If you tell a big enough lie, and tell it frequently enough, it will be believed. The Lord Chancellor’s plan on Price Competitive Tendering.

This is the second part of a Blog Post by Paul Tubb, following on from his analysis of Legal Aid eligibility in the Magistrates Court

This paragraph (below) explains what it is all about, Forget the MoJ toadying Media Spin

“What is distinctly lacking from the debate is information about how the current system already prohibits access to legal aid for many defendants, and how people on relatively low incomes are already not getting access to legal support when they find themselves in court.”

Anyone not involved in the criminal justice system, and specifically within the provision of legally aided legal services, might be forgiven for thinking that the plans for Price Competitive Tendering represent a small and insignificant threat to a small number of lawyers ability to milk the legal aid system.

Since my first blog entry on the 8th June 2013 when I tried to set out the reality of legal aid eligibility within the Magistrates Court, which is of course the time at which a plea should be entered to ensure full credit for a guilty plea, there have been a plethora of further articles that I can only describe as character assassinations of anyone and everyone who has spoken out against the Lord Chancellor’s plans to introduce Price Competitive Tendering.

You will no doubt be flabbergasted to have read articles in the national press such as the Daily Mail on the 12th June 2013 describing Michael Turner QC as a “red-faced sort of chap…voice like an ashtray…full of bleak anecdotes”.

In the same article, the legal aid lawyers who travelled to the Justice Committee meeting were described as “a yuppy crowd, beady-eyed” who “fancy themselves as the new kings of the castle”. “Why had these £200-an-hour types come along to mouldy old Parliament?” the article asks.

There are many articles suggesting that lawyers are overpaid, greedy and making spurious allegations that the end of the world is nigh if legal aid spending is cut. There are countless suggestions that Chris Grayling is tackling “an over-complicating, tax-sponging cabal” and completing a much needed overhaul of the legal aid system.

Gradually appearing now are a few articles that speak out against the proposals and clearly and succinctly set out the dangers to the whole justice system if Price Competitive Tendering in its suggested form is implemented.

What is distinctly lacking from the debate is information about how the current system already prohibits access to legal aid for many defendants, and how people on relatively low incomes are already not getting access to legal support when they find themselves in court.

I say this, because I think that the general public would be more willing to support our arguments against Price Competitive Tendering if they appreciated how dire the current system already is, and how the main losers are, and will be increasingly, the most vulnerable of the general public. And again, as per my last blog, I am not arguing about income or costs earned by the litigator or advocate, but the lack of accessibility or the up front cost to the defendant – and how this impacts on justice.

With no qualified or quantified examples emanating from the Lord Chancellor or Ministry of Justice, I shall take this opportunity to once again do so on their behalf. Whilst my last blog focused purely on the Magistrates Court, I now turn to the availability and cost of legal aid to the defendants in the Crown Court.

As you will no doubt know, legal aid is currently guaranteed, subject to a contribution, for a committal for trial case in the Crown Court. You may not have known that it is not guaranteed for a committal for sentence. But what is the cost of someone getting legal aid – and can they afford it? The Lord Chancellor has said on record that people on relatively low incomes will always carry on getting access to legal support if they find themselves in court. Is this actually true? Do people on low incomes always get access currently?

In short, no!

Let us take the example of “Person A”, on a £12,000 salary, single male, working in a restaurant. He will receive £1,000 per month before tax, but pay £42.76 in tax per month, and £42.52 in national insurance contributions per month. With total deductions of £85.19, he receives a net wage of £914.81 per month.

Person A lives at home with mum and dad, and pays no board or lodgings. He pays no Council Tax, no childcare costs and no maintenance payments. He has however been charged and Indicted with a denied allegation of Burglary, a Class E offence, and his PCMH is next week.

The legal aid department at the Magistrates’ Court have granted him legal aid for his Crown Court case. End of the story you may think. No, not quite.

The legal aid department calculate that he has an annual disposable income of £5,301.72. They send with the legal aid certificate a Contribution Notice, which declares that he must pay five payments of £397.00 per month, or six payments of £397.00 if he fails to make a payment on time. He does however have the option of paying an upfront contribution of £1,985.

You will already know where I am going with this. That “contribution” is nearly fifty percent of his entire net salary. There is no allowance made for the fact that his car insurance as an 18 year old costs £212.00 per month, and his spend on petrol per month as he has a lengthy commute to work is £185.00 per month. He has to have the car taxed, serviced and MOT’d. He would also quite like to have some money for essentials, such as breakfast, lunch and tea.

The net wage of £914.81, less the costs of car insurance and petrol leave him with £517.81 per month. Take from that the contribution of £397.00 and he has £120.81 per month, or £30.20 per week for food, clothing, mobile telephone and all other expenditure.

Person A, instructed his solicitor to revoke legal aid as he was not able to make the payments given his existing commitments. He was unable to take a loan due to lack of a credit history, and his parents were unsupportive of him due to his alleged criminal actions – and in any event are reliant on benefits themselves. He was concerned that if he started to try to pay, he would then fail and have to pay more.

The long and short of it – he was deprived of access to legal aid and had no legal support for when he was in court.

For sake of completeness, I think it appropriate to look at the contribution in comparison to costs earned by the litigator and advocate, if they had in fact continued to represent Person A through until the day of trial. This I stress is not a complaint about the fees paid, but a rebuttal of the outrageous assertions that appear daily in the national press, and to put into context what I see as the unfairness of the current system even before the introduction of Price Competitive Tendering, which will inevitably make things far worse.

The case actually concluded with no evidence offered on the day of trial. The reason for that is unknown to me, but the defendant was actually innocent. Not “just a criminal” as the press would want you to believe.

What I can now calculate is that if that had happened with him being legally represented, the litigator would have claimed for each of the 19 pages of evidence and statements, and for representing him twice at the Magistrates Court, and for two attendances at the Crown Court, having taken a full statement from the defendant and his witness, and sent many letters and received numerous calls over the eight months from start to conclusion, would have received the princely, fat-cat, king of the castle sum of £255.38 plus vat. With similar cases usually taking approximately 15 hours of fee earner time to prepare, including travel, waiting, attendances, letters and calls, that would equate to £17.02ph plus vat.

If an advocate had fully prepared the matter for a contested trial, attended the client at both PCMH and day of trial, attended a conference with client, and dealt with any ancillary applications, they would have earned the whopping big, tax-sponging sum of £533.46 plus vat. If this took 15 hours of time, then the hourly rate would be £35.56ph plus vat.

The total legal costs incurred would have therefore been £788.84 plus vat (excluding disbursements). The client would have paid £1,985 to the Ministry of Justice, via Rossendales the collection agents, which is £946.61 more than the vat inclusive figure paid to the litigator and the advocate.

This system of arbitrarily charging clients substantially more up front for legal aid than fees paid out has, since its introduction, seen many people appear before the courts without representation as they simply cannot afford the monthly “contribution”. Had the contribution been set at a more realistic figure, he would have been represented throughout – and you have to wonder whether the case may have been resolved favourably, with key issues identified and discussions entered into, at a much earlier stage?

The fact that I care about this, and advocate change does not make me a Beady-eyed yuppy. It does not make me a fat-cat. I most certainly do not get £200ph. And I am certainly not getting “hysterical” about this or the concept of Price Competitive Tendering, and whilst I did once milk a cow, I have never milked the legal system.

I accept, as many do, that there are plenty of ways of making savings and efficiencies which are sustainable to the legal market in its current form.

I accept that the status-quo is not an option in the current difficult economic climate.

What I cannot accept is the approach and mentality of the Ministry of Justice, Lord Chancellor and the tabloid columnists, who seem to consider that the louder they shout, the bigger they lie, and more frequently they engage in petty character assassinations with derogatory and disingenuous assertions, the better off we will all be for it.

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Is the Lord Chancellor mistaken….and about to be shuffled orf to Belfast as Sec of State NI?

Charon QC

I am grateful to The Criminal Bar Association for drawing attention to this from Hansard

I have taken the liberty of extracting the relevant passage to save you the trouble of scrolling down to find it.  It would appear that Mr Grayling – who some say is not an expert in knowing arse from elbow – is not fully aware of the distinction between the Bar Council and The Criminal Bar Association

Valerie Vaz (Walsall South) (Lab):Will the Leader of the House ask the Lord Chancellor to come to the House to explain his flawed policy on legal aid? He refuses to meet the chairman of the Criminal Bar Association, the Law Society is threatening legal action, the Lord Chief Justice and the Master of the Rolls are against it, and it undermines the English legal system. We need a statement or a debate in Government time.

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