LEGAL UPDATES
It is essential for all police station representatives to keep up to date with the law. However, we are not the best or most comprehensive legal resource on the web and nor do we aim to be. Below are a few cases and bits of legal information that we think all reps should have at their fingertips. Feel free to mail us with any cases you think are essential reading.
| INDEX |
| Competititve Tendering |
| 17yr Olds Need Appropriate Adults |
| Keeping Up to Date |
| Mobile Phones in Custody |
| Voluntary Attendances |
| Two Fixed Fees |
- Firms will be invited to bid for criminal contracts
- There will only be a maximum of 400 winning firms
- Rates cut by 17.5%
- Police station fees cut and harmonised by area
- At least 1200 firms will go out of business. That's a whopping 75%
- Lots of redundant staff. At least 5000 solicitors on the dole
- Expect pressure on reps fees and salaries for the few left standing
- Clients will have a solicitor appointed. No client choice
- The stated intention is to reduce quality
- Autum 2013 - Tender Process Starts
- Summer 2014 - Contracts Awarded
- September 2014 - Service Starts (see big black clock)
Days |
Hours |
Minutes |
Seconds |
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MoJ - The Proposals
House of Commons Library - The Proposals
Otterburn Report
Further Reading:
Sadiq Khan - State Sponsored Miscarriages
John Cooper QC - You Tube Campaign Video
Law Society - Chris Grayling Interview
Human Rights Blog - Breach of Art 6
Steven Bird - Open Letter
The Intigrant - Open Letter
The Guardian - The Dash for Purple
Hansard - House of Lords Speech (Baroness Deech)
The Independent - Rupert Myers Blog
Criminal Bar Association - Speeches (incl Dan Bunting)
Hansard - House of Lords Speech (Lord Thomas)
The Guardian - Dave Rowntree (Blur's Drummer)
The Economist - Too Poor to be Defended
BBC Question Time - Jerry Hayes (Skip to 52:15)
Early Day Motion No 36
Charters Chambers - Open Letter
The Lawyer - Less than Sewage Workers
The Guardian - Will it Work?
Law Society - Sadiq Khan MP (Shadow Lord Chancellor)
The Times - Letter from Academics
Law Society - Firms Snub Contracts
Law Society - Unlawful & Unworkable
Law Society Gazette - Stobart to Bid
BBC - Petition
Max Hardy - Convicting the Guilty
BBC - The Wales Report
Jerry Hayes - The End of the Bar
The Independant - End of Justice for All
Michael Turner - Speech to the Criminal Bar Association
Roger Smith - The Challenge
New Statesman - All Round Stupid Proposal
Coherence - On Standards
Olliers - The Ratner Moment
Dan Bunting - A Tax on Innocence
Dan Bunting - Calculating Crown Court Fees
Olliers - Dear Mr Grayling Funny Letter
Bunting et al - Write to Your MP
Barrrister999 - Hiding the Truth
The Express - Firms to Close
Johnny Void - Chris Grayling, Compulsive Liar
Campaigns:
Facebook Campaign
Protest Summary Page
Twitter - #SaveUKJustice
| Area | No | Area | No | |
| Avon Somerset & Gloucestershire | 12 | |
London West & Central | 38 |
| Bedfordshire | 7 | London North & East | 27 | |
| Cambridgeshire | 4 | London South | 18 | |
| Cheshire | 9 | Merseyside | 14 | |
| Cleveland | 6 | Norfolk | 4 | |
| Cumbria | 4 | North Wales | 4 | |
| Derbyshire | 7 | North Yorkshire | 4 | |
| Devon & Cornwall | 10 | Northamptonshire | 4 | |
| Dorset | 4 | Northumbria | 10 | |
| Durham | 6 | Nottinghamshire | 6 | |
| Dyfed-Powys | 4 | South Wales | 9 | |
| Essex | 7 | South Yorkshire | 8 | |
| Greater Manchester | 37 | Staffordshire | 7 | |
| Gwent | 4 | Suffolk | 4 | |
| Hampshire | 9 | Surrey | 4 | |
| Hertfordshire | 7 | Sussex | 8 | |
| Humberside | 4 | Thames Valley | 4 | |
| Kent | 5 | Warwickshire & West Mercia | 9 | |
| Lancashire | 14 | West Midlands | 20 | |
| Leicestershire | 5 | West Yorkshire | 25 | |
| Lincolnshire | 4 | Wiltshire | 4 | |
| TOTAL: | 400 |
So there will be no competition. None. The firms that survive will not be able to compete with each other.
Realistically, if you are a duty solicitor then the only reason you have a job is so the firm can get its paws on your duty slots. Under the new system the firm will have a set share of the criminal work. No slots means no job. All duty solicitors in England and Wales under the new system are over paid and will probably be sacked.
Stop kidding yourself that your firm will win a franchise. It will not win. The odds of winning are 3-1 against. At least 75% of the firms will go bust. Only a handful will survive and even if your firm does win they are going to either sack you or ask you to reapply for your job. The firms are going to get less money because there is a built in intention to cut fees by 17.5%. If you get a permanent job in-house there is going to be a considerable cut to your salary. With all those unemployed solicitors on the market the pressure on salaries will be downwards.
I am a Duty Solicitor so I take no pleasure in pointing this out.
Any firm that wins a franchise will need someone to attend court of course, but they will not need as many and if they decide to use agents they need none at all.
The same applies to paralegals, legal secretaries and solicitors. The police station reps are not safe either. The only staff that are safe are those with Higher Rights. Even the changes to Crown Court funding are draconian so those with High Rights may not be all that secure. Firms are already shedding staff.
In fact the firms can outsource the court attendances and even the file preparation. The most efficeint firm would be one man and a telephone. He would simply co-ordinate a disparate team of agents. What concerns me is that the firms could be prevented from doing that because its hard to imagine that this is what the Ministry actually wants.
This is the big worry for all those registered on this site. The final draft of the contract may very well insist on the firms dealing with just about everything in-house. Under the current contract firms are supposed to deal with 80% of the work in-house. Most firms simply ignore that requirement. Some have found fancy ways round it by issuing zero hour, zero money contracts to all the reps they use.
Under the new contract it is just possible that Ministry of Justice not only insists on 90% being done in house but enforces it too. Were that to happen then it is game over and we are all screwed. The document certainly envisages agents being used. But its not a final draft.
It is possible, of course, that the firms will not use agents at all. Without any client choice the firms will know months in advance which stations and courts they need to cover and when. If the firm have an eight hour shift at Peckham then all they need is a young, bright eyed, bushy tailed rep to sit at the station for the whole shift. There will be plenty of suitably qualified people on the market and there is always a steady supply of those wanting training contracts. Clearly, that will cause delays for clients and police. But they will simply have to wait in line for that one poor, miserable, underpaid, overworked rep.
Effectively its a harmonisation of fees in each area. Its not a dramatic shift but the new rates are on average 17.5% lower for each area. The harmonisation of fees is probably the only sensible suggestion in the document. However, the figures are only a guide and may well include VAT. The proposal simply is not clear on that point. If that is correct then its a far bigger reduction.
Its worth bearing in mind that all the figures I have quoted are estimates and are not the final numbers. Its is possible the final numbers will be lower. The police have had 25% cuts across the board so the number of arrests is down and falling. Fewer bobbies means fewer arrests. The National Crime Statistics have shown a dramatic decrease in crime. Whatever the reason for the downturn in crime the actual figures are likely to be lower too.
| AREA | TOTAL VALUE | VOLUME | AVE CLAIM | NEW RATE |
| Avon & Somerset | £4,390,044 | 17,387 | £252 | £208 |
| Bedfordshire | £2,110,024 | 8,001 | £264 | £218 |
| Cambridgeshire | £2,170,032 | 9,197 | £236 | £195 |
| Cheshire | £3,707,245 | 14,447 | £257 | £212 |
| Cleveland | £1,964,974 | 9,849 | £200 | £165 |
| Cumbria | £1,166,544 | 4,800 | £243 | £200 |
| Derbyshire | £3,333,411 | 11,995 | £278 | £229 |
| Devon & Cornwall | £4,652,837 | 17,373 | £268 | £221 |
| Dorset | £1,300,924 | 6,681 | £195 | £161 |
| Durham | £3,707,326 | 16,149 | £230 | £189 |
| Dyfed-Powys | £1,463,323 | 5,202 | £281 | £232 |
| Essex | £5,310,993 | 17,498 | £304 | £250 |
| Gloucestershire | £1,236,723 | 5,059 | £244 | £202 |
| Greater Manchester | £9,273,650 | 36,443 | £254 | £210 |
| Gwent | £1,028,736 | 4,024 | £256 | £211 |
| Hampshire | £5,646,681 | 19,714 | £286 | £236 |
| Hertfordshire | £4,010,557 | 11,484 | £349 | £288 |
| Humberside | £2,630,956 | 12,661 | £208 | £171 |
| Kent | £5,219,877 | 16,609 | £314 | £259 |
| Lancashire | £4,934,103 | 21,987 | £224 | £185 |
| Leicestershire | £3,064,161 | 11,484 | £267 | £220 |
| Lincolnshire | £1,829,100 | 7,334 | £249 | £206 |
| London West & Central | £14,236,271 | 42,923 | £332 | £274 |
| London North & East | £14,340,334 | 43,474 | £330 | £272 |
| London South | £17,133,587 | 50,066 | £342 | £282 |
| Merseyside | £4,232,544 | 17,031 | £249 | £205 |
| Norfolk | £2,043,945 | 8,204 | £249 | £206 |
| NorthWales | £2,019,402 | 7,238 | £279 | £230 |
| North Yorkshire | £1,914,836 | 7,823 | £245 | £202 |
| Northamptonshire | £1,976,573 | 7,939 | £249 | £205 |
| Northumbria | £2,543,842 | 11,669 | £218 | £180 |
| Nottinghamshire | £3,726,024 | 14,133 | £264 | £218 |
| South Wales | £5,414,261 | 19,839 | £273 | £225 |
| South Yorkshire | £3,548,859 | 14,728 | £241 | £199 |
| Staffordshire | £3,062,151 | 11,537 | £265 | £219 |
| Suffolk | £1,148,052 | 4,548 | £252 | £208 |
| Surrey | £1,926,972 | 6,477 | £298 | £245 |
| Sussex | £5,531,264 | 20,346 | £272 | £224 |
| Thames Valley | £7,116,482 | 24,349 | £292 | £241 |
| Warwickshire | £1,039,095 | 3,798 | £274 | £226 |
| West Mercia | £2,884,365 | 10,711 | £269 | £222 |
| West Midlands | £9,406,274 | 34,860 | £270 | £223 |
| West Yorkshire | £7,565,612 | 34,041 | £222 | £183 |
| Wiltshire | £1,851,194 | 6,978 | £265 | £219 |
A sensible rep will simply refuse to go further than ten or twenty miles as its uneconomic. That may well create blackspots where no reps will be available. Carlisle, the whole of the South West and Worcestershire spring to mind as places that will have no criminal cover at all.
Black spots seem inevitable. A rep in Leicester probably lives in the city or close by. But who lives in Skegness, Wymondham or Exeter? Who is going to bother bidding for a contract in Lincolnshire? In Lincolnshire each of the four firms will have a police station income of £370K but very few local reps and a vast area to cover.
But there is going to be an issue with long winded attendances. An all day rape is one thing and we can probably all live with a fixed fee for a longish job. But a 14 day terrorism case? Anyone fancy taking on a long weekend on a murder?.
Naturally, the firms will have to take a view as to how to pay the reps and the reps will likewise have to take a view as well. Anything is possible but the firms will have a fixed budget that will be effectively set in stone.
According to the proposal, if a client is arrested and interviewed at one station and then transported to another station for another interview on another matter, then the first firm will not get any extra money and will be repsonsible for the subsequent interviews. So, your client is arrested and interviewed in Carlisle and then taken to Southampton for a second interview on a wholly unrelated matter. The firm will be expected to deal with both. Now that should be fun!
The Ministry of Justice admits in its own small print that the Grayling plans will lead to less effective representation. "We anticipate the proposed competition model may have an adverse impact on clients” the MoJ consultation states “because they would no longer have the choice of selecting any provider to deliver criminal legal aid services." The MoJ adds: “Fee schemes that are largely based on fixed fees mean that providers might make a profit on the fixed fee because relatively little work was required on the case. However, in other cases which required more work, they could make a loss." In other words: its a race to the bottom.
Moving to this new, mad, mad system will affect quality. I am confident that professional lawyers will continue to do their jobs to the very best of their ability regardless of the money. Its just a shame that professional lawyers will be serving chips in McDonalds instead of serving up justice in court.
What will be lost is any hope of every client being represented properly. The industry will not attract the brightest and the best. It will simply maintain a minimum standard. The new system is designed to give merely an acceptable standard. The highest standards will be replaced with a perfunctory plateau of proficiency.
This has been coming for a very long time. It makes no sense but it is what Whitehall wants. I doubt this is intended to save money as in the long term it will inevitably lead to a very expensive public defender service. So alternative proposals that only suggest cutting fees are doomed to failure. This is not about saving money.
This is about cutting the number of firms to as few as possible. When Jack Straw came to the Home Office there were around 7000 criminal firms. Currently there are 1600. These proposals take us to a maximum of 400. The contracts last 3 to 5 years and it seems to me that the number of firms will continue to drop. The legislation allows for a minimum of 6 firms.
Its happened to Civil Law and its happened to Immigration and its even happened to the interpreters. The simple and self evident fact that all three of those reforms were and continue to be a disaster only goes to show that this process is more likely to happen than not.
This is going to happen and there would appear to be very little that could actually stop it. The coalition government are clearly not going to stop it. The next election is May 2015 which will be too late. If there is a delay there is no indication from Labour that they would reverse the policy.
The Daily Mail is not going to support us. The public will not support us. We are the fat cat lawyers milking the system remember. The Law Society will not support us either. Solicitors are prohibited from strike action and any protests will, in my view, fail. Thats not to say we should sit back and let the government put us all out of work. We should shout and scream, protest and march. All I am saying is that this will happen. Get ready for it.
Its hard to imagine firms even bidding for some of the proposed areas. The proposed Greater Manchester area will be split between 37 successful bidders. The total value of the police station business is around £9m and there will be around 36,400 cases. Sounds lucrative at first glance. But each firm will get less than 1000 police station jobs and around £200,000 for their efforts. Take off the cost of the office, the 24 hour staffing and all the other overheads and its not a very attractive business proposition.
Contrast that with Thames Valley where there will be a mere 4 firms each getting around £1,500,000 per annum just for the police station attendances. Its a far more attractive proposal. The firm will have to cover 6,000 police station matters but its far clearer that a sustainable, well managed business could exist.
| Area | Volume | New Rate | No of Firms | Value |
| Thames Valley | 24,349 | £241 | 4 | £1,467,027 |
| Kent | 16,609 | £259 | 5 | £860,346 |
| London South | 50,066 | £282 | 18 | £784,367 |
| Essex | 17,498 | £250 | 7 | £624,929 |
| Sussex | 20,346 | £224 | 8 | £569,688 |
| Humberside | 12,661 | £171 | 4 | £541,258 |
| Hampshire | 19,714 | £236 | 9 | £516,945 |
| Nottinghamshire | 14,133 | £218 | 6 | £513,499 |
| Durham | 16,149 | £189 | 6 | £508,694 |
| Leicestershire | 11,484 | £220 | 5 | £505,296 |
| South Wales | 19,839 | £225 | 9 | £495,975 |
| Hertfordshire | 11,484 | £288 | 7 | £472,485 |
| Cambridgeshire | 9,197 | £195 | 4 | £448,354 |
| London North & East | 43,474 | £272 | 27 | £437,960 |
| Norfolk | 8,204 | £206 | 4 | £422,506 |
| North Wales | 7,238 | £230 | 4 | £416,185 |
| Northamptonshire | 7,939 | £205 | 4 | £406,874 |
| Surrey | 6,477 | £245 | 4 | £396,716 |
| North Yorkshire | 7,823 | £202 | 4 | £395,062 |
| Derbyshire | 11,995 | £229 | 7 | £392,408 |
| West Midlands | 34,860 | £223 | 20 | £388,689 |
| Devon & Cornwall | 17,373 | £221 | 10 | £383,943 |
| Avon Somerset & Gloucestershire | 22,446 | £205 | 12 | £383,453 |
| Wiltshire | 6,978 | £219 | 4 | £382,046 |
| Lincolnshire | 7,334 | £206 | 4 | £377,701 |
| South Yorkshire | 14,728 | £199 | 8 | £366,359 |
| Warwickshire & West Mercia | 14,509 | £224 | 9 | £361,113 |
| Staffordshire | 11,537 | £219 | 7 | £360,943 |
| Cheshire | 14,447 | £212 | 9 | £340,307 |
| London West & Central | 42,923 | £274 | 38 | £309,497 |
| Dyfed-Powys | 5,202 | £232 | 4 | £301,716 |
| Lancashire | 21,987 | £185 | 14 | £290,543 |
| Cleveland | 9,849 | £165 | 6 | £270,848 |
| Dorset | 6,681 | £161 | 4 | £268,910 |
| Merseyside | 17,031 | £205 | 14 | £249,383 |
| West Yorkshire | 34,041 | £183 | 25 | £249,180 |
| Bedfordshire | 8,001 | £218 | 7 | £249,174 |
| Cumbria | 4,800 | £200 | 4 | £240,000 |
| Suffolk | 4,548 | £208 | 4 | £236,496 |
| Gwent | 4,024 | £211 | 4 | £212,266 |
| Northumbria | 11,669 | £180 | 10 | £210,042 |
| Greater Manchester | 36,443 | £210 | 37 | £206,839 |
Much of what I have written is my opinion. I could be wrong. I hope I am wrong. The whole thing could be abandoned or postponed. Home Office ministers come and go and these days they last months not years. There will always be cops and robbers so there will always be criminal solicitors. The work will still be there. There is still hope! Plus ça change, plus c'est la même chose.
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The High Court has found that the PACE provisions for juveniles should apply to those under the age of 18. The UN Convention on the Rights of the Child defines a child as anyone under 18. It would be sensible to make the appropriate representations for any clients afffected.
One of the best ways to keep up to date is to subscribe to the e-mail updates provided CrimeLine. The emails are written by Andrew Keogh. He now has over 12,000 subscribers including criminal lawyers, judges and academics. Each issue provides legal updates including the latest cases, legislation and news. Best of all its FREE!. Click here to sign up or point your browser at www.wikicrimeline.co.uk. The CrimeLine CPD scheme is also well worth checking out.
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ACPO have come to the conclusion that there is a presumption that solicitors hang on to their mobiles in custody. That does not mean that the custody sergeant has been over ruled. The sergeant can still refuse to let you keep your mobile but he does at least have to justify himself and explain his reasoning. Our opinion is that the rep is only in custody to assist the client. If the custody officer demands your mobile then you should hand it over. But if you want to argue the matter this is an essential document to keep in your brief case. Read the full text here: ACPO Mobile Phones |
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Everyone should carry a copy of this case, Richardson v Chief Constable West Midlands. It makes plain that on a voluntary attendance the police cannot presume to arrest. They must consider a voluntary interview. PACE clearly states that the police need to establish the necessity for an arrest. Without a compelling reason like DNA or fingerprints at the scene of a crime there is unlikely to be such a necessity and voluntary attendances should be dealt with by way of a voluntary interview. Read the full text here: Richardson v West Midlands Police |
In order to claim two fixed fees, the rule of thumb is whether there are two distinct matters and two attendances. These cases are easily spotted if they would attract two LA orders or have two distinct police disposals. There is a great deal of confusion surrounding this issue. Hopefully, we can try to make the position clear.
You can claim two bills for one job but it is now much more difficult than ever. Most firms are simply not claiming second bills, which is a shame as they are entitled to them. Basically, you now need to attend on two occasions to claim two bills unless there are two very obviously different matters being dealt with.
THE RULES:
Under the current system the basic rule is that if the matter would
attract two distinct legal aid certificates then the matter should
attract two bills. Two bills can be claimed where there were two distinct
disposals. Where one matter is bailed and the other charged that
attracts two bills but only if the bail is attended by the rep. In order to attend the firm will need to justify its attendance. If one of the disposals is NFA or a caution then it
is still treated as one matter.
If a client is charged and then interviewed for further
matters (whether that is as a post charge interview or a whole new
matter) then that is also a new bill and two attendances would not be required. These rule are not uniformly applied across England &
Wales.
THE NEW RULES:
The LSC guidance can be found here.
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Click on the link for a useful guidance note provided by the Legal Services Commission. |
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Click on the link for another useful guidance note provided by the Legal Services Commission. |
More than one Investigation
9.82 If a Client is subject to an Investigation for which a Police Station Telephone Advice Fixed Fee is claimable and a further Investigation(s) in relation to an arrest or warrant for breach of bail is commenced at the same time, you may make only one Claim for Police Station Telephone Advice in relation to all Investigations.
9.83 If you represent a Client at the Police Station, and that Client is under investigation for a number of different offences, the starting point is that you may only claim one Police Station Attendance Fixed Fee for that Investigation. You may claim more than one Fixed Fee in circumstances where your Client has genuinely separate legal problems requiring separate advice. A file note should set out your justification for this.
9.84 If a Client is bailed to return to a Police Station, that is a continuation of the same Investigation.
9.85 If a Client is charged with an offence, and bailed to return to the Police Station to be investigated for another offence, the attendance on that return date entitles you to claim another Fixed Fee.
9.86 If you advise more than one Client during the course of a single Investigation, one Police Station Attendance Fixed Fee may be claimed
You should also note:
10.68 Where the proceedings involve more than one offence, the definition of Case
consists of three independent elements or tests. One or more of the following
three tests will need to be satisfied to determine whether a Claim for a single
Standard Fee, or a whether two or more Standard Fees may be claimed. If the
answer to any of one of these tests is "yes", then only one Standard Fee may be
claimed:
(a) Are the charges or informations preferred or laid at the same time?
(b) Are the charges or informations founded on the same facts? The test here
is whether the charges have a common factual origin.
(c) Are the charges or informations part of a series of offences? The test here
is whether the offences exhibit some similar feature which would allow them
to be described as a series of offences.
10.69 For the purposes of the definition of a series of offences, a breach of a
community penalty or other court order must be treated as an offence. If the
defendant is before the court for other reasons, then no separate Standard Fee
payment will be made for breach proceedings, irrespective of whether there is
any link between the breach proceedings and any other proceedings being
heard at the same time. If breach proceedings are heard alone then they will
attract a separate Standard Fee.
SUMMARY:
Two bills can still be claimed but generally only if there are two attendances. The second needs to be justified. Normally that justification would be that the client is vulnerable or you could not get the determination of the case in advance from the police.
A word of warning: although you may think a second bill is appropriate
your instructing solicitor may not actually claim it even though they
agree with you in principal. Much of a firm's billing is down to a
firm's relationship with the LSC.
In any event the firm has only 48 hours to obtain the second DSCC
reference number so you should always talk to your instructing
solicitor and get them on board first.
Hopefully that answers your question in a clear as mud sort of way!
If you need any more help please feel free to mail me with the details of the case. You can also go to the criminalsolicitor.net forums and ask the community. The police station or billing forums are particularly good and the users tend to be very helpful.
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