A while ago a mate asked me why it was barristers and solicitors are going mental at the new round of legal aid cuts and “reforms”. I can well understand his confusion, the proposed changes are complex and effect a specialist area. On paper the world of “choice”, “ensuring quality” and “spreading the burden of cuts fairly” can sound reasonable. In reality, they are about as reasonable as syphilis and as sensible as making Harold Shipman Lord Chief Justice. Let me explain why by starting with the present position.
Currently, someone who gets arrested can see a duty solicitor free of charge who can then instruct a barrister to represent them in court. The solicitor can also keep the case themselves and represent the person in court as a “solicitor advocate”. So too the CPS can send a case to a barrister or keep it in house. Many at the bar have issues with this as this has materially cut the number of cases going to barristers, concerns have been voiced about the quality of some non barristers conducting cases in court and many fear that the CPS/Solicitors firms keep cases in house to maximise fees irrespective of whether that advocate is equipped to deal with the case. Mention HCAs (non barrister “Higher Court Advocates” ) to some members of the bar will produce a sort of mini seizure that begins with gibbering and graduates into levels of violent conduct prohibited by the Public Order Act.
In order to understand the reforms the non lawyer also needs to know that when a person pleads guilty in court the advocates involves receive a fee that in general terms equates to a payment per hour better than if the person had contested a trial, because trials take longer. Those are referred to as “pleas” or “cracked trials” when a person pleads on the day of trial. You should also understand that presently lots and lots of little firms and a few large ones conduct criminal cases and that if someone accused of a crime is unhappy of the repent action they are receiving they can apply to a Judge to transfer the legal aid to a different solicitor. I should mention that everyone stupid enough to work in the wonderful world of legal aid crime (myself included) has been subject to an effective pay freeze/real terms cut in fees for years. While some silver fox style QCs at the top of the profession jet around in a swish way like Judge John Deed, most of us get by on earnings that would be a fraction of what some moron with an MBA who goes on about synergy earns.
Finally I want to say something about the unusual nature of those work in the Criminal Justice System in general. Most Magistrates courts will sit well beyond normal court hours to deal with cases where people are in prison, I remember a list in Brighton finishing at 7 once. Court staff, barristers, solicitors stayed because there was a general feeling that dealing with someone facing prison was important. Barristers routinely pull all nighters on cases, they frequently conduct long meetings with clients/CPS staff free of charge because they want the case to be prepared well. I could go on, but I hope you get the picture; courts function because of the goodwill and professionalism of the advocates, judges, probation officers, cell staff etc.
Ok that’s the position as it is now. Enter stage far right Chris Grayling, our first non lawyer Lord Chancellor. This bloke needs to find £200 million worth of cuts from his 9 Bill budget. So far he’s restricted civil legal aid which has featured such gems as removing legal aid ENTIRELY from serving prisoners who want to do things like challenge a parole board who say they’re a danger to the public when the prison hasn’t bothered to fund the courses they need to take to show they’re not dangerous. Extreme example, but let’s be clear, any failures in this entirely costs driven programme will be measured in years in prison for victims of injustice (or the equally frightening reverse of that).
BVT – Brutally Violating any last Vestige of Trust anyone naive enough to trust Chris Grayling ever Had
I’ll try to explain the proposed changes now as best I can. I’ll start with “BVT” which stands for “best value tendering”. This is how it works. You split the country into regions and award contracts to a small number of mega firms to do ALL the criminal work in that area. No more little firms, oh an essentially no transfers, so if you’re stuck with bad representation, well frankly, screw you, because anyone arrested is probably guilty because the police and CPS never get anything wrong. Somewhere like Kent is getting 4 contracts for the whole county. If you don’t get a contract, bad luck, end of your business.
Now let’s look at how the contracts are going to be awarded and who’s likely to get them. Well the position, hilariously, is that cost will be the only criteria provided the new mega firms provide “adequate” service. “Adequate” is the sort of word you associate with a sort of indifferent standard. No one sees a movie because it’s “cheap and adequate”, no one puts “I’m sort of adequate” on a CV; it’s the sort of word that should ring alarm bells when applied to criminal justice. Well, you might counter, if all these people in criminal justice are such hard working angels, won’t essentially be ok as it seems you can pay the idiots less and less and they still get it done? I have three words for you, Eddie F****** Stobart. Yes. This is not a joke. Firms like that and Tescos will be bidding for these contracts. For the avoidance of doubt I want to make clear the only place I’m prepared to wear a “taste the difference” badge is at the all the orgies I’m not invited to because they’re too full of people with MBAs who laugh at idiots who do legal aid. I realise Tesco’s slogan is “Every little helps”, and again for the avoidance of doubt I’m not prepared to wear that anywhere and certainly not to all the orgies I’m not invited to.
The professions (that’s solicitors and barristers) fear the worst about the era of Tescos law, because we take the radical and unreasonable view that high quality legal representation about serious matters is different from flogging someone a horsemeat lasagne. We think the fierce competition between small firms promotes quality. We fear cartel behavior from the few mega firms that get contracts. We worry that this system incentivises employing poorly paid people to do little work on a case as payment is based on a block contract rather than case by case basis. We know individual firms have individual specialisms. And we know that where Defendants have mental Health/drug issues, a solicitor who knows them, their social worker, etc. is a far, far more effective advocate than some bloke in a call centre.
QASA – Apparently pronounced qwazer like lazer, though some prefer the posher “Kwa-Sa”
“QASA” which stands for a “Quality Assurance Scheme drawn up by A*******”, it involves grading advocates 1-4, with grade 4 people allowed to do big important cases and grade 1 people doing your Magistrates shoplifting trial. Think of this like a fig leaf. It’s Chris Grayling’s answer to all the quality concerns I raised in the last paragraph. Here’s how it works. For the first year everyone says what grade they are. I love that part. I’m going to grade myself grade 7, demand a seat on the Court of Appeal and issue a warrant for Chris Grayling’s arrest. Now during that first year you have to get some references to say you deserve that grade. From Judges. I kid you not. So advocates will be required to impress people who they will occasionally feel they have to appeal. If Judges hate you and think your advocacy is rubbish you can opt out of the references model and pay to be independently assessed (by a load of people far too busy independently assessing if people are any good to condescend to actually watch them in a courtroom). Naturally we’re all a bit concerned about this as there’s a place for people describing themselves as Level 1, 2 etc, and that place is the world of warcraft.
Now for the sake of completeness I should tell you the CPS already grades people. QASA differs from CPS grading for this reason though – the Best Value Tendering firm that won the contract says what grade a case is. So, if we apply the business principles of somewhere like Tescos, say they have a load of Level 2 guys and a borderline Level 2/3 case comes in (let’s say a serious injury GBH where the defence is Alibi), keeping it inhouse equals fees for Tescos, what do you think they will do? Pat the taste the difference advocate thing on the shoulder and say, “fear not young Level 2 Padawan, your time will come, for now we must brief the bar as this is probably a double figures sentence”, we doubt it. What a surprise, less work for the bar.
But that’s not the worst bit about QASA, no, the worst bit is POA or “Plea Only Advocates”. These are going to be the PCSOs of the bar, or as one wit at the Criminal Bar Association described them “a bit like pilots who only know how to take off”. Plea Only Advocates will only deal with cases where Defendants plead guilty. They are outside the grading system so they can deal with any sort of case. Let me emphasise that. Someone who is not trusted to litigate a shoplifting can give you advice and deal with your plea on murder. As I said before, guilty pleas are attractive cases funding wise, and the bar in particular are extremely concerned about this measure in terms of their earnings and what it means for quality of representation.
Advice on plea is probably the most important bit of advice a Defendant gets. Most people nicked for Affray have no bloody idea what it is and need it explained. Pleas in historic sexual assault cases require a thorough knowledge of what act applies when and what maximum sentence is available. They also require the brief advising you on plea to be able to say whether they think evidence would be excluded by a judge, whether they think the prosecution could be halted by a legal argument or whether the DNA evidence relied upon by the Crown is technically admissible or could be properly challenged. People with experience of trials (let’s call them “barristers” for old times sake) are excluded from a system where people are deciding whether or not to have a trial. Genius eh.
In summarising the mood among barristers I should like to quote a special advisor to some member of the last government when he wrote in a memo “I’m fucked, you’re fucked, we’re all fucked”. Morale is understandably low and many are quitting, few see a future for the bar and many are justifiably concerned about a system of justice on the cheap and the inevitable drop in quality.