Wednesday, 5 February 2014

Making crime pay? Thoughts on defendant contributions to criminal justice costs

On seeing the Lord Chancellor's announcement today that convicted offenders will pay a contribution towards the costs of running the courts, my mind wandered back to fieldwork I conducted last year with criminal defence lawyers at the 'Justice For Sale' meeting. One of the questions posed in the survey I distributed asked whether convicted defendants should pay a contribution towards their legally aided defence. Interestingly, a majority (64%) said 'yes', with only 31% disagreeing. Whilst the two proposals - a contribution to court costs and a contribution to legal aid - are not the same, they both share the same underlying principle ('make the offender pay') and relate to costs drawn from the same pot.

Some of the reactions so far - primarily on Twitter and comments on news articles - have criticised the proposal. One might be led to believe that the idea of the defendant making a contribution is therefore not supported by those within the legal profession. However, the response in my fieldwork suggests that the idea of a convicted client paying for the costs of prosecuting them (in some form) is not opposed as strongly as one might think. Indeed, in their response to the 'Transforming Legal Aid' consultation, the South East Circuit of the Bar proposed the very same idea now announced by the Lord Chancellor.

The criticisms levelled at both the Lord Chancellor's proposal and my hypotethical one (by respondents to the survey) are similar. Foremost among them is the practicality of enforcing such orders against defendants who cannot afford to pay or may have to be chased for payment. The former problem renders such proposals redundant - if a defendant has no money, the order is meaningless. In the event that enforcement costs more than the amount sought, the latter problem means that such proposals are a false economy. Ultimately, both problems risk making a farce of such orders.

This would not, of course, be universally true. The South East Circuit paper presents arguments suggesting that enforcement could be achievable in an economic way. It has also been pointed out that enforcing such orders against wealthy offenders - who have benefited financially from their crimes - could be more realistic. However, this is not without issues. There currently appears to be a discrepancy between costs/surcharges ordered by courts (e.g. confiscation orders) and their actual enforcement - in short, only a small proportion of the proceeds of crime are actually being reclaimed. Adding more orders to the bill seems pointless.

In addition, one could argue that wealthy offenders are more likely to be able to 'hide' assets; a protection not so readily available to indigent offenders. This infers that such proposals could disproportionately penalise those with fewer assets. These defendants are also likely to be of a lower cost to the system than wealthy ones, who may be involved in complex and costly trials for fraud or drug offences, for example. Moreover, one might argue that certain costs (e.g. legal representation) could be paid for by wealthy offenders from their own assets, rather than freezing those assets and compelling an application for legal aid - which must then be recouped by the state at a later stage.

In general, the addition of another cost for offenders to pay - in addition to the existing victim surcharges and prosecution costs - seems needlessly complex and bureaucratic. It may well be that administering such orders will cost more than they are worth. If, as proposed in the fieldwork, a legal aid cost were also added, the system would seem rather ridiculous. Perhaps all of these costs could be rolled into a single order, distributed later on. Maybe, in practice, this is the reality; maybe to do so would also be costly, since some authority would have to be responsible for pursuing and distributing the money reclaimed amongst the beneficiaries. Perhaps the proceeds of this 'single order' should be returned straight to central funds, with the increased income allowing for increased funding to the CPS, HM Courts and Tribunals and legal aid providers, with an automatic payout to victims. One suspects that the individual beneficiaries would object, on the basis that they would never see the money.

A last thought. Since the courts service - including the payment of staff, running of the estate, etc. - exists in perpetuity and regardless of whether a defendant is convicted or not, is it really fair to charge convicted offenders for its operation? Those who are acquitted after a trial get equal use from them. They exist as a public service for the good of society, whether people are engaged with the system or not. In contrast, were a defendant to plead not guilty, obtain the benefit of legally aided defence representation, and then be convicted, he or she would have created a cost that would not have existed had he or she pleaded guilty. In this circumstance, it seems fair to ask for a contribution towards the cost of a service. Then again, the same scenario means electricity, heating and staff costs which could have been avoided.

Clear opposition to the Lord Chancellor's proposal amongst the legal profession would contrast with the responses in my fieldwork. This might be regarded by cynics as stemming from self-interest: convicted clients can pay for my costs but not those of the courts. This is probably unfair and inaccurate. No respondents expressed the view that costs should specifically benefit them - merely that contributions could help fund the justice system. Moreover, the contribution would likely be so small as to make little direct difference to the income of individual providers.

Tuesday, 21 January 2014

Speculating on the Public Defender Service: Some Questions

In an interesting move, the Ministry of Justice (MoJ) today announced the appointment of two QCs to the Public Defender Service (PDS). It also posted an advertisement to recruit more lawyers to the organisation. This follows the announcement of a new Head of Advocacy in October 2013The PDS was created in 2001; it provides publicly-funded criminal defence services and is an arm of the state. Therefore, PDS lawyers are state employees with fixed salaries, much like the Crown Proesecution Service (CPS), whereas private firms of solicitors and the self-employed Bar - who supply the majority of defence services - are akin to independent contractors, paid with public money. The PDS is a small organisation. It has only four offices - in Cheltenham, Darlington, Pontypridd and Swansea - reduced from eight (Liverpool, Chester, Birmingham, Middlesbrough have all closed). The announcement has quickly generated controversy and drawn criticism, from the Law Society as well as the blogs and Twitter accounts of lawyers. The announcement raises a number of interesting questions, some of which do not necessarily have clear answers:

- Why are the Government investing money in expanding the PDS, whilst proposing fee cuts for all private criminal defence suppliers?

- Is the Government aiming to rebuild the PDS to its original size and beyond?

- Does the Government want to exert more control over the operations of criminal defence lawyers by making them state employees?

- Is this an overt indication that the Government would prefer criminal defence services to be delivered by an arm of the state?

- Is this a first step towards a US-style universal public defender service (which has been much criticised in recent years)?

- Why have the Government not explained their justifications for these appointments at a time of proposed contraction in the defence services sector?

- Does the expansion of the PDS, a public entity, stand in contrast to both the ideology and practice of the Coalition?

- Is the timing of the announcement designed to undermine current opposition to legal aid reforms, perhaps representing a threat that work can be taken away from the private sector?

- Does active recruitment suggest the Government are preparing for strikes by defence lawyers, which the PDS will be used to cover?

- Is the Government poaching key players, in the hope that others will follow? Is it attempting to create divisions between opponents of the reforms?

- Will the temptation of a guaranteed salary and benefits (e.g. pension, holiday, etc.) tempt private sector lawyers away?

- Why has a high-profile circuit leader decided to leave the private sector for the PDS?

- Considering two of the most recent appointments (David Aubrey and Gregory Bull), is there some link between the Welsh Circuit and the expansion of the PDS?

- What position have the two QCs been appointed to? Will they simply be advocates, or are they tasked with any management/business duties?

- Is it wise or fair to appoint QCs on high wages to an organisation that currently provides a very small proportion of criminal defence services?

- What sort of clients will QCs be serving? Will they be involved in VHCC case work? How frequently is high-value work undertaken by the PDS?

- Does the PDS have a monopoly in its operating regions? Does this damage quality of service because of a lack of competition?

- What current evidence is there that the PDS provides benchmarking for quality standards, as claimed by the Government in its 'Transforming Legal Aid' consultation?

- Does criticism of the PDS by privately employed lawyers stem from a fear of competition? Is the private sector truly as competitive as it claims to be?

- Is there an argument to be made that the PDS will provide a guarantee of services to clients should private firms and chambers close in the wake of cuts?

- In the long-term, can the PDS generally pay wages that will attract talent to publicly funded criminal defence work?

- Could a well-funded, properly managed, universal public defender service, with a robust ethical framework and competitive aspects, be as effective as the private sector? Is this a realistic goal?

- How robust would ethical protections for clients be in an expanded PDS? For example, how would the Cab Rank principle cope, how 'zealous' would representation be?

- Would an expanded PDS dilute the independence of advocates, employed as they are by the state?

- Will clients be able to fully trust state-appointed defence lawyers?

- Will  fluctuating pressure on public funding directly impact on the behaviour of lawyers via their superiors - for example, in making plea decisions, accepting clients, use of time for preparation of a case, travel, etc.

- Are the interests and aims of the PDS and the private sector so different as to prevent co-existence and cooperation?

- Considering its current size, would significant expansion of the PDS not take an enormous amount of financial investment and time? Are the Government (and subsequent Governments) willing to commit to this long-term?

- Would the expansion of the PDS require a large shift in clients away from their familiar lawyers? If so, would this create issues of trust between lawyers and clients? Otherwise, would there need to be a simultaneous shift of lawyers and clients to the PDS?

- If the Government is planning to expand the PDS, is it time for a fresh, independent assessment of its effectiveness and value for money?

Any thoughts on these and any other questions would, of course, be welcome !

Thursday, 2 January 2014

Earnings of the Criminal Bar: It's all about timing...

With impending strikes across England and Wales by criminal barristers on January 6th, the Ministry of Justice has chosen to use the first working day of 2014 for a not-so-subtle pre-emptive 'strike' of its own. The MoJ has released figures detailing the earnings of criminal barristers in 2012/2013. The timing is clearly relevant. Whilst one might argue that the beginning of the year is a logical time for publishing such information, a search of the database of Government publications in recent years reveals that no such equivalent statistical release has occurred - not at the beginning of the year or, in fact, at all. As such, collating this information has presumably been specifically commissioned with both target (criminal barristers) and timing (prior to their strike) in mind.

The main findings that will likely be highlighted by the Government are the mean and median earnings - £72,000 and £56,000 respectively. Whilst the explicit purpose of the document is to provide the public with an idea of what criminal barristers' earned last year, I would argue that the implict purpose is to suggest that barristers aren't doing too badly financially. After all, £56,000 a year is more than double the average national salary. The logical progression from this conclusion would be  - 'how can barristers justify striking over fee cuts when they earn THAT MUCH??' The timing of this publication strongly suggests that invoking such a train of thought is the intention.

Importantly, the document clearly underlines the dangers of misinterpretation and the caution with which such figures should be treated. Factors that should be considered include: that the figures may represent several years worth of earnings; that VAT and disbursements (such as travelling expenses) need to be considered; that barristers must cover professional overheads (e.g. a proportion payable to their Chambers); and that the majority of barristers are self-employed and must deduct income tax and national insurance contributions from gross earnings. Moreover, other factors not mentioned should be considered. Self-employed barristers do not have state pension provision and so need to account for this from the earnings above. Barristers are also compelled by the Bar Standards Board to take out professional indemnity insurance - another cost to deduct. 

When considering the amounts earned, one must also remember that the work undertaken by barristers varies enormously in complexity. Very High Cost Cases are usually lengthy and technically challenging, representing the most difficult work criminal barristers can undertake. Harder work should mean a higher reward. Finally, barristers - like similar professionals - have trained for many years and undertaken extensive education in order to serve the criminal justice system, building up very large debts in the process. It seems only fair that such commitment, to a profession that many do not have the skill or determination to enter, should lead to a higher than average salary.

If one deducts the proportions above and weighs the indirect factors mentioned, £56,000 (as an average) begins to look a lot more modest. Add to this the stressful and sometimes traumatic nature of the work, and you have a salary that seems to undervalue barristers. The question is - will the Government, in discussing the findings, mention these factors or will they simply highlight the headline figures? One suspects the latter will occur. If so, this will surely be an attempt to undermine the strike action - which the Bar insists is about preserving a functioning justice system rather than protecting their salaries. One must, of course, consider this statement carefully too; it is rare for a group to strike for entirely altruistic reasons. But the implication that 'fat cat' barristers are striking over pay whilst earning large amounts is obviously misleading and underhand. It is also the oldest trick in the book. If the Government choose to pursue this tactic in the guise of balanced statistical analysis, it will surely be a new low.