord Chancellor and by positive resolution of Parliament. The draft Code of Conduct is set out in Part Two of this paper.
The management structures put in place by the Commission for salaried defence services will be such as to ensure -
the required independence;
there is no ability for LSC managers to involve themselves with the way in which salaried defenders represent individual clients; and
that no individual case information passes outside of the salaried service into the operational units of the Commission other than that strictly necessary for the proper performance of the Commission's functions (in particular quality assurance) and equivalent to that provided by contracted private practice lawyer;
that salaried defenders have a clear route to refer matters to a professional head in order to raise any issues of concern over the way they are required to work.
We will also wish to consider the extent to which such arrangements should be mirrored in our contractual arrangements with private practice lawyers.
The issue of independence will be considered further within the research programme.
Choice of representative
Criticism surrounding freedom of choice has largely focused on the concept of the Commission directing clients to salaried defenders with no option for them to choose a private practice lawyer. This has been addressed in the AJA 1999 that gives the Commission no power to direct individuals with a right to representation in this way. Given that there will be a choice of representation, it will be additionally important for the Commission to maintain the quality of service of salaried defenders and their reputation to at least the same levels as those applying to private practice lawyers.
Notwithstanding the above, there is evidence from abroad that salaried schemes can be the service of choice over private practice services. For example, research into the mixed scheme in Quebec, which allows a free choice, shows that in some salaried schemes only a minority of clients will choose a private practice lawyer. In one study, 71% expressed a preference for a staff lawyer whilst 23% expressed a preference for a private lawyer. (End note 11)
Choice of representative is the subject of a separate consultation paper.
Underfunding / Overload
It has been argued that salaried schemes are particularly vulnerable to underfunding by governments, with the consequence that individual defenders can be overloaded with cases and therefore not be able to provide services of an acceptable quality.
The evidence from abroad is that underfunding and case overload is present in some salaried defender systems. Similarly, it is also present in some systems where government-funded lawyers in private practice provide defence services. Again, the issue is less one of the delivery system adopted, than the funding authority's and providers' commitment to quality services, as evidenced by the quality standards set, monitoring arrangements, the level of funding available and suppliers' commitment to quality over profit.
Nevertheless, it would probably be technically easier for a salaried service to be underfunded at short notice than it would be to underfund a system based on payments to private practice lawyers. However, such underfunding would be readily apparent, whereas there are currently no safeguards in the system which prevent private practice lawyers overloading their staff with too many cases in order to increase profit levels.
The research programme will establish whether maximum caseloads need to be set, and, if so, what they should be and who should maintain oversight of them; the Commission or salaried defence service managers? Again, the Commission will wish to assess what lessons this information provides us with, in terms of requirements we might place on private practice suppliers operating under contracts.
Access
It has been argued that salaried defence services can restrict physical access to defence services. However, this criticism is probably most relevant to exclusive salaried schemes where services may only be provided through a small number of offices. This is not the system we are contemplating for this country. First, because we will wish to maintain access to criminal defence lawyers at police stations and magistrates' courts through the duty solicitor schemes and, second, because we expect salaried services to make up a proportion of provision alongside a larger number of private practice lawyers. Within the system we are contemplating, there is, in fact, the potential to address any existing or emerging access problems through the use of salaried services.
Summary
The Government and the Commission will be prepared to consider and address all of the above areas of concern, and others as they may arise, in the planned pilot and research project. However, we are determined that the debate on the issue be based on objective evidence and research, and not on myth and hearsay.
Introduction
The Legal Services Commission is required, by s.16 Access to Justice Act 1999 to prepare a code of conduct to be observed by salaried defenders. The Code is subject to approval by the Lord Chancellor and by both Houses of Parliament.
Draft Code of Conduct for Salaried Defenders Employed by the Legal Services Commission
This Code of Conduct is made under S.16 Access to Justice Act 1999 and applies to employees of the Commission or of any body established and maintained by the Legal Services Commission, who provide services as part of the Criminal Defence Service under S.13(2)(d) and (f) and S.14(2)(d) and (f) of the Act.
For the purpose of this Code:
"Client" means a person who is seeking or receiving services funded by the Commission as part of the Criminal Defence Service.
"Commission" means the Legal Services Commission established under S.1 of the Act.
"Employee" means any person (including a professional employee) who is employed by the Commission or a body established by the Commission under S.13(2)(d) and 14(2)(d) of the Act to provide services to clients as part of the Criminal Defence Service.
"Professional employee" means a solicitor or barrister or any other authorised advocate or litigator currently qualified to practice who is employed by the Commission or a body established by the Commission under S.13(2)(d) and S.14(2)(d) of the Act to provide advice, assistance or representation to clients as part of the Criminal Defence Service.
"Salaried service" means the service provided by employees of the Commission or any body established by the Commission under S.13(2)(d) and S.14(2)(d) of the Act directly to clients as part of the Criminal Defence Service.
| Purpose |
|
| 1. | The purpose of the Criminal Defence Service is to ensure access for persons involved in criminal investigations or criminal proceedings to such advice, assistance and representation as the interests of justice require ( S.12 of the Act ). |
| Duty to Protect the Interests of the Client |
|
| 2. | A professional employee shall do his or her utmost consistent to the lawyer's duty to the court, and in compliance with other professional duties, to promote and work for the best interests of the client and to ensure that the client receives a fair hearing. A professional employee shall provide the client with fearless, vigorous and effective defence and may use all proper and lawful means to secure the best outcome for the client. |
| Duty to Act with Integrity and Independence |
|
| 3.1 | An employee shall act with honesty and integrity in carrying out his or her duties on behalf of the Criminal Defence Service. He or she must never knowingly or recklessly give false or misleading information. |
| 3.2 | An employee has a duty to maintain his or her independence and to not allow this to be compromised by clients, prosecuting authorities, the courts or any other source. |
| Duty to act Impartially and to avoid Discrimination |
|
| 4.1 | Employees shall treat clients fairly, reasonably and without discrimination. In carrying out duties, an employee must not discriminate directly or indirectly against any other person on grounds of race, colour, ethnic or national origin, sex, marital status, sexual orientation, disability, age, political persuasion or religion. |
| 4.2 | A professional employee must accept instructions from any client who is not already legally represented in the relevant proceedings, provided that he or she is competent to act and that no conflict or significant risk of conflict of interest arises, unless there is some other substantial reason why the best interests of the client would not be served or a right of withdrawal would immediately arise under paragraph 11.1. |
| 4.3 | A professional employee shall only provide advice, assistance or representation to a client where he or she is competent to do so. Competence requires such legal knowledge, skill, experience and preparation as is reasonably necessary to properly represent the interests of the client. |
| 4.4 | A professional employee shall not refuse to advise, assist or represent a client because of the nature of the allegation or the client or because of the employee's personal views. |
| Duty of Confidentiality |
|
| 5.1 | Subject to 5.2, an employee shall keep all information about a client confidential. This is an ongoing duty that does not cease once employment has terminated, and can be enforced in a court by the LSC and the client. |
| 5.2 | A professional employee is bound by the rules of legal professional privilege and any relevant rules of professional conduct or otherwise setting out circumstances where the duty of confidentiality may be overridden. |
| Duty to the Court |
|
| 6.1 | An employee must never deceive or recklessly or knowingly mislead the court. The duty to the court is an overriding statutory obligation. |
| 6.2 | Employees must ensure that in the public interest the proper and efficient administration of justice is achieved. |
| 6.3 | An employee shall not give evidence in the criminal trial of a client unless it is unavoidable. If a professional employee is required or is at significant risk of being required to give evidence, he or she shall not act as the client's advocate and must consider whether it is appropriate to withdraw. |
| Duty to avoid Conflicts of Interest |
|
| 7.1 | A professional employee may represent more than one client in the same proceedings, provided that no conflict of interest exists. A conflict of interest arises where the interests of a client require the professional employee to act in a way which is contrary to the interests of another client e.g. where the duty of confidentiality owed to a client comes into conflict with the duty to disclose all relevant information to another client. |
| 7.2 | Where a professional employee provides advice, assistance or representation to a client and a conflict or a significant risk of conflict arises between the interests of two or more clients or the professional employee and a client, then he or she must cease to act. |
| Duty not to Offer or Accept Payments |
|
| 8. | An employee shall not offer or accept any fee, commission, inducement, gratuity, gift, benefit or other form of compensation, whether direct or indirect, in the course of his or her employment unless provided for in the Act or its supporting regulations. |
| Relationship with the Legal Profession |
|
| 9.1 | A professional employee shall not practice law other than in the performance of his or her duties as an employee or engage in any other occupation without express written permission from his or her line manager. |
| 9.2 | All employees shall endeavour to maintain relationships with the legal profession and other agencies in the criminal justice system based on courteousness, mutual respect and professionalism. |
| Change of Legal Representative |
|
| 10. | If a client wishes to change legal representative, then an employee shall advise the client about the relevant rules and procedures. |
| Withdrawal of Legal Representative |
|
| 11.1 | A professional employee shall cease to act for a client
where:
|
| 11.2 | A professional employee may cease to act for a client
where:
|
| 11.3 | If a professional employee ceases to act then he or she shall give reasons to the client for doing so, except in the case of (d) above. |
| Public Interest Disclosure |
|
| 12.1 | If an employee believes that he or she is being required
to act in a way which:
he or she must report the matter in accordance with the procedure set out in the Commission's Staff Code of Conduct. |
| 12.2 | If any of the above circumstances arise, a professional employee must also consider whether it is appropriate to continue to act for a client. |
| 12.3 | This provision does not override the rules of professional privilege. |
|
Excessive Caseload |
|
| 13. | If a professional employee considers that due to excessive caseload the acceptance of any further instructions from new clients might reasonably lead to inadequate representation of existing clients, he or she should bring this to the attention of his or her line manager who must report this concern to the professional Head of Service. |
| Standards of Conduct |
|
| 14.1 | An employee shall not do anything to bring the Commission or the Criminal Defence Service into disrepute or to diminish public confidence in the criminal justice system in the course of their employment or otherwise. |
| 14.2 | An employee who is a member of a professional body shall comply with the rules of conduct and any guidance issued by that body. |
| 14.3 | All employees must apply any professional rules or guidance, approved by the Commission, relating to the treatment of victims and witnesses. |
| 14.4 | An employee shall not misuse his or her position or information acquired in the course of his or her duties to further their own private interests or those of others. |
| 14.5 | The terms, conditions, policies and procedures contained in the Commission's Personnel Manual shall apply to all employees, except where varied or overridden by an express provision in this Code. |
| Complaints |
|
| 15.1 | A complaint against an employee shall be dealt with under the procedures laid down by the Commission or by any body established by the Commission to provide services to clients as part of the Criminal Defence Service. |
| 15.2 | A complaint against a professional employee may be dealt with under the procedure laid down by his or her professional body, as well as under the procedure in paragraph 15.1. |
| Applicability of Code to External Suppliers |
|
| 16. | The provisions of this code also apply to any external supplier of services instructed to provide services to clients on behalf of the Criminal Defence Service under S.13(2)(d) and (f) and S.14(2)(d) and (f) of the Act. |
Judicare: private sector lawyers providing publicly funded legal services.
A.Paterson: Financing legal services: a comparative perspective, in (eds) D.L.Carey Miller and P Beaumont, The option of litigation in Europe, UK National Committee of Comparative Law.
Michael Judge, Los Angeles Public Defender, Los Angeles, USA. Jan 2000.
Dan Satterberg, Chief of staff, Prosecutor's Office, King County, Seattle, USA. Jan 2000.
Canadian Bar Association Standing Committee (1987): 'Legal aid delivery models: a discussion paper'. Dept of Justice, Ottawa.
Crockett A. (1994). 'Salaried legal services', Legal Aid Commission of Victoria, Melbourne.
Bill Malcolm, Supervising Attorney, Manitoba Legal Aid, Canada. Jan 2000.
Canadian Bar Association Standing Committee (1987): 'Legal aid delivery models: a discussion paper'. Dept of Justice, Ottawa.
McConville M., Hodgson J., Bridges L. and Pavlovic A. (1994): 'Standing Accused: the organisation and practices of criminal defence lawyers in Britain'. Clarendon Press, Oxford.
Ann Christian, Director, Oregon Judicial Dept, Indigent Defense Services Division, USA. Jan 2000.
Canadian Bar Association Standing Committee (1987), 'Legal aid delivery models: a discussion paper', Dept of Justice, Ottawa.
Judge Helen Halpert, now of King County Superior Court and formerly of Seattle Municipal Court, USA. Jan 2000.