Strategic Aim 4: Create Fair and Sustainable Payments and Fees
EVIDENCE TO SUPPORT FEES BEING INCREASED
In his report at page 67, Mr Evans indicates that the legal profession’s argument for increased fees is unlikely to find public support when the perception is that some legal aid lawyers appear to be well rewarded. The numbers of solicitors who have left this branch of the profession in the last decade must at least be seen as some proof that the “rewards” are in no way commensurate with what can be earned in other areas, if the word of those lawyers is not acceptable to Mr Evans.
However, what is most regrettable about this part of Mr Evans’ report is that the perception which he highlights as presenting an obstacle to any increase in rates of pay is compounded by him. This is laid bare at page 70 where the earnings of the leading 20 Advocates and solicitors’ firms are quoted. Mr Evans states on the basis of these that “it is hard to justify a general increase in fees when all those identified above would also receive an increase in their fees from the current very substantial levels”
As far as both sets of fees are concerned, Mr Evans firstly fails to identify that the figures quoted are inclusive of VAT. The figures are also not scrutinised in any way at all, nor is any attempt made to do so it would seem. For instance, no regard is had to the nature, length and complexity of the cases conducted by the relevant party during the period of payment. As far as solicitors fees specifically are concerned, it would appear that Mr Evans has conducted no analysis of the size of the firms in receipt of the payments which he has quoted, the numbers of cases undertaken by those firms or the numbers of staff employed by them.
A person with no knowledge of the system of Legal Aid might be forgiven for thinking that the figures quoted by Mr Evans represent the actual wages or salaries of individual lawyers. Therefore, given that no analysis, caveat or enquiry has been made of or applied to those figures at all, their citation is liable only to entrench the public perception which Mr Evans considers is an impediment to any argument in favour of an increase in fee rates.
Mention has already been made of the numbers of solicitors who have left the profession in recent years. In the context of comparing the workloads of the Crown and defence at page 71, Mr Evans identifies that as of March 2017 there were 1,210 solicitors registered to provide criminal legal assistance. He describes this figure as having “remained steady” since 2012/13 despite a reduction in the numbers of cases proceeding to court in the same period.
The number of solicitors registered to provide criminal legal assistance in June, 2011 was 1,415. Therefore, in the six years leading up to Mr Evans preparing his report, the number of registered criminal solicitors reduced by 14.5%. In any other public service a reduction in the workforce of that magnitude in such a short space of time would be viewed as catastrophic. Since the publication of Mr Evans’ report, that number has fallen to 1,155, a further reduction of just under 5% within a year. For Mr Evans to describe the number of criminal solicitors as in any way “steady” is quite staggering and leads us to question the basis upon which he makes the assertion which he does and – indeed – what (if any) enquiry he made to support the position adopted by him.
It is especially important that Mr Evans’ assertion be the subject of scrutiny because the Edinburgh Bar Association – in its evidence to the review – described itself as being in a critically weakened state having seen the departure of a large number of solicitors, especially young solicitors, in recent years. In fact, approximately 30% of criminal lawyers in Edinburgh have left the field since 2011, with more than two thirds of that figure being female.
COMPARING THE COSTS OF PROSECUTING TO THE COSTS OF DEFENDING
Mr Evans has dismissed any attempt to compare expenditure between the Crown and defence. In his conclusion to this part of the report, he states that criminal Legal Aid is provided to criminal defence solicitors and that the discrepancy of expenditure is around £10 million. The figure which he quotes as representing the defence payment is £85 million in 2016/17. This is not just misleading; it is completely wrong. Criminal Legal Aid expenditure covers payment to both branches of the profession as well as to solicitor advocates. A cursory perusal of the Annual report from which Mr Evans draws the figure of £85 million reveals that payments to solicitors in fact totalled £64 million, a reduction of 9% since 2012/13.
Whether this error was deliberate or the result merely of negligence perhaps does not matter. However, given that the figure quoted by Mr Evans forms the basis for his conclusion that any attempt to compare expenditure on COPFS and criminal Legal Aid is to compare “apples and pears”, it does undermine his entire methodology to the point that those conclusions lack any value at all.
EARLY GUILTY PLEAS
At page 72, Mr Evans reports that
“It may be that the earliest point for an admission of guilt and remorse will shift to the police station interview where there is now a requirement for access to the assistance of a solicitor to be offered to the interviewee if requested.”
He does so in the context of discussing early guilty pleas.
It is perhaps a small point but this is one of the statements which reveal the limits of an analysis undertaken by a person with no knowledge of the systems of criminal justice and Legal Aid. To in any way equiparate the processes involved in the police interviewing a suspect and the tendering of a guilty plea in court is ludicrous: at the most basic level, a criminal suspect is not obliged to answer any question put to him by the police whereas it is a legal requirement for a person facing a criminal charge in court to state how he or she pleads.
“NO UPRATING IN LEGAL AID SINCE 1992”
In the part of his report which commences at page 73, Mr Evans seeks to dismiss any claim that criminal fees have not been increased since being set in 1992. Here, the failure by Mr Evans to conduct any sort of analysis of figures provided to him (presumably by the Scottish Legal Aid Board) has resulted in statements which are at times wildly misleading.
Summary Legal Aid
At page 73, Mr Evans states:
“The 1992 rate applies to around 5% of all income from criminal legal aid fees, and this will diminish further as criminal fee reforms are taken forward. The remaining 95% of fees have been subject to several changes since 2004.”
This one asserton gives rise to a number of comments.
Firstly, the reference to 5% presumably relates to cases in which time and line ABWOR is the method of payment. Whether that figure is correct or not is perhaps irrelevant although it would seem to be a reasonable estimate of that variety of work undertaken by solicitors.
As far as we can see, Mr Evans has failed to identify at any point in his report that it is that 1992 rate which was the basis upon which the original fixed payments for summary Legal Aid were based at the time of their inception in 1999. Those payments represented the average case cost in the summary courts based on the 1992 rate. However, not only was there never an increase in the figures originally set (£500 in the Sheriff Court; £300 in the district), but those have been the subject of very significant reduction in the 19 or so years since.
The fixed fee available in the Sheriff Court under Legal Aid is now £485; in the Justice of the Peace Court it is £295. That there should be a reduction at all in a 19 year period in which annual inflation has averaged 2.8% is alarming enough. However, what is also not identified by Mr Evans is that the fixed fee paid to solicitors now encompasses much more than it did in 1999. Specifically, the first two deferred sentence hearings in any case are covered by that block. Furthermore, the fee also subsumes any advice and assistance given in the case whereas in 1999 that was paid in addition to the block fee. The result is that – at its best for the solicitor – he or she is now undertaking work for a payment of £485 which they would have received £500 for in 1999; at worst, he or she now receives £485 for work which would have attracted £680 back then.
Of the £64 million paid to solicitors in 2016/17, just under £30 million was in respect of summary criminal Legal Aid. For the reasons which we have set out, there has effectively been a significant reduction in the 1992 rate in relation to almost half of solicitors fees. Thus, the assertion by Mr Evans that the rate represents just 5% of all income from criminal legal aid fees is fundamentally misleading in a way which again renders the statement worthless.
Secondly, it is a mystery to us where the reference to “criminal fee reforms” being “taken forward” comes from. As far as we can determine, there are no such reforms under consideration presently. More than a year ago, the Scottish Legal Aid Board produced proposals for fee reform which, they said, were to be the subject of consultation. They were produced at a time when the Board was endeavouring to secure the participation of criminal solicitors on the police station duty scheme. Since then however, we have heard of no plans to actually introduce these proposals.
Furthermore, if these proposals are indeed what Mr Evans is referring to, what he again fails to identify is that the proposals were drafted specifically with the objective of cost neutrality – that they should result in no increase in the criminal Legal Aid spend. With all that said, one really must question where this statement by Mr Evans originates; the suspicion must be that it is based on a pro veritate acceptance by him of a representation made by the Scottish Legal Aid Board.
Solemn Legal Aid
As regards solemn Legal Aid, Mr Evans states, also at page 73:
“A new fee structure in 2010 increased fees by 7%”
He repeats this claim at page 74.
One assumes that Mr Evans is referring here to the introduction of the hybrid payment system in relation to solemn work. At the time of that introduction, it was asserted by the Scottish Government and SLAB that the structure would increase fees for that work by 7%. However, no analysis has been undertaken since then to see whether the promised increase has actually materialised, despite many requests being made for this to be undertaken.
More alarmingly, again what Mr Evans has failed to identify is that the rates introduced in 2010 have since been cut. The hourly rates of £76 and £50.68 have reduced to £73.20 and £48.80 respectively. The payment a solicitor receives for travel necessarily undertaken – something which he or she has absolutely no control over – has been cut in half. It is reasonable to assume therefore that the change which Mr Evans appears to have accepted as a 7% increase is in fact a substantial reduction, in real terms as well as in cash.
Police Station Work
Mr Evans states in this regard, again at page 73:
“In 2010, solicitors’ fees for police station (sic) were increased by one-third.”
Candidly, this Association is unable to identify what it is that Mr Evans is referring to here and so any critical analysis of what he says must be to a degree speculative. The first reason for this is that, prior to 2010, solicitors were not paid at all for undertaking police station attendances – the suspect’s right of access to a solicitor only arose following the well-known Cadder case. The reference to there being any increase to such a fee is therefore unfounded as there was no fee payable to a solicitor which could attract any increase.
Secondly, the suggestion that any rate of payment was increased by a third in 2010 is completely incorrect. It may be that the author is referring here to the uplift given in respect of attendances by solicitors at police stations during hours which were considered to be anti-social – defined as being between 10pm and 7am on any day, including weekends and holidays. If this is indeed what Mr Evans is referring to in making this statement, it defies belief he does not consider it appropriate to caveat the assertion made.
PERIODIC REVIEWS OF FEE RATES
In his report, Mr Evans proposes an elaborate scheme to set and review rates of pay to solicitors. This Association fails to see the difficulty in reverting to the system which existed prior to 1992 of reviewing those rates of pay annually according to inflation. It appears to us that this is the most cost-effective and fair way to review pay given that any change would be referable to empirical financial data. Such a system should be impervious to logical criticism accordingly.
MORALE AMONGST LEGAL AID LAWYERS AND PUBLIC TRUST/RETHINKING PAYMENTS AND FEES
At page 80, Mr Evans claims to have been struck by the low morale of the legal aid solicitors he met. Frankly, it is the impression of this Association that his report has greatly exacerbated that feeling. The fact that a further 5% of the nation’s workforce has departed within a year is testament to that. Mr Evans says that “positive public messaging” is the answer to this problem. Such a statement is insulting to solicitors who have faced year on year cuts to their incomes as we have demonstrated in this paper but which Mr Evans failed in a most basic way to understand.
Criminal Legal Aid solicitors can typically work between 70 and 80 hours a week. Often they will do so for no payment whatsoever as the work involved in securing Legal Aid is more time-consuming than presenting the case of the Applicant in court and can be – and is often – unsuccessful. In such cases, no payment is made at all. This again is something which Mr Evans did not consider worthy of mention in his report.
Ultimately, Mr Evans concludes that “it proved impossible to find robust sources of persuasive evidence for a general increase in fees.” This Association finds this statement extraordinary as all of the information which we have referred to was available to Mr Evans as well. He does however state that “there may well be something in the case that some fees, in some circumstances and in some areas should be adjusted.” He does not elaborate on what he means by this. However, it would be difficult to elaborate on something which is so ambiguous that it almost has no meaning.
One interpretation of Mr Evans’ report is that he sought to address the perception which he identified that some legal aid lawyers appear to be well rewarded. It is difficult to see how he sought to counter it given that he concluded that “a general increase (in fee rates) would benefit some already well-rewarded practitioners”. Furthermore, at page 78 he quotes a focus group participant in stating that “I’ve never seen a poor lawyer”. That a statement of such ignorance should be leant the credence of a specific quote by Mr Evans both compounds the perception highlighted by him and adds to the low morale of the lawyers whom he claims should be the subject of “positive messaging”.
Fundamentally however, the findings of Mr Evans relating to the fees paid for criminal Legal Aid are profoundly inaccurate. The view of the Edinburgh Bar Association is that the assertions which are made concerning a lack of evidence justifying an increase in Legal Aid rates are misconceived and are symptomatic of an approach which is rife with misunderstanding of the systems of criminal prosecution, Legal Aid, and business, some of which can only be described as elementary.