» How to Respond
» Foreword
» Summary
» The Problems with the Existing System »
Selection of Representative
» Choice/Change
» Very High Cost Criminal Cases
» Annex A: Regulation 48 of the Legal Aid in Criminal
and Care Proceedings (General) Regulations 1989
» Annex B: Flow Chart of choice options available
to defendants
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.
The Government is committed to ensuring that the criminal justice system is fair and efficient and commands people's confidence. It should be sensitive to the needs of victims and witnesses, and to the public interest in the speedy and effective administration of justice. For a criminal justice system to be fair, people suspected of a criminal offence or facing criminal proceedings must receive legal advice and assistance in preparation of a case before a court, when the 'interests of justice' criteria require.
Defence lawyers play an essential part in this process. They have the role of protecting the interests of the suspect or defendant, ensuring that the prosecution proves its case and advising the defendant on the appropriate course of action. The provision of legal advice and assistance should help the defendant secure his rights and ensure that the process is effective and reduces unnecessary delay.
Under the Access to Justice Act 1999 the Legal Services Commission (the Commission) is required to secure the services of advice, assistance and representation through lawyers in private practice, or by providing them itself through salaried defenders employed by the Commission, or by organisations it sets up for that purpose. Therefore, from 2 April 2001, when the Criminal Defence Service comes into being and salaried defence schemes are established, solicitors under contract and salaried defenders will carry out all advice and assistance work by solicitors in the magistrates' court. Salaried defender schemes will be established in April 2001.
The Government is committed to ensuring that legal representation through contracts for those suspected or accused of a criminal offence is of good quality. All lawyers working under contracts will be expected to meet quality assurance standards and will, where possible, cover the full range of services from arrest until the case is completed. It follows from this that choice of legal representative must be limited to those lawyers who pass the Commission's quality assurance audit. In more specialist cases (e.g. serious fraud) those firms which have the expertise to do that type of work may be few in number and the defendant's choice will be limited to those firms. These are referred to as "Very High Cost Criminal Cases", because their defining feature is the length of trial and associated cost. Only firms that are members of a specialist panel will be able to undertake this work. The Government believes that the limitation in choice in this area is more than outweighed by the advantage to the suspect or defendant in having a representative capable of dealing effectively with the complexities of the case.
There must also be some restriction of choice to ensure that suspects and defendants do not change their representative without good cause. Unnecessary change is not in the interest of the suspect or defendant or other defendants in the case or the system of justice. Changes create delay and additional cost. But suspects and defendants must also be able to make a proper informed choice of representative; a proper balance has to be struck.
This document deals with the question of choice in 3 areas:
Advice and assistance and work done by solicitors in the magistrates' courts.
Representation in the Crown Court and above.
Very high cost criminal cases.
Article 6(3)(c) of the European Convention on Human Rights states that everyone charged with a criminal offence has the minimum 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. A number of countries working under the ECHR do not allow an accused person to choose his lawyer if he is benefiting from the appointment of a publicly funded defender. The Government does not intend, in general, to adopt that policy and believes that giving the defendant a lawyer in whom he or she has confidence is important. The Government also believes that its proposals in this paper are ECHR compliant.
The purpose of this paper is to set out the Government's proposals on how the defendant or suspect will choose a representative. We hope for a wide range of responses and welcome your comments on our proposals.
We propose to ensure that:
In the majority of cases, the suspect or defendant will be able to choose any defence lawyer who has a contract with the Legal Services Commission or a salaried defender.
In certain special and limited circumstances, choice will be restricted to those particularly qualified to undertake the work e.g. for serious fraud trials.
The defendant has a period of reflection to allow time to make an informed choice.
In the event of the defendant not making any further choice, the firm from which the duty solicitor was drawn, or a salaried defender if the duty solicitor was a salaried defender, will continue to represent the suspect or the defendant throughout the lifetime of the case, unless there is a compelling reason for a change.
Regulations will define the circumstances that will be considered reasonable to allow a change of representation.
The flow chart at Annex B illustrates the defendant's choice through the different stages of proceedings.
| Q1. | We propose that the application for representation will be the point when the defendant's initial choice will be considered to have been made - does this raise any practical difficulties? |
| Q2. | If the suspect at a police station chooses a representative other than the duty solicitor, is it appropriate that the duty solicitor assists the suspect until their chosen representative is available? |
| Q3. | Having made an initial choice, the defendant will have a period which he or she may review that choice. We propose that the period should be 7 days. Is this the most appropriate length of time? |
| Q4. | If the defendant reviews their initial choice of legal representative within the period of reflection and then selects another solicitors' firm or salaried defender, should they be allowed a further period or should this second choice be confirmed without a period of reflection? What are the risks of abuse if there are continuing periods for reflection? |
| Q5. | From 2 April 2001 it is proposed that the power of the court to make a decision to allow change of legal representative to another will be transferred to the Commission. Are there however any advantages in maintaining the court's powers? Or should responsibility transfer entirely to the Commission? |
| Q6. | Are there any other categories where change might be justified but which would not lead to unnecessary changes? |
| Q7. | What is the right balance between the defendant's desire for legal representation in which he has confidence and the needs of justice, interests of other parties and witnesses and the need not to waste resources? |
| Q8. | Should we prescribe a maximum number of times that a defendant can change representative, even if the change fell within the definition of "justified"? |
| Q.9 | Are these compelling reasons to justify not restricting choice for work done in the Crown Court to those firms who have a franchise, whether or not they hold a contract for magistrates' court work? This change would be introduced at the launch of the CDS on 2 April 2001 rather than waiting until contracting is developed further in the Crown Court by the Commission. |
Each year hundreds of thousands of suspects or defendants receive help provided under the existing criminal legal aid scheme.
In 1998/99, £779m (47.9%) of the total legal aid budget went on criminal legal aid and advice and assistance (this figure includes Criminal Higher, Criminal Magistrates', Duty Solicitor Scheme and Criminal Green Form). Of that almost half (49.6%) is spent in the Crown and Higher Criminal Courts.
The average payments in the higher courts rose from £925 in 1993/94 to £1,289 in 1998/99 (an increase of 39%) and yet the number of people assisted rose by 7%. In comparison GDP grew by only 13%.
The current arrangements for criminal legal aid are fragmented: a person can receive assistance in respect of the same alleged offence under several separate schemes from any solicitor who is willing to act. For example a suspect may receive advice from the duty solicitor at a police station and then the duty solicitor at the first magistrates' court appearance. They may also have had some advice under the Green Form scheme along the way. After this point the defendant, having received legal aid, may be represented by a solicitors' firm for any further hearings in the magistrates' court, before the case proceeds to the Crown Court where an advocate would represent the defendant before the court. Each stage results in a separate payment for the lawyers involved. Duplication of work and payment are therefore endemic in the system.
The Government believes that the current system is wasteful and does not make efficient use of public funds. Nor is the system in the best interests of the suspect or defendant; there is for example no guarantee of continuity in advice and representation nor of quality.
The Government intends that in future to make available quality assured legal services through contracting and provision of a salaried defence service. The Legal Aid Board's consultation paper Introducing Contracts for Criminal Defence Services with Lawyers in Private Practice, issued in August 1999, sets out the full proposals for contracting. The proposals for the establishment of a salaried defence service are set out in a consultation paper published by the Lord Chancellor's Department: Establishing a Salaried Defence Service and Draft Code of Conduct for Salaried Defenders employed by the Legal Services Commission. In future, wherever possible, one firm of quality assured legal representatives will manage a case from the initial advice at a police station to completion of the case, thereby providing a better service to the suspect or defendant and eliminating waste of resources and delay.
There is no absolute right to choice of representative under the present system. For example the assignment of Queen's Counsel (QC), or more than one advocate in respect of the whole or any specified part of a case in the Crown and higher courts is restricted to trials:
of murder;
where the case is one of exceptional difficulty, gravity or complexity;
where the prosecution is brought by the Serious Fraud Office and thus will involve complex financial matters.
For future detail, Regulation 48 of the Legal Aid in Criminal and Care Proceedings (General) Regulations 1989 which governs the assignment of QC or more than one counsel is attached at Annex A.
We are proposing to tighten the existing criteria relating to the assignment of QCs and the use of more than one advocate and are currently consulting with the professions.
There are also regulations that govern change of representation. Regulation 50 (1) (Endnote 1.) states that a court may, on application, amend an existing legal aid order to substitute another legal representative/s. In considering any such application a court will consider the reasons why it is felt necessary to amend the order, together with any comments from the existing solicitors. The court will only grant a change of representative if in the circumstances it is reasonable.
• Contracting/Background
The first contracts, which will be issued on 2 April 2001, will cover all advice and assistance and work done by solicitors' firms in the magistrates' court. Contracts initially will not cover Crown Court work or advocacy. As the contracts are extended to cover each level, regulations will provide that the defendant may no longer choose a non-contracted representative.
The introduction of contracting will necessarily involve some restriction on the choice of lawyer by the suspect or defendant; it will not be possible to select a firm not holding a contract with the Commission. A contract requires the firm to pass a quality audit. But in most cases, the suspect or defendant will be able to choose any contracted firm of solicitors or, in future, a salaried defender. In practice this should allow a high level of choice, which will help ensure the independence of defence lawyers, and the client's confidence in his or her representative. It will also promote quality, because lawyers who pursue their client's interests robustly are more likely to receive future business.
There will be no duty on a contracted firm to accept every defendant who wants to use their services. Further, where there are locally available contracted firms, no additional payment will be made if a defendant wishes to use a firm outside the area where the trial is taking place.
• The Choice Process
Suspects have a right to defend themselves, instruct a private advisor, or if they cannot afford private representation, be offered free legal assistance when the interests of justice so require.
If suspects have no means to support their own defence, they will be offered a choice of any solicitor with a contract with the Commission, or a salaried defender (when available).
When suspects are taken to a police station for questioning they have the right to legal representation. They will be offered the choice of :
the first duty solicitor on the rota, or
their own solicitor (who must have a contract with the Commission).
Originally the Government took the view that
"Someone who needs advice at the police station will be able to choose any solicitor with a contract with the criminal defence service or call on the Duty Solicitor. The solicitor chosen at that stage will be expected to continue to represent the client throughout the lifetime of the case, unless there is a compelling reason to change." ( The Lord Chancellor, 3rd day of the Committee Stage of the Access to Justice Bill (House of Lords) - 26 January 1999, Hansard column 923)
The Government believes there may be good reasons to adopt this approach to minimise abuse of the right to choose. In addition, it encourages quality police station work by making sure that representatives who do a good job get the subsequent work through the lifetime of the case. However it does oblige the suspect or defendant to make a very early choice. A defendant might wish to change within the first few days if he or she does not have confidence in his or her first solicitor, or wishes to change to a solicitor who has represented him or her before. However it is in the interests of all parties that legal representation is settled clearly at an early stage. The Government therefore does not intend to adopt this policy initially (although it may reconsider this option in future if it were to become necessary to avoid abuse). Our new proposals are set out in the next section.
If a case against a suspect proceeds to charge, most defendants will apply for funded representation. The solicitor's firm or salaried defender named in the application for funded representation (which must have a contract) will be considered the defendant's choice of legal representative, unless and until it is changed in one of the ways set out below. In the majority of cases it is likely that the firm which provides initial advice at the police station will be the same firm with which the defendant chooses to continue. But there may be circumstances where defendants may, at the early stage of a case, wish to review their choice of solicitor; yet at the same time it is important, as far as possible, to eliminate unnecessary change. For this reason we propose a period of reflection, from the date of application, to allow defendants time to review the initial choice of legal representative. We suggest this period should be 7 days. The initial choice of legal representative or the subsequent choice during the one week period will be regarded as the choice of representative for the duration of the case, subject to the exceptional circumstances described below.
| Q1. | We propose that the application for representation will be the point when the defendant's initial choice will be considered to have been made - does this raise any practical difficulties? |
| Q2. | If the suspect at a police station chooses a representative other than the duty solicitor, is it appropriate that the duty solicitor assists the suspect until their chosen representative is available? |
| Q3. | Having made an initial choice, the defendant will have a period which he or she may review that choice. We propose that the period should be 7 days. Is this the most appropriate length of time? |
| Q4. | If the defendant reviews their initial choice of legal representative within the period of reflection and then selects another solicitors' firm or salaried defender, should they be allowed a further period or should this second choice be confirmed without a period of reflection? What are the risks of abuse if there are continuing periods for reflection? |
A delaying tactic often used by some defendants is to 'sack' the defence team at the door of the court. We need to guard against this type of abuse of system but recognise that on occasions there may be a genuine need to change the lawyer. A client must have confidence in his or her representative. In most cases this can be achieved by simply transferring the case to another lawyer within the firm or another salaried defender; but this may not always resolve the problem.
At present, if defendants want to change solicitors, they will have to give the court a good reason. For example, a court may view a conflict of interest for the solicitors who represent more than one defendant in the same case, to be good reasons for change. If the court does not believe the request is reasonable, its decision can in some circumstances be referred to one of the Legal Services Commission's Area Committees. In April 2001 the power of the court to make that decision will be transferred to the Commission. The Lord Chancellor's view is that by giving this power to the Commission there will be greater consistency of approach and greater ease of monitoring.
In general an application to switch legal team (either solicitor or counsel) should be made to the Commission.
If the matter is before the court, a judge shall have the power and duty to look at any application which is, by reason of it being made, likely to delay the proceedings.
In paragraph 32 above, the judge shall have a duty to consider the statutory criteria to see if the defendant had made out a clear and persuasive case for a change of lawyer. If not, the judge shall have power to dismiss the application. If the defendant has made out the case, the judge shall consider whether any part of the case shall be adjourned until the application is determined. The actual decision to allow the change can only be made by the Commission.
| Q5. | From 2 April 2001 it is proposed that the power of the court to make a decision to allow change of legal representative to another, will be transferred to the Commission. Are there however, any advantages in maintaining the court's powers? Or should responsibility transfer entirely to the Commission? |
Change of representative should only be allowed in future if it is justified. We suggest a change of representative should only be permitted when:
there is a clear conflict of interest for the lawyer who represents more than one defendant in the same case, so that it would not be professionally appropriate for the lawyer to continue to act for that defendant;
there is a complete breakdown of the professional relationship between the lawyer and the defendant (this would have to be certified by the lawyer who had been providing the representation); for example where there is a cultural misunderstanding between the defendant and his/her solicitor;
the lawyer is substantially professionally embarrassed so that it would not be professionally appropriate for the lawyer to continue to act for that defendant; for example where the defendant gives instructions of a plea of guilty from the beginning of the case but changes those instructions at the last moment to a plea of not guilty at court, and both the advocate and solicitor are professionally embarrassed by these conflicting instructions
through circumstances beyond their control the firm or salaried defender can no longer provide assistance. For example a sole practitioner who was unable to continue because of ill health.
| Q6. | Are there any other categories where change might be justified but which would not lead to unnecessary changes? |
| Q7. | What is the right balance between the defendant's desire for legal representation in which he has confidence and the needs of justice, interests of other parties and witnesses and the need not to waste resources? |
| Q8. | Should we prescribe a maximum number of times that a defendant can change representative, even if the change fell within the definition of "justified"? |
Following consultation we will prescribe in regulations what circumstances are to be considered reasonable.
In all cases where a change is allowed we would propose to restrict that choice to another solicitor with a contract with the Legal Services Commission or a salaried defender. This would apply throughout the lifetime of the case, even if the change was made in the Crown Court and that work was not otherwise restricted to contracted firms.
• Advocates
For the purpose of advocacy, the chosen solicitor, should if required, either instruct a barrister, solicitor-advocate or act for their clients. If the solicitor is a solicitor-advocate he or she may inform the client that they may provide representation in court. The solicitor cannot advise the client to take only their services (see practice rule 16B of the Professional Conduct of solicitors). If the solicitor does not have rights of audience, they may recommend a barrister or chambers to his client. At present, the client may take this advice or reject it.
At some time in the future we would hope to be in a position to place barristers under contract at which point there might be further restriction on choice. Until then there will continue to be regulations which ensure that more than one counsel, or a QC, are only used when strictly necessary but there will be no attempt to further restrict within the class of qualified providers.
• Crown Courts
With the exception of contracted arrangements for Very High Cost Criminal Cases, from April 2001, Crown Court work will not yet be undertaken under contract but under arrangements similar to the existing legal aid arrangements for Crown Court work.
Most of the solicitors' firms undertaking work in the Crown Court will hold a contract with the Commission to provide advice or work in the magistrates' court and will be representing their clients on 'through' orders. To obtain contracts, these firms first had to obtain franchises. However there will remain a small number of solicitors' firms who currently work in the Crown Court and do not want to apply for a contract for magistrates' court work. These firms may, or may not be franchised. The aim of these reforms is to ensure that the providers of legal services are quality-assured and there are grounds for arguing that the nature of Crown Court cases demands that representation should be of an equal quality-assured standard.
| Q.9 | Are there compelling reasons to justify not restricting choice for work done in the Crown Court to those firms who have a franchise, whether or not they hold a contract for magistrates' court work? This change would be introduced at the launch of the CDS on 2 April 2001 rather than waiting until contracting is developed further in the Crown Court by the Commission. |
In the majority of cases, the suspect or defendant will be able to have a choice of any contracted lawyer. However, there will be certain, special and limited circumstances in which this choice will be restricted to those particularly qualified to undertake the work. These cases, which are referred to by the Commission as Very High Cost Criminal Cases, will be the subject of individual case contracts (ICC) arrangements.
Cases that will fall within scope of ICC are:
those where the trial is expected to last 25 days, or more;
and/or
it is estimated that, should the case proceed to trial, the defence costs in respect of any one defendant involved in the case (or group of defendants represented by the same firm of solicitors) will amount to £150,000 or greater (including solicitor's profit costs, counsel's fees, disbursements and VAT)
These cases will include for example serious fraud cases or those cases involving complex financial matters
Any case that falls within the definitions must be notified to the Commission by the instructed solicitor. Whilst the Commission is developing its capacity to manage ICCs i.e. the period before April 2002, the Commission will allow cases to proceed under the current arrangements. However after April 2002, all cases meeting the criteria will be subject to separate contracts.
In cases other than serious fraud, the presumption will be that the existing firm, selected by the defendant and which reports the case to the Commission, will be the firm with which the Commission will enter into the ICC, as long as that firm holds a general criminal contract from the Commission. However, the Commission will have the power to decide, in specified circumstances, that the defendant should select another contracted firm. Examples would be a case that was too large to be managed by a very small firm, or if contractual terms could not be agreed with that firm.
In serious fraud cases, where a great deal of public money is at stake, the Commission will contract with firms on the serious fraud panel. These will be solicitors' firms that have the essential skills, experience and technology. Further details were set out in the Legal Aid Board's consultation paper: "Ensuring Quality and Controlling Cost in Very High Cost Criminal Cases" published in August 1999.
As these trials demand particular skills and expertise, it is necessary that the defendant's choice should be restricted to those legal representatives who have demonstrated the required competence. The Government's view is that it is therefore better to have such a restricted choice of approved specialists than a wider choice from non-specialists.
When a potential case arises, the defendant will be able to choose from among firms on the panel. If the defendant already has a representative, the Commission will have the power to decide, in specified areas, whether the defendant should be offered another contracted firm. This might arise if contractual terms could not be agreed with the original firm.
Further information is available in the Legal Aid Board's consultation paper - "Ensuring Quality and Controlling Cost in Very High Cost Criminal Cases".
We propose to:
Produce regulations under Section 15(2)(c) of the Access to Justice Act 1999 that will restrict the defendant's choice from among a panel of specialist representatives in prescribed circumstances.
48. -(1) A legal aid order may provide for the services of a Queen's Counsel or of more than one counsel in respect of the whole or any specified part of any proceedings only in the cases specified and in the manner provided for by the following paragraphs of this regulation.
(2) The cases specified for the purposes of this regulation are trials in the Crown Court or proceedings in the Court of Appeal or the House of Lords-
(b) where it appears to the court making the order that the case is one of exceptional difficulty, gravity or complexity and that a legal aid order for the provision of services in the terms provided for by paragraph (3)(a) or (b) of this regulation is required in the interests of justice; or
(c) where the prosecution is being brought by the Serious Fraud Office.
(3) Subject to paragraphs (4) to (9), a legal aid order may provide for the services of a Queen's Counsel or of more than one counsel in any of the following terms-
(b) where two counsel are required-
(4) In proceedings to which paragraph (2)(c) applies, a court making a legal order may, if it considers that three counsel are required, provide for the services of three counsel in any of the terms provided for in paragraph (3)(b) plus an extra junior counsel or noting junior counsel.
(5) The fact that a Queen's Counsel has been or is proposed to be assigned under this regulation shall not by itself be a reason for making an order in any of the terms provided for by paragraph (3)(b) or (4).
(6) Where a Queen's Counsel has been or is proposed to be assigned under this regulation, no order in any of the terms provided for by paragraph (3)(b) or (4) shall be made where it appears to the court at the time of making the order that-
(b) the case relates to an appeal to the Court of Appeal or to the House of Lords and representation can properly be undertaken by a Queen's Counsel alone.
(7) Unless the court to which the application is made otherwise directs, every application for a legal aid order in any of the terms provided for by paragraph (3) or (4) or for an amendment under paragraph (10) or (11) shall be in writing specifying-
(b) if the order sought is for the provision of services in any terms provided for by paragraph (3)(b) or (4), the reasons why two counsel are required or an extra junior counsel or noting junior counsel is required as the case may be.
(8) A court may, before making a legal aid order in the terms provided for by paragraph (3) or (4) or amending the order under paragraph (10) or (11), require written advice from any counsel already assigned to the applicant on the question of what representation is needed in the proceedings.
(9) A magistrates' court which is competent as respects any proceedings by virtue of section 20(4) or (5) of the Act may make a legal aid order providing for the services of a Queen's Counsel with one junior counsel where:-
(b) the prosecution is brought by the Serious Fraud Office and the order is made upon receiving a notice of transfer under section 4 of the Criminal justice Act 1987
but shall have no other power to make an order under this regulation.
(10) In proceedings to which paragraph (2)(a) or (b) applies, a legal aid order which provides-
(b) for two counsel in any terms provided for by paragraph (3)(b) may be amended to provide for the services of the same number of counsel but in other terms provided for by that paragraph, or for a Queen's Counsel alone, or for one counsel only in accordance with regulation 47.
(11) In proceedings to which paragraph (2)(c) applies, a legal aid order which provides-
(b) for two counsel in any terms provided for by paragraph (3)(b) may be amended to provide for the services of three counsel in any terms provided for by paragraph (4), for two counsel but in other terms provided for by paragraph (3)(b), or for a Queen's Counsel alone, or for one counsel only in accordance with regulation 47;
(c) for three counsel in any terms provided for by paragraph (4) may be amended to provide for the same number of counsel but in other terms Provided for by paragraph (4), or for two counsel in any terms provided for by paragraph (3)(b), or for a Queen's Counsel alone, or for one counsel only in accordance with regulation 47.
(12) In every case in which a legal aid order is made under this regulation for the provision of services in terms provided for by paragraph (3) or (4), it shall be the duty of-
(ii) to consider whether the legal aid order should be amended as provided for in paragraph (10) or (11);
(b) Queen's Counsel, where the services of a Queen's Counsel are provided, to keep under review whether he could act alone.
(13) It shall be the duty of each legal representative, if of the opinion that the legal aid order should be amended as provided for in paragraphs (10) and (11), to notify that opinion in writing
and the court shall, after considering the opinion and any representations made by any other legal representatives for the assisted person determine whether and in what manner the legal aid order should be amended.
(14) A decision to make or amend a legal aid order so as to provide for the services of a Queen's Counsel or of more than one counsel may only be made:
(b) in the case specified in paragraph (2)(c), by the judge expected to try the case or a High Court judge where the proceedings are in the Crown Court, or by a High Court judge or a judge of the Court of Appeal where the proceedings are in the Court of Appeal.
Substituted by the Legal Aid in Criminal and Care Proceedings (General) (Amendment) (No. 2) Regulations 1994 (S.I. 1994 No. 3136).
Regulation 50(1) Legal Aid in Criminal & Care Proceedings (General)
Regulations 1989.
A court having power to make a legal aid order may, on application,
amend any such order by substituting for any legal representative or
representatives previously assigned under the order any legal representative
or representatives whom the court could have assigned if it had then
been making the legal aid order.