Home » Uncategorized » 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.

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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6 thoughts on “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.

  1. The campaign to destroy legal aid: Chris Grayling really does need to do better than this

    Last Saturday’s Daily Mail published one of the first articles designed to support the extraordinary campaign by Chris Grayling to savage legal aid and impose a cut price state lawyer on anyone charged with an offence. Harry Mount, journalist and former pupil barrister, kicked off their campaign in an essay published in Saturday’s Daily Mail. The article fully supported the irresponsible and needless destruction of the criminal justice system by the legally unqualified Minister of Justice. Harry’s article is as bitter and venomous as it is misinformed. He rails against legal aid barristers claiming that they are bleeding us dry, and earn exorbitant amounts of money. In fact Harry has failed to look at the government’s own figures published recently in the Ministry of Justice Consultation paper which show that over 50% of criminal legal aid barristers earn a maximum of £40,000 before tax. Many of course earn far less. Of the remaining 50% most do not earn much more and only a very small percentage earn in excess of £100,000. He further exclaims that it is ‘odd how barristers never suggest cutting the ruinous cost of legal aid’.

    In fact legal aid has been consistently cut back by the government time and time again over the last 15 years, and the Bar Council has not only co-operated with the government to drive down costs but even suggested a graduated fee scheme that saw large reductions in the fees that barristers earn. Harry rails against barristers living in Georgian terrace houses and Buckinghamshire country piles. This is pure invention. The vast majority of barristers live in modest houses in modest streets just like everyone else on an income of £40,000. Even the top earners at the legal aid criminal bar earn far less than their equivalents in other professions, such as City solicitors, and Doctors, to name but two.

    In fact the recently published government figures in relation to earnings are out of date since the earnings of the top legal aid barristers has already now been subjected to further cuts that amount to reductions of up to 56%, which will see the most able hardest working performers earnings drop to such an extent that many are leaving the profession. Please also bear in mind that these earnings do not include any pension or any other benefits. The government’s latest proposal is to cut legal aid fees by a further 17.5%. Mr Mount also attacks legal aid solicitors but again appears to have ignored the recently published Otterburn Report commissioned by the Law Society that showed that the average salary drawn by a partner in a criminal legal aid practice was £20,000 per annum.

    The gross misrepresentation of legal aid lawyers earnings however, is far less worrying than the reality of the government’s plans that Harry so enthusiastically supports. The 17.5% cut in legal aid fees is but one limb of the proposals. These cuts are combined with the abolition of choice as to the lawyer that will represent you. Harry’s view is that Rumpole’s job is in fact ‘child’s play’ and that anyone can do it. Presumably this is also the view of the current government as they force through legislation that will leave people represented by ‘Providers’ of legal services whose sole criteria appears to be to dispense cut price justice as fast as possible. It is this extraordinary destruction of an independent high quality legal representation, that has caused so many top lawyers and Judges to speak out against it, and warn of the dire consequences for our society.

    I, along with many barristers both prosecute and defend. We have already seen the effect of draconian cuts on the quality of advocacy; not only do poor advocates sell their clients down the river, but they frequently are the cause of far greater costs, since proceedings they are involved in often last longer, and more often lead to costly appeals. We have seen Prosecutions fail through poor advocacy and Defendants unfairly convicted. The time has come to seek to improve standards not drive them into oblivion. The government, of course are relying on the fact that no one will care if criminals are acquitted or more people are falsely convicted; all they want is the likes of big supermarkets or firms like Eddie Stobart to take a reduced pot of cash and employ the cheapest advocates they can find.

    Encouraged by the government Eddie Stobart already have a grossly misleading website promising cheap access to barristers, undeterred by the fact they know nothing about criminal law and do not employ a single barrister. There was not one word about how they could ensure quality in the government’s recent consultation paper on legal aid cuts; Presumably because, like Harry, they don’t believe quality is important; after all anyone can do it. Harry Mount is no doubt one of a number of ‘ex barristers’ that the government will deploy over the next few months to push through their cut price ideas. Chris Grayling is determined to push through his cuts and further his ministerial career. Harry tells us he was a barrister and used to work for George Carman. He doesn’t say why he left the Bar, although appears rather bitter about it. If his attention to detail whilst working for George was of the quality he has displayed in researching his essay supporting the Minister of Justice, it is perhaps easy to guess why he failed at the Bar. I suspect the new Grayling ‘justice system’ run by the likes of Eddie Stobart will have no qualms about employing advocates as unconcerned with the evidence, as Harry appears to be; just so long as they turn over those cases…. Oh and another key part of the government’s proposal is that advocates get paid more if people plead guilty and don’t waste society’s time by insisting on a trial. “No Mrs Smith you must plead guilty, (I get paid more if you do). I don’t care if you don’t think I’m any good and haven’t read the papers. Well there are an awful lot of them; I don’t get paid much you know, and I must turn over more clients. Anyway you’ve got to have me. You have no choice. Next…..”

    Matthew Farmer,
    Practising Barrister, 2 Harcourt Buildings, Temple.

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

    I disagree. I know people have to say this, because it presents the image that the legal profession is not against all cuts, but these ones are really bad.

    It just isn’t honest though. Legal Aid has already been cut, and it has been cut to such a degree that the MoJ can’t even give us future figures on what the costs will be for the next few years.

    Why can’t we stay with the status-quo until we see what the final figures are, wouldn’t that make more sense?

    Or is it simply a matter of: no matter how little we spend on legal aid, it will be too much?

    I can’t agree with that statement. A competent justice system costs money, until we know how much it is costing we can’t know whether cuts are justifiable.

    • A change from the status-quo does not have to be in the form of cuts to fees. Requiring banks to contribute in fraud matters, increasing victim surcharge for convicted wealthy criminals are but two ways of maintaining or increasing current fees, but reducing the burden on the taxpayer. I agree that a competent justice system costs money – but whose money should that be!

  3. I recently represented a serving soldier and Afghanistan veteran at Burnley Crown Court. He was paying £1,400 per month in contributions to legal aid! His case was a cat C and involved a guilty plea followed by sentence. I would have covered his case privately at legal aid rates but it was too late by then as he had signed up to giving the legal aid authority a £8,400 loan. Disgraceful.

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