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the LSC™s April 2003 Manual.
160
Over £10 million annually is spent on interpreter services by the police.
161
Fourth Report, Session 2003“4, HC 1171.
162
Legal Aid: Asylum Appeals (House of Commons Constitutional A¬airs Committee, Fifth
Report, Session 2004“5, 15 March 2005, HC 276) para. 22.
163
Available at www.biduk.org/pdf/Justice per cent20Denied/JusticeDeniedFullReport.pdf and
www.asylumaid.org.uk/Publications/Justicedenied.pdf. For a summary and commentary see
˜asylum legal aid crisis: evidence from the frontline™.
596 Costs and the funding of legal proceedings


the poor quality of the sections of the LSC that dealt with immigration and
asylum funding requests and applications: ˜The issue of poor quality Home
O¬ce decisions is now mirrored by the LSC™. The funding cuts had driven many
high quality, experienced legal practitioners from the ¬eld because the cuts
made it impossible for them to carry out the work properly. The precipitous
decline in the number of solicitors™ ¬rms doing this work is very marked. The
Law Society said that just in the six months from September 2005 to February
2006 the number had dropped from 302 to 264.164 (In 2003 there were 617 con-
tracted suppliers.)
In May 2006 a further blow for those working in the ¬eld came with the
announcement that the LSC proposed to axe the contracts of ¬rms that failed
to achieve a 40 per cent success rate in immigration asylum appeals. The
President of the Law Society was quoted as saying: ˜As with retrospective
funding for appeals, the Commission appears to be singling out immigration
solicitors for particularly onerous contract requirements™.

The system in operation
Numbers of providers At the time of the establishment of the LSC some 11,000
¬rms of solicitors were providing legal aid services. The Law Society predicted
that under the new system there would be some 6,000 contracting ¬rms. In fact
the number of solicitors™ ¬rms with contracts from the CLS is already well below
that ¬gure and as a result of the implementation of the Carter Review (see
below) it is likely to decrease further. The Carter Review in July 2006 stated that
there were just under 4,100 ¬rms providing funded services. Over 2,500 ¬rms
(62 per cent) did more than one form of legal aid work (crime, family and other
civil). The rest did just one category “ 597 did only crime, 776 did only civil
work and 236 did only family work.165 Research carried out for the Law Society
by consultants LECG in light of the Carter proposals predicted that if imple-
mented as many as 800 ¬rms (double what Lord Carter had predicted) doing
criminal legal aid work would be forced out of business.166
By contrast, contracts with not-for-pro¬t agencies has been slowly rising. In
March 2006 it was 970.
Numbers of persons being assisted The LSC™s Annual Report for 2005“6 stated
that during the year the LSC delivered 2.6 million ˜acts of assistance™:167 Licensed
Work 194,000, Controlled Work 801,400, criminal other than Crown Court
1,489,000 and Crown Court 121,500.168
Matter starts In 2005“6 there were 283,300 ˜matter starts™ in family law and
498,700 in other work (solicitors 235,000, not-for-pro¬t agencies 190,000 and

164 165
20 Independent Lawyer, May 2006, p. 8. Carter Review, p. 38.
166
Law Society™s Gazette, 28 September 2006, p. 1.
167
Annual Report, 2005“06, p. 6. An editorial in Legal Action acidly drew attention to the fact that
acts of assistance were actually provided by solicitors and not-for-pro¬t agencies rather than
by the LSC. The editorial also queried the ¬gures which it suggested included some double
168
counting. (Issue of September 2006, p. 3.) Annual Report, 2005“06, Table 1, p. 7.
597 The legal aid system


LSC Direct 73,600). The total of 781,900 was 13 per cent up on the ¬gure for
2004“5.169
Overall expenditure The LSC™s Annual Report for 2005“6 reported total net
cash expenditure of £2.1 billion: Licensed Work £547 million, Controlled Work
£284 million, CDS £502 million, Crown Court £695 million and administration
costs £97 million.170
Research into need The introduction of a limited budget requires attention to
the targetting of legal aid funds on the basis of ˜need™. This means having knowl-
edge of populations vulnerable to the experience of legal problems, the impact
of problems, the strategies used to deal with problems and the e¬ectiveness of
di¬erent strategies. The LSC conducts important research into the need for legal
services through the Legal Services Research Centre.171
CLS Quality Mark The Quality Mark or Specialist Quality Mark is a quality
assurance standard for legal information, advice and specialist services
launched together with the CLS in April 2000. Providers of services apply for
the Quality Mark at the appropriate level depending on the services they o¬er.
The CLS publishes annually a Directory split into regional volumes of organi-
sations that have applied for or obtained a Quality Mark. There are over 10,000
organisations quality marked at one or more of the ¬ve levels: Self Help
Information, Assisted Information, General Help, General Help with Casework
and Specialist.
As will be seen, Lord Carter™s review of procurement of legal aid (July 2006)
proposed the transfer of quality assurance for solicitors from the LSC to the Law
Society. But it seemed likely that at least some aspects of the SQM would survive
as LSC contract requirements.172
A CLS Quality Mark for barristers™ chambers (QMB) was launched in
autumn 2002. When the QMB was introduced, the LSC said that ultimately it
would be compulsory for chambers doing publicly funded work but this threat
was withdrawn after complaints by the Bar Council that such restriction of
client choice would breach the Human Rights Act.
CLS Directory Line Callers are provided with details of providers in their
area “ if possible at least one solicitor and one not-for-pro¬t provider.
CLS Direct In July 2004 the CLS launched CLS Direct (tel. 0845 345 4 345).173
Callers can get free advice (charged at local call rates) on a variety of topics: debt,
education, housing, employment, consumer problems and welfare bene¬ts.
The phones are manned 9am to 5pm by quali¬ed advisers from ¬rms or

169
LSC, Statistical Information 2005“06, Table CLS2, p. 4. (See n. 133 above.)
170
Annual Report, 2005“06, Table 1, p. 7.
171
For an account of the methods used by the LSC to assess ˜need™ and for the main ¬ndings of
the ¬rst periodic survey of justiciable problems see P. Pleasence et al, ˜Needs Assessment and
the Community Legal Service in England and Wales™, 11 International Journal of the Legal
Profession, 2004, pp. 213“55.
172
See V. Ling, ˜Grasping the Nettle of Quality Assurance™, Independent Lawyer, October 2006,
p. 29.
173
For details see LSC, 45 Focus, August 2004, p. 6.
598 Costs and the funding of legal proceedings


agencies that have contracts with the LSC.174 In 2005“6 the helpline received
over half a million calls. Some 164,000 callers received free advice from a spe-
cialist adviser. Another 207,000 were given information as to how to ¬nd local
advice providers. A means test is applied. Some 70 per cent of callers are found
to be eligible for legal aid.175
The service also provides information lea¬‚ets available free of charge through
a dedicated Lea¬‚etline (tel. 0845 300 0343). The lea¬‚ets can be downloaded
from www.clsdirect.org.uk or the Just Ask Website (www.justask.org.uk). In
2005“6 over 2.1 million lea¬‚ets were distributed directly to the public and
another 371,000 were downloaded from the Website.176
Community Legal Service Partnerships (CLSPs) The purpose of CLSPs was to
bring together organisations o¬ering legal and advice services “ solicitors, law
centres, Citizens™ Advice Bureaux, local authority advice services and the like.
They were launched in 2000 as a key plank of the CLS. By March 2003 over 99
per cent of the population of England and Wales was covered by a CLSP, but
research three years on by the Advice Service Alliance showed they were not a
success. Many partnerships ˜were dormant or dying on their feet™.177 They had
been deserted by private practice solicitors and crucial community groups.178
What was the point of better co-ordination and analysis of what were the prob-
lems when there was less and less money to spend? In 2004 the LSC informed
CLSPs in London that because of a lack of resources it was ˜no longer able to
provide the same levels of leadership and administration™ as before.179
Community Legal Advice Centres (CLACS) and Networks (CLANS) In March
2006 the CLS published a ¬ve year plan.180 It stated that with local authorities it
planned to establish ˜community legal advice centres and networks™ to provide
services that would range from basic advice to legal representation in the full
range of social welfare problems.181 (A CLAC would be a single entity providing

174
For discussion see A. Gri¬th, ˜Telephone Advice: Complement or Alternative™, Legal Action,
July 2004, p. 6.
175
In July 2004 the LSC published an evaluation of CLS Direct which was then a pilot project. It
showed that clients liked the fact that the service was delivered by telephone when they could
speak from their own home, telephone interviews tended to be more focused so that cases
were resolved more quickly and outcomes were as good or better than traditional casework.
85 per cent of clients said they would recommend the service to someone else (Improving
176
access to advice in the Community Legal Service). Annual Report, 2005“06, p. 16.
177
˜Partnerships and the Community Legal Service™ accessible at www.asauk.org.uk and A.
Gri¬th, ˜Time to Rethink CLS Partnerships?™, Legal Action, February 2003, p. 9. See also R.
Moorhead, ˜Third Way Regulation? Community Legal Service Partnerships™, 64 Modern Law
Review, 2001, pp. 543“62.
178
˜CLSPs: Good Idea or Good for Nothing?™ Independent Lawyer, May 2004, p. 7.
179
Law Society™s Gazette, 5 August 2004, p. 1.
180
Making Legal Rights a Reality, March 2006 “ www.legalservices.gov.uk/civil/innovations/
strategy_for_cls.asp.
181
For the research background see a report by the Legal Services Research Centre (LSRC), P.
Pleasence et al, Causes of Action, Civil Law and Social Justice (2nd edn, TSO, 2006). A
summary of the ¬nding is available at www.legalservices,gov.uk/docs/news/Summary-Main -
Findings-revised-Mar05.pdf. The 2006 survey compares its results with those in 2001 and
599 The legal aid system


the whole bundle of core social welfare law services; a CLAN would be a group
of CLS organisations working together to provide the same legal services as a
CLAC.182) Contracts would be awarded after a tendering process.183 The LSC
planned to open twelve centres over the ¬rst year. This was to be the LSC™s third
venture into directly salaried services.184
The consequences for solicitors™ ¬rms, law centres and not-for-pro¬t agen-
cies providing such CLS funded services in the area could be serious. The LSC
warned that where there was a CLAC or a CLAN ˜we may reduce or not renew
some of our other social welfare contracts from April 2007™.185 In the longer
term, the LSC added: ˜Our direction of travel is clearly one where all legally
aided social welfare advice and representation is provided by a combination of
Centres, Networks and CLS Direct subject to continuing evaluation to ensure
quality, access and value™.186
For a sharply critical and pessimistic reaction see O. Hansen, ˜CLACs and
CLANs “ a New Reality?, Legal Action, August 2006, pp. 8“9. In his view, if the
CLS meant what it was now saying, the future for current providers of social
welfare legal services was bleak.
See also S. Williams, ˜Access to Justice or Tesco Law?™, 157 New Law Journal,
13 October 2006, p. 1537.
For the view that neither local authorities nor private practitioners were likely
to be interested in bidding for CLACs see P. Rohan, ˜Jump or be Pushed™,
Independent Lawyer, November 2006, pp. 26“27.187
In November 2006 a network of Inner London solicitors™ ¬rms and not-for-
pro¬t agencies established their own experimental CLAN covering civil, family
and criminal defence work. A client who came into any of the networked o¬ces
would have any other legal aid problem dealt with by the appropriate ¬rm
without having to shop around. All the members of the network would be
Specialist Quality Mark (SQM) quali¬ed. The hope was that, if it worked, prac-
titioners in other parts of the country would set up their own networks.188

Quality control
Quality control has been one of the central issues for publicly funded legal ser-
vices. From 1994 this was done through franchising of ¬rms. From 2000 the

2004. For an article by two of those involved see ˜Research Details Impact of Civil Justice
Problems™, Legal Action, May 2006, p. 8. See also S. Hynes, ˜Legal Failings Create Social
Exclusion™, Independent Lawyer, May 2006, p. 28.
182
Making Legal Rights a Reality, pp. 8 and 9.
183
LSC, 50 Focus, April 2006, p. 4.
184
156 New Law Journal, 31 March 2006, p. 528. As will be seen, the Public Defender Service has
eight o¬ces wholly funded by the LSC. The LSC has also established a salaried immigration
and asylum legal service in Birmingham “ see LSC, 45 Focus, August 2004, p. 17.
185 186
Making Legal Rights a Reality, p. 9. Ibid, p. 10.
187
The same issue of Independent Lawyer at p. 28 carried an article by V. Ling, ˜Why the sums
don™t add up on CLACs™, as to why the tenders for the Leicester and Gateshead pilot CLACs
failed to attract any interest from private practice.
188
Lucy Scott-Moncrie¬, ˜A Starter CLAN™, Legal Action, October 2006, pp. 6“7.
600 Costs and the funding of legal proceedings


LSC introduced contracting for particular areas of work in which ¬rms say they
had competence. The LSC gave a Quality Mark and a Specialist Quality Mark
as quality assurance standards. All contractors had to have at least the Quality
Mark. Over many years practitioners complained bitterly of the way in which
these issues were handled.189 The House of Commons Constitutional A¬airs
Committee in a report in 2004 on civil legal aid was scathing about the way in
which LSC audits were carried out:
The current system of auditing solicitors™ costs is arbitrary, inaccurate and
bureaucratic. Furthermore, it is not linked to quality of advice given. It is clearly
punishing competent and honest solicitors and is operated in a way which com-
pletely fails to attract the support of the profession. This is the most serious crit-
icism of the current system for managing legal aid work that we have found.190
With a view to improving its relations with suppliers in 2004 the LSC intro-
duced the Preferred Supplier initiative. Preferred Suppliers were service
providers who performed to the highest standards both in terms of quality and
value who, once identi¬ed, would enjoy a variety of advantages in the form
principally of reduced bureaucracy and greater autonomy.
After a pilot with twenty-¬ve ¬rms,191 the LSC in March 2006 issued a con-
sultation paper192 proposing that over the next three years the Preferred Supplier
Scheme would not merely be rolled out nationally. It would be applied to all con-
tracted ¬rms, so that by 2009 only suppliers that satis¬ed the higher tests for
Preferred Supplier status would get contracts from the LSC. (Presumably this
foreshadows a yet further reduction in the number of suppliers.)
The consultation paper recognised that the relationship between the LSC and
providers was not working well and that it needed to be changed:
2.7 The current relationship between the Commission and legal service
providers is not functioning as e¬ectively as it could. This is hampering both the
good quality, value for money legal service providers with whom the future of
legal aid rests, and the Commission. Our objective is to move away from a system
that has relatively low upfront entry criteria but then relies heavily on intrusive
checking and audit. We recognise that this has also become a system where we
have traditionally set up management systems to address the problems caused
by those legal service providers who do not provide good quality and value for
money services, do not comply with legal aid rules and do not provide good ser-

189
˜We have seen them come and go, the franchise management audit, the transaction criteria
audit, contract compliance audits, liaison audits, desktop audits and peer reviews . . . Lever
arch ¬les containing consultation papers, research papers and correspondence with the LSC
over the past ten years would ¬ll a couple of decent sized rooms™. (S. Hewitt, ˜The Preferred
Supplier Pilot™, Legal Aid Review, March 2005, p. 18.)
190
Civil Legal Aid “ Adequacy of Provision, July 2004, Fourth Report of the Session 2003“4,
para. 87.
191
For a positive assessment of the scheme from one of the pilot ¬rms see S. Hewitt, n. 189
above.
192
Quality Relationships Delivering Quality Outcomes, March 2006 “ www.legalservices.gov.uk.
See also LSC, Focus, April 2006, pp. 2“3.
601 The legal aid system


vices for clients. It then applies these rules to all of our providers. However, this
has not wholly addressed the issue of the poorest performers whilst alienating
and getting in the way of a constructive and e¬ective relationship with the best.
To be a Preferred Supplier providers would have to achieve a rating of one
or two at Peer Review and File Assessment in all major categories in which
they undertake work, have a good history of compliance with legal aid req-
uirements, give value for money and have a soundly ¬nanced and sustainable
business.
Preferred Suppliers would have a greater and potentially increasing range of
devolved decision-making powers. Billing and claiming processes would be
simpli¬ed. Inspection and auditing would be signi¬cantly reduced. A Relation-
ship Manager for each Supplier would be appointed by the LSC to help develop
a partnership between the ¬rm and the LSC. The basic concept was to set the
bar higher for ¬rms at the point of entry into publicly funded work and there-
after greatly to reduce the scope of auditing and inspection.

Peer review
In November 2005 the LSC published a report on peer review.193 An earlier
consultation paper indicated that peer review, where ¬rms are judged by expe-
rienced practitioners, would be used nationally as the best measure of quality
of advice and legal work and would be the LSC™s key quality measure. The pre-
vious ways of evaluating standards used by the LSC notoriously had not
addressed the quality of advice directly. Peer review would be able to do that.
The reviewers would examine a sample of ¬fteen case ¬les drawn randomly
using a standard criteria194 and ratings system195 developed by Professor
Avrom Sherr and a team at the Institute of Advanced Legal Studies (IALS).196
The IALS would own and manage the system. It would have charge of issues
such as consistency and training of reviewers. The LSC™s role would only be to
administer the scheme; it would have no involvement in the actual process of
any review. The report stated that the LSC was ˜committed to accepting the
judgments of the reviewer™. Representations from the ¬rm in question about
the review197 would be considered by the reviewer and another senior member
of the reviewers™ panel. The IALS would seek to achieve a unanimous report,

193
Independent Peer Review? The Process, November 2005 “ www.legalservices.gov.uk/peerreview.
The report was the result of a consultation paper Independent Peer Review of Legal Advice and
Legal Work, April 2005. The LSC drew rare praise for having listened to the profession™s
response to the consultation paper “ ˜Groups Line Up to Praise LSC over Peer Review
Scheme™, Independent Lawyer, December 2005, p. 4.
194
Assessing the information obtained from the client, the advice given and the steps taken after
the advice.
195
With a scale of 1“5: (1) Excellence, (2) Competence Plus, (3) Threshold Competence, (4)
Below Competence, (5) Failure in Performance.
196
See R. Moorhead, A. Sherr et al, Quality and Cost “ Final report on the contracting of civil, non-
family advice and assistance pilot™, 2001. The research covered a huge sample “ 140,000 cases
197
including 87,000 closed cases. From ¬rms with a rating of 4 or 5 “ and possibly 3.
602 Costs and the funding of legal proceedings


if necessary by bringing in another person with relevant expertise. Any doubt
would be resolved in favour of the body being reviewed. A review resulting
in a rating of 4 or 5 would be followed by a second review by a di¬erent
reviewer “ immediately in the case of a rating of 5; after six months in the case
of a rating of 4.198

Specialist Support reprieved
In 2000 the CLS piloted Specialist Support “ the funding of specialist advice ser-
vices that could be drawn on by holders of CLS contracts. By 2004 there were
nineteen providers of Specialist Support.199 In April 2005, Focus stated: ˜the
Legal Services Commission is pleased to report that the Specialist Support ser-
vices have proven invaluable and continue to o¬er solicitors and advisors
the support needed to improve access to justice and services to the client™.200 The
services provided free advice, support, mentoring and low cost training. The
support for the expert services o¬ered had been ˜excellent with many organisa-
tions stressing how invaluable the services have been™.201 The funding at that
time was some £2.3 million.
In June 2005 the nineteen providers concluded a lengthy renegotiation of
their three year contracts with the LSC. However, in July, without prior warning,
they were informed that the new contracts would not be signed pending a
general review of LSC expenditure.
Given the warmth of its endorsement of the value of this service it was a con-
siderable shock when in January 2006 the LSC informed the providers of
Specialist Support that all their contracts were being terminated. The director
of the CLS explained to providers at a meeting in February that the service no
longer ¬tted into the CLS™ priorities as the money was better spent on provid-
ing services directly to the public.202
The decision was received with widespread criticism. On 7 March, one of
the nineteen providers, the Public Law Project, started proceedings for
judicial review against the LSC which three days later resulted in an interim
injunction extending the Specialist Support Service until October 2006. The
Constitutional A¬airs Committee of the House of Commons held an emer-
gency meeting and on 14 March issued a report that was highly critical of the
LSC™s decision.203 On 22 March the LSC informed the Committee that it had
decided to rethink the matter. In the meanwhile, the notices of termination
would be withdrawn.204

198
For a practitioner™s positive account of peer review see Legal Aid Practitioner™s Group, Legal
Aid Review, December 2005, pp. 18“19.
199
Most providers were organisations “ Liberty, MIND, Citizens™ Advice Specialist Support Unit,
Child Poverty Action Group, Shelter, Joint Council for the Welfare of Immigrants, Disability
Law Services, Terence Higgins Trust and the Public Law Project. A few were barristers™
200 201
chambers or solicitors™ ¬rms. 47 Focus, p. 22. Ibid.
202
Legal Action, March 2006, p. 4.
203
Fourth Report of the Session 2005“6, HC 919, 14 March 2006. See Law Society™s Gazette, 16
204
March 2006, p. 3. See Legal Action, May 2006, p. 5.
603 The legal aid system


(2) Criminal legal aid205
The 1998 White Paper Modernising Justice also set out the Government™s plans
for criminal legal aid. The Government would set up a new Criminal Defence
Service (CDS) to replace the current criminal legal aid system.206
The CDS would be separate from the CLS running the civil scheme.The two
schemes would have separate budgets but the Lord Chancellor caused conster-
nation when he said in the debates on the Access to Justice Bill: ˜What is avail-
able for civil legal aid is what is left over from the budget after the prior claims
of criminal legal aid have been met™.207 The Lord Chancellor™s words proved all
too prophetic.
The White Paper said that most publicly funded criminal defence services
would be provided by lawyers in private practice, under contracts, working
wherever possible on prices ¬xed in advance. Fixed prices created an incentive
to keep delay to a minimum, they rewarded e¬ciency and allowed quick and
certain payment. So far as possible, contracts would cover the full range of crim-
inal defence services from advice in the police station to Crown Court repre-
sentation. If a case required the services of a specialist advocate this would be
provided under a separate contract. Very expensive cases “ de¬ned then as those
expected to last more than twenty-¬ve days “ would be handled by individually
negotiated contracts. If the CDS and the ¬rm chosen by the defendant could not
agree on terms, the client might be required to choose a di¬erent ¬rm from the
panel. This would enable the CDS to keep a tight rein on expenditure instead of
handing over a blank cheque as the then existing system e¬ectively did.
All contracts would include quality requirements. Firms would have to give
assurances that both solicitors and their unquali¬ed representatives had the
appropriate knowledge and skills. The Law Society™s accreditation scheme
¬rst introduced for police station advice (p. 181 above) could be developed
for this purpose or, if that did not happen, the CDS would be expected to start
its own.
Clients would still have choice of ¬rm provided it had a contract. Change of
¬rm would require the consent of the CDS and would not normally be possi-
ble. (The Government later stated that if a client asked for the duty solicitor in
the police station he would normally be required to stay with the duty solicitor™s
¬rm for the rest of the case. If, however, he asked for his own solicitor in the
police station but ended up with the duty solicitor he would have the right to
change to the solicitor of his choice.) Most ¬rms that undertook a signi¬cant
amount of criminal work would remain part of the scheme, but they should

205
For an account of the story of criminal legal aid from its start to the present see E. Cape,
˜The Rise (and Fall?) of a Criminal Defence Profession™, Criminal Law Review, 2004,
pp. 401“16.
206
On the previous scheme see an excellent collection of essays in R. Young and D. Wall (eds.),
Access to Criminal Justice: Legal Aid Lawyers and the Defence of Liberty (Blackstone, 1996).
207
House of Lords, Hansard, 21 January 1999, col. 738.
604 Costs and the funding of legal proceedings


have to compete for work. One way to meet both these objectives would be to
make ¬rms bid for a larger or smaller share of the work available. Firms would
be awarded more or fewer duty solicitor ˜slots™ on the basis of the prices they
o¬ered both for that work and for subsequent representation.
The CDS became operational as from April 2001. From that date funding of
private practice solicitors to provide advice and assistance on criminal matters,
including in the police station and representation in the magistrates™ court, had
to be through the General Criminal Contract.
Under the system, applications for funding for legal representation, as before,
were made to and decided by the court.

The merits test
The merits test previously was simply whether it was ˜in the interests of
justice™. Prior to the Legal Aid Act 1988 the statutory formula of ˜the interests
of justice™ was not further de¬ned. Instead there was a non-statutory list of cri-
teria that were supposed to be applied to the interpretation of the test for cases
to be heard in the magistrates™ courts. These non-statutory, so-called ˜Widgery
criteria™,208 were replaced with a statutory gloss on the ˜interests of justice™ in
s. 22 of the Legal Aid Act 1988.209 The criteria for the grant of what is now
called a ˜right to representation™ are whether the defendant is likely to face a
sentence depriving him of his liberty or loss of livelihood or serious damage
to reputation; whether the case involves a substantial question of law or the
defendant may be unable to understand the proceedings or to state his own
case; whether the defence involves the tracing and interviewing of witnesses
or expert cross-examination; or that it is in the interests of someone else that
the defendant is represented.
Where the case was being tried in the Crown Courts, it has been regarded
as normally in the interests of justice for legal aid to be granted “ as can be seen
from the remarkable fact that year on year some 95 per cent of those tried in
the Crown Court, regardless of whether they plead guilty or not guilty, are rep-
resented out of public funds. (In 2005, it was 94 per cent of those tried and 80
per cent of those who appeared for sentence only.210) Unlike the position in
other countries, members of the Criminal Bar, including its most eminent
members, spend most of their working lives representing publicly funded
defendants.
However, whether a particular applicant for legal aid in the magistrates™ court
got it has depended as much as anything on the accident of which court he
applied to. Courts varied considerably in their policy as regards the granting of


208
So called because they were formulated by the (Widgery) Report of the Departmental
Committee on Legal Aid in Criminal Proceedings, 1966, Cmnd. 2934, para. 180.
209
This is now to be found in virtually identical language in Sch. 3 of the Access to Justice Act
1999, para. 5(2) (˜criteria for grant of right™).
210
The ¬gures are given each year in the annual Judicial Statistics, Tables 10.2 and 10.4.
605 The legal aid system


legal aid.211 Research found considerable di¬erences in interpretation of the cri-
teria. It also found that many (perhaps most) grants of legal aid were made in
situations where the criteria did not apply, or where, if they did apply, they were
given little weight by court clerks. Instead, the system that seemed to operate in
most courts was that for some o¬ences legal aid was automatically granted, for
others almost automatically refused, while in the middle was a grey area where
the arguments presented by or, more likely, on behalf of the applicant could
make a di¬erence. Some court clerks were too generous, some were too
severe.212 The problem has not been the subject of recent inquiry but no doubt
that continued to be the case.
The Legal Aid Act 1988, s. 21(7) provided that where a doubt arose as to
whether legal aid should be granted to a person, ˜the doubt shall be resolved in
that person™s favour™. There was no equivalent in the Access to Justice Act 1999.
The Criminal Defence Service Act 2006 transferred responsibility for the
grant of legal aid to the LSC. In order to promote consistency in decision-
making (and to have better control) the LSC delegated the actual decision not
to the courts but to the court sta¬. The interests of justice test is therefore now
an administrative act. But a person refused legal aid has the right to appeal to
the magistrates, guided by instructions from the Commission.213. The LSC
announced that ˜legal advisers will initially work with administrative sta¬ to
carry out the interests of justice test in order to embed the new procedure™.214

The means test and contributions
The basis of the means test used to be imprecise. Courts were supposed to follow
broadly the same ¬nancial tests as applied to civil cases. The general test was
whether it appeared to the court that the applicant™s means were such that he
required assistance in meeting the costs. Unlike the civil scheme, however, the
criminal scheme had no upper limit “ so even a relatively a¬„uent person could
qualify if the case was likely to be a long and costly one. The test was what a
person could reasonably be expected to a¬ord without altering their life style.
Contributions From the start the criminal legal aid scheme had a contribu-
tion aspect but again this was on a very di¬erent basis from that in the civil
scheme. Until 1982, the court had a complete discretion as to whether to ask for
a down-payment or to demand a contribution after the completion of the case.
Both the contribution order and its amount were entirely in the discretion of
the court and, inevitably, courts varied considerably in their approach.


211
R. Young, ˜The Merits of Legal Aid in the Magistrates™ Courts™, Criminal Law Review, 1993,
pp. 336“44 and R. Young and A. Wilcox, ˜The Merits of Legal Aid in the Magistrates™ Courts
Revisited™, Criminal Law Review, 2007, pp. 109“28. The latter article revisits the ¬ndings of
the research carried out in 1992 and considers how discretion is likely to be operated under
the Criminal Defence Act 2006.
212
Criminal Law Review, 1993, pp. 336 and 343.
213
For details of the instructions see A. Keogh, ˜In the Interests of Justice?™, Independent Lawyer
214
October 2006, pp. 26“27. LSC, 20 Focus on CDS, September 2006, p. 8.
606 Costs and the funding of legal proceedings


This was changed by the Legal Aid Act 1982, the chief purpose of which was
to raise more revenue from contributions. The Act proceeded on the basis that
defendants should have to pay for their legal defence whatever they could a¬ord
according to rigid criteria as in civil cases. This policy was continued by the
Legal Aid Act 1988.
The fruits of this legislation were however meagre. Only a tiny proportion of
defendants were ordered to pay contributions and the aggregate amount of
money recovered was small. In May 1999, Mr Geo¬ Hoon, Minister of State,
told the House of Commons: ˜the total value of contributions collected is barely
enough to pay for the direct costs of running the system™.215 (In 2000 the total
amount recovered in the form of contributions was £5.9 million “ under 1 per
cent of expenditure on criminal legal aid.216) The system was not merely unpro-
ductive, it was also erratic and ine¬cient. The system of vetting legal aid appli-
cations was repeatedly censured by the National Audit O¬ce and in the annual
reports of the Comptroller and Auditor General.
The Government™s solution, Mr Hoon told the Standing Committee on the
Access to Justice Bill in May 1999, was to scrap means testing for applicants and
instead all courts other than magistrates™ courts should have a duty to consider
at the end of a case, whether a defendant should pay his defence costs. That
would be done by a Recovery of Defence Costs Order.217
The new system abolishing up-front contributions became e¬ective as from
October 2000.218 From that date anyone who successfully applied for a Right to
Representation Order got legal representation initially without charge. Those
tried in the magistrates™ courts, or who were sent to the Crown Court for sen-
tence only, or who appealed to the Crown Court could not be asked to make a
contribution. Save in exceptional circumstances, the same was true for someone
who was acquitted in the Crown Court.
However, anyone committed for trial in the Crown Court who is convicted
or who pleads guilty can be liable for defence costs. Such a person has to ¬ll in
a Form B setting out his ¬nancial situation. If no Form B was ¬lled in, save in
exceptional circumstances, the judge has to order the defendant to pay the full
amount of the defence costs to the Legal Services Commission.219 If Form B is
¬lled in and discloses su¬cient income or other assets, the court can make a
Recovery of Defence Costs Order. The regulations exempt the ¬rst £3,000 of the
defendant™s capital, the ¬rst £100,000 of the equity in his principal home and
income of up to £24,000 per annum. The judge has a duty to consider making
an order at the end of the case. He has to decide whether the information before
him is su¬cient. His powers include the power to investigate the defendant™s

215
House of Commons, Standing Committee E, 29 April 1999, col. 83.
216
Judicial Statistics, 2000, p. 102, Table 10.7.
217
House of Commons Standing Committee E, 11 May 1999, col. 239.
218
Legal Aid Act 1988 (Modi¬cation) Regulations 2000.
219
Criminal Defence Service (Recovery of Defence Costs Orders) Regulations 2001, SI 2001/856,
reg. 13.
607 The legal aid system


partner and any other third party where it appears that the defendant has delib-
erately removed assets.
If in doubt, the judge can refer the matter to the LSC for a report.220 The
LSC then sends a report to the judge who can ˜make any necessary further
inquiry™.221
The abolition of means testing for cases dealt with by magistrates coincided
with, and was assumed to have been the cause of, a signi¬cant rise in the number
of grants of criminal legal aid. Panicked by this increase, the DCA in May 2004
published a draft Bill, accompanied by a consultation paper222 aimed at making
two major changes. One was to transfer authority to grant criminal legal aid
from the courts to the LSC. The second was to reintroduce a means test.223 The
motivation behind the Bill was clear. The consultation paper stated:
˜Expenditure on criminal legal aid in 2002/03 exceeded original provision by
more than £140 million. The numbers of individuals applying for and getting
public funding had risen by about 40 per cent™.224 The courts were being too
generous in making grants of legal aid. (˜There is some evidence that courts
have been too favourable to defendants . . .™225) Also, many who previously
would have been privately represented or who would have represented them-
selves were applying for, and getting, legal aid. The re-introduction of the means
test would ˜focus the resources on those that need help most™.226
The proposals in the Draft Bill were the subject of an unusually critical report
by the House of Commons Constitutional A¬airs Select Committee.227 The
Committee approved of the objective of controlling the rising cost of criminal
legal aid and the policy that those who can a¬ord to pay for their own defence
should do so, but it considered that the proposals were unworkable, ill-
considered and likely to prove ine¬ective “ and in breach of the ECHR.
When the Bill was introduced into Parliament it had been altered by the
Government to give the task of means testing, as before, to court clerks.228 It had
also been changed to give the applicant a right of appeal against a refusal of legal

220 221
Ibid, reg. 7. Ibid, reg. 12(b).
222
Draft Criminal Defence Service Bill, consultation paper and Explanatory Notes, 2004, Cm.
6194.
223
The DCA™s consultation paper o¬ered three possible models: (1) a simpler version of the old
means test with no upper limit for income and a contribution of a ¬‚at rate 10 per cent of
anticipated costs; (2) an ˜all or nothing™ model where the defendant would be eligible if his
gross household income was below £25,000 and his gross capital was under £5,000; and (3) a
˜sliding scale™ model where contributions would be paid only on income on a sliding scale.
224
DCA consultation paper, Annex C, para. 11. The number of cases in which defendants got
legal aid orders for trials in the magistrates™ courts in the years 1993“8 ¬‚uctuated between
432,000 and 494,000. In 1998“9 it rose to 503,000. In the following two years it was down to
475,000 and 467,000, but in 2001“2 it rose extraordinarily to 598,000. In 2002“3 the ¬gure
225 226
was 576,000. DCA consultation paper, para. 40. Ibid, para. 49.
227
Fifth Report of Session 2003“4, HC 746“1. For an account of the criticisms see 18
Independent Lawyer, September 2004, pp. 4“5.
228
Under the Draft Bill the LSC would have delegated means testing to solicitors. The Select
Committee and many others pointed out that this would create a serious con¬‚ict of interest
issue.
608 Costs and the funding of legal proceedings


aid on the grounds of the interests of justice229 (though not on means).230 The
appeal would be in writing “ initially to the justices™ clerk and if refused, to the
magistrates.231
The Criminal Defence Service Act 2006 took e¬ect on 2 October 2006.232 It
applies only to cases in the magistrates™ courts but there were plans to extend it
to Crown Court cases in 2007.
The DCA promised that the new means test would be light on bureaucracy
and that it would not cause delays in the criminal process but there was little
hope that this would prove to be the reality. The applicant had to submit an
Application for Legal Aid in criminal proceedings form (CDS14) plus a fully
completed Financial Statement form (CDS15). The forms are long and compli-
cated.233 Many applicants will need help to ¬ll them in. It was predictable that
court sta¬ would be spending time helping applicants do so.
If the defendant was helped with the forms by a solicitor who represented
him at the ¬rst hearing before the legal aid issue had been decided, the lawyers
theoretically could claim a modest fee of £75 under ˜Early Cover™ even if legal
aid was ultimately refused. However, the £75 fee was subject to what criminal
lawyers were calling ˜nonsensical™ provisions seemingly designed to ensure that
they could not make an Early Cover claim.234 In the ¬rst week of the operation
of the means test hundreds of criminal defence solicitors across the country
signed protocols pledging that they would refuse to represent clients until they
knew they would receive legal aid, in protest at the ˜shambolic™ means-testing
system.235

229
The Joint Committee on Human Rights expressed concern that the Government might be
intending to move toward a discretion as to whether the interests of justice required
representation rather than a right as required by the ECHR. (Scrutiny: Second Progress Report,
2004“05, February 2005, HL 41, HC 305, para. 2.10.)
230
There would only be an appeal on means to the LSC and then only for a change of
circumstances or miscalculation of the ¬gures by court sta¬. The Joint Committee on Human
Rights suggested that the lack of an appeal to an independent tribunal on eligibility with
regard to means would be open to challenge under the ECHR, n. 229 above, p. 16.
231
Both the Joint Human Rights Committee and the Constitutional A¬airs Committee criticised
the Draft Bill for failure to provide such a right of appeal which they said would be a breach of
Article 6 of the ECHR. See the decision of the Strasbourg Court in Granger v. United Kingdom
(1990) 12 EHRR 469.
232
See the Criminal Defence Service (Financial Eligibility) Regulations 2006, SI 2006/2492.
Detailed information in relation to the means test can be found at www.legalservices.gov.uk/
criminal/getting-legal_aid/index.asp. A full account of the legislation and of its likely costs
and bene¬ts is to be found in the Regulatory Impact Statement issued by the DCA “ www.dca.
gov.uk/risk/crime-defence-act-ria.pdf.
233
For the forms go to the LSC Website “ www.legalservices.gov.uk/criminal/forms//cds.asp.
234
Early Cover was originally only payable if (1) the defendant had submitted his application
within two days of being charged; (2) no decision on legal aid had been reached by 9am on
the day of the hearing; and (3) the ¬rst hearing advanced the case and an adjournment was
justi¬ed. Where legal aid is refused on the interests of justice test, the lawyer could claim for
one hour™s work under what was called Pre-Order Cover. (See Law Society™s Gazette,
21 September 2006, p. 3.)
235
Law Society™s Gazette, 5 October 2006, p. 1. For a weary comment on the shambles and a
suggestion that LSC incompetence might show that it was not ¬t for purpose see A. Keogh,
609 The legal aid system


The furore over the implementation of the new system was so great that the
Government was forced to amend the scheme. In a letter addressed to practi-
tioners on 23 November 2006 the LSC™s Director of the CDS announced that:
• where a defendant quali¬ed for legal aid, the solicitor would be guaranteed
payment from the date when the court received the original application even
if the application was rejected because of some technical defect;
• application forms would no longer require the counter-signature of the appli-
cant™s partner if evidence was provided that the partner was unable to sign;
• payment under the Early Cover scheme would be made if the application
form was submitted within ¬ve (as compared with two) working days from
¬rst instructions, providing this was not after the ¬rst hearing;
• all the forms were being reviewed with a view to making them simpler and
shorter.236
A client who is in custody and who therefore cannot provide the necessary doc-
umentation can sign a Statement of Truth (CDS17), but this depends on his
being able to state both his income and his outgoings from memory. (What
mentally disordered defendants were supposed to do was not clear.)
Under the new means test, defendants whose ˜adjusted™ income237 is below
£11,900 get legal aid automatically.238 Those whose adjusted income is above
£20,740 do not qualify. Those earning between £11,900 and £20,740 have their
¬nances examined to see whether their ˜disposable™ income after deductions for
various forms of expenditure239 brings it below £3,156. (If the individual has a
partner, the partner™s resources must be added-in unless he/she has a contrary
interest in the case.) Eligible defendants pay no contribution. No account is
taken of capital.
The LSC set targets for its sta¬ of 90 per cent of applications being processed
by 5pm on the day after the application, 99 per cent by 5pm on the third day
and 100 per cent by 5pm on the sixth working day. This was ambitious.
Where someone needs legal aid but his application is refused there are two
fail-safe provisions. If a court considers that it would be in the interests of justice
for an unrepresented defendant to have representation, then provided that
the person is eligible under the means test, a representation order must be

˜Means Testing “ a Sign of Things to Come?™, 156 New Law Journal, 6 October 2006, p. 1489. For a
news item ˜Means testing branded bureaucratic nightmare™ see ibid, p. 1491. See further, Ed Cape,
˜Criminal Legal Aid Means-Testing: Fair Justice? Fair Price?™, Legal Action, January 2007, pp. 6“7.
236
On 17 January 2007 the Government announced that, starting in May, it would be carrying
out a review of the ¬rst six months of the operation of the new means testing system (Law
Society™s Gazette, 25 Janary 2007, p. 4).
237
Gross annual income divided by weighting adjusted income. ˜Weighting™ for a single adult
is 1.00 plus the total weighting for children. The weighting for a couple is 1.64 plus weighting
for children. Weighting for children varies according to age from 0.15 for those under one
year to 0.59 to those between sixteen and eighteen.
238
So do those on Income Support, income-based Jobseeker™s Allowance or a State Pension,
anyone under sixteen or under eighteen if in full-time education.
239
Tax, National Insurance, rent or mortgage payments, an allowance for cost of living expenses etc.
610 Costs and the funding of legal proceedings


granted.240 Also, the LSC has the power to make a representation order in favour
of someone whose means take him outside the limits of the scheme where he
˜does not have su¬cient means to pay for the cost of legal assistance™.241
The Government estimated that under the new means test, of the 650,000
currently getting representation orders, some 110,000 would no longer be eli-
gible, with potential savings of some £35 million.

Very High Cost cases
Special rules apply in very high cost criminal cases “ now de¬ned as any case
predicted to last for forty-one days or more at trial.242 Such cases absorb a
grotesquely large proportion of the total criminal defence budget “ 1 per cent
of Crown Court cases accounting for about half of all Crown Court legal aid
expenditure. Regulations provide that such cases require an individual case con-
tract. They are managed by the Complex Crime Unit at the LSC. There is a
three-monthly case plan. The work to be done is agreed in advance. Fees are
based on the seniority of the practitioner and the level of seriousness and com-
plexity of the case.243 The LSC™s annual report for 2005“6 said it entered into
414 such contracts in the year.244

Duty solicitor schemes in magistrates™ courts
A national scheme for the establishment of duty solicitor schemes in magis-
trates™ courts was provided for by the Legal Aid Act 1982. The basic idea was
that the defendant who comes to court without having seen a lawyer should
have someone to provide preliminary advice “ as to his plea, whether to ask
for an adjournment and whether to apply for legal aid or bail “ and rep-
resentation. Originally the scheme was run by the Law Society through
regional committees. The running of the schemes became part of the respon-
sibility of the Legal Aid Board when it took over the management of the
scheme in 1988.
The scheme continued broadly una¬ected by the transfer of responsibility to
the LSC.
In 2005“6, the numbers assisted under the scheme were 86,000 at a total cost
of £19.8 million.245


240
Criminal Defence Service (Representation Order and Consequential Amendments)
Regulations 2006, para. 10.
241
Criminal Defence Service (Financial Eligibility) Regulations 2006, SI 2006/2492, para.
14(1)(b).
242
Changed from twenty-¬ve days in 2004. LSC, 14 Focus on CDS, March 2004, p. 5; and 16,
December 2004, p. 3. Originally, shorter cases where defence costs were likely to be above
£150,000 were also within the de¬nition, but this measure was dropped in August 2004.
243
In 2004, proposals for changes in the payment of barristers in these cases led to an
unprecedented strike. The strike was settled with agreement for an extra £17 million. (Law
Society™s Gazette, 1 July 2004, pp. 1 and 16“17.)
244
Table 6, p. 22. This does not necessarily equate to the number of cases as there may be more
245
than one contract per case. LSC, Annual Report 2005“06, Table 6, p. 22.
611 The legal aid system


Duty solicitor schemes in police stations
As was seen above (p. 178), duty solicitor schemes were set up under PACE to
assist detainees in the police station. Like the schemes for courts, they were
originally run by the Law Society, then by the Legal Aid Board and now by the
LSC.
They operate on either a rota or a panel basis246 with local practitioners.
Such schemes cover all the 1,645 police stations in the country.247 There are
elaborate rules as to the quali¬cations required and the selection process
involved for those participating in these schemes. The Law Society and the
LSC have in recent years made serious attempts to improve the quality of
the advice given under the scheme, both by solicitors and others (known as
˜representatives™).248
In around two-thirds of cases the solicitor called out is the suspect™s own
solicitor. There is a ¬xed fee for telephone calls (regardless of whether they are
routine or for advice)249 and a higher fee for attendance at the police station.
From the outset there has been no means test and no contribution in respect
of work done under either of the duty solicitor schemes.
In 2004, cutbacks in the scheme were implemented as a way of saving
money.250 The basic policy was that less serious matters and matters where the
lawyer cannot in practice achieve anything of signi¬cance for the client should
either be removed from the scheme or restricted to telephone advice only.
Payment is now made only for telephone advice if the client is detained for a
non-imprisonable o¬ence, for various driving o¬ences (driving with excess
alcohol or failing to produce a specimen), for breach of bail conditions or failing
to appear. Payment for attendance at the police station is paid for however if one
of the exceptions applies and the Su¬cient Bene¬t Test is satis¬ed.
The exceptions are: If an interview or identi¬cation procedure is going to take
place; the client, being a juvenile or mentally vulnerable, is entitled to assistance
from an appropriate adult; the client requires an interpreter or is otherwise
unable to communicate over the telephone; the client complains of serious mal-
treatment by the police or the lawyer is already at the police station. But even if

246
In rota schemes the solicitors are nominated in advance for a set period during which they
must make themselves fully available “ night or day. In panel schemes the phone service
running the scheme calls one solicitor after another until it ¬nds one available. Rota schemes
tend to be used in urban areas, panel schemes in less busy rural areas.
247
The number of ¬rms serving a particular police station varies greatly. The Carter Review
(p. 24, para. 17) contrasted Bristol with thirty-one ¬rms per police station against London
with 85.
248
In November 2005 these requirements were extended to solicitors acting for their own
clients “ see Focus on CDS, October 2005, p. 5. At the same time the Law Society was engaged
in a consultation exercise as to whether those already accredited under the Criminal Litigation
Accreditation Scheme should have to re-qualify every ¬ve years (ibid, p. 4). For an exchange as
to the merits of this proposal see Independent Lawyer, December 2005, p. 24.
249
Until 2004 a higher fee was paid for calls involving advice.
250
The changes were heralded by consultation papers published in 2003 by the DCA and the LSC
both with the same title Delivering Value for Money in the Criminal Defence Service?
612 Costs and the funding of legal proceedings


an exception applies the lawyer will only be paid for attendance at the police
station if it would be of su¬cient bene¬t to the client.251
In October 2005, as noted above, the LSC began an experiment (called CDS
Direct) with a telephone advice service sta¬ed by quali¬ed employees252 for
matters restricted to telephone advice only “ unless one of the exceptions
applies. In two areas, Liverpool and Boston, the pilot covered all police station
work other than indictable-only cases and cases where the time of the interview
is known when the request for the duty solicitor is made. In those two areas, the
CDS Direct lawyer gives initial advice and decides whether attendance in the
police station is necessary, in which case the matter is passed on to a solicitor™s
¬rm.253
In 2005“6, 766,000 suspects in the police station were advised under the
scheme.254 Roughly 80 per cent of the cost is for advice given in the police station
and 20 per cent for advice given over the telephone. The total cost in 2005“6 was
£171 million.255
For the recommendations of the Carter Review regarding police station duty
solicitor services see pp. 620“21 below.

Public defenders
The most controversial proposal in the 1998 White Paper Modernising Justice
was that, in addition to contracting with lawyers in private practice, the CDS
would also be able to use publicly funded salaried lawyers. Evidence from other
countries, it said, suggested that properly funded salaried defenders could even
be more cost-e¬ective and could provide a better service than lawyers in private
practice.256 But before taking the ¬rst steps in this direction, the CDS would take
account of the pilot scheme involving public defence solicitors which was cur-
rently running in Scotland.257
The Public Defender Services (PDS) was set up in May 2001 as a four year
pilot project. In its ¬rst year it had opened three Public Defender O¬ces. By


251
For details see Legal Action, October 2004, p. 14.
252
Solicitors holding the Law Society™s Police Station Quali¬cation or accredited police station
representatives.
253
LSC, 15 Focus on CDS, August 2004, p. 8; 16, December 2004, p. 3; and 18, October 2005, p. 3.
254
Lord Carter™s Review of Legal Aid Procurement “ Legal Aid: A market-based approach to
reform, July 2006 (Carter Review), p. 24. In 2001“2, the ¬gure was 616,400. The rise in the
four years to 2005“6 was 24 per cent.
255
Carter Review, p. 24. In 2001“2, the ¬gure was £126.9 million. The rise in the four years to
2005“6 was 35 per cent.
256
The White Paper cited T. Goriely, Legal Aid Delivery Systems: which o¬er the best value for
money in mass casework? (LCD Research Series No 10, December 1997).
257
See A. Watson, ˜The Public Defence Solicitors™ O¬ce: The Background to its Introduction
in Scotland™, Scottish Law Gazette, September 1998, p. 117. In June 2000 the LCD
published a consultation paper, Criminal Defence Service: Establishing a Salaried Defence
Service and Draft Code of Conduct for Salaried Defenders Employed by the Legal Services
Commission. See also T. Goriely, ˜Evaluating the Scottish Public Defence Solicitors™ O¬ce™, 30
Journal of Law and Society, 2003, pp. 84“101.
613 The legal aid system


2004 there were eight.258 The PDS™s ¬nal report on the pilot was published in
2006.259 This claimed that the pilot had been a success. All eight o¬ces had
achieved the category one (highest) rating, all but one had ˜competent plus™
rating in peer review and there was high client satisfaction. In 2005“6 the service
dealt with 5,900 cases.260
Private practitioners understandably felt aggrieved about the level of funding
provided by the PDS for sta¬, premises and other facilities but Anthony
Edwards261 told the Criminal Law Solicitors™ Association annual conference in
2001 that although the PDS plainly was unfair competition this was to miss the
point. Setting up a pilot PDS was a part of the Labour Party™s manifesto at the
last election. ˜Like it or not, fair or not, an elected Government is entitled to
carry out its manifesto commitments.™
In February 2003 the Law Society canvassed the idea that a salaried
public defender (and civil legal) service might be a solution to the crisis in
legal aid funding.262 The legal aid practitioner™s journal The Independent
Lawyer described this as a ˜spectacular volte face™ by the Society which had
previously been, at best, deeply sceptical about salaried provision for legal
services.263 Ironically though, the Law Society was warming to the PDS just
as the Government seemed to be losing enthusiasm for the project.
Baroness Patricia Scotland QC, the Government minister, in a letter to the
Legal Aid Practitioner™s Group, had con¬rmed that expansion of the pilot
project from its existing eight o¬ces had been halted. (˜No new PDS o¬ces
will be opened in 2003 . . . unless external factors, such as the collapse of
coverage in a particular area, necessitates the [Legal Services Commission]
starting a new o¬ce™.) The minister™s statement followed con¬rmation by
the LSC264 that the PDS was more expensive than private practice “ ˜which
would seem to rule out a nationwide service being a solution to the funding
crisis™.265
See generally D. O™Brien and J.A. Epp, ˜Salaried Defenders and the Access to
Justice Act 1999™, 63 Modern Law Review, 2000, pp. 394“412. Their conclusion
was that the primary reason for the reforms was the desire to control legal aid
costs, but if lessons were learnt from other jurisdictions, a well managed state
salaried service could provide a service that would match the quality of the
service provided by private practitioners. Equally, if managed poorly, it would
be an inferior service. In other words, no delivery model was inherently inferior

258
In Birmingham, Cheltenham, Chester, Darlington, Liverpool, Middlesbrough, Pontypridd
and Swansea.
259
Public Defender Service Annual Report 2004“05 “www.legalservices.gov.uk/docs/pds/
260
PDSannual_report_¬nal.pdf. LSC, Annual Report 2005“06, p. 23.
261
An experienced defence solicitor and member of the LSC who had been appointed
Professional Head of Service for the PDS.
262
Law Society consultation paper, The Future of Publicly Funded Legal Services, February
263
2003. Issue 8, March 2003, p. 3.
264
See 5 Independent Lawyer, October 2002, p. 10.
265
8 Independent Lawyer, March 2003, p. 3.
614 Costs and the funding of legal proceedings


or superior, but the PDS should o¬er a complementary service not one that
simply competed with private practice.266
In its 2001 report Public Defenders: Learning from the US experience JUSTICE
said that ˜what was clear without exception was that, within each US jurisdic-
tion, the public defender system was acknowledged to be superior, in terms of
quality, support and resources, to the publicly funded private bar operating
alongside it™ (p. 7). Criticisms of US public defender systems, it said, were ˜not
based on arguments about the inadequacy of salaried as against private
providers, but rather on the inadequate resourcing and running of the indigent
defence system as a whole in many states, but where nevertheless the salaried
defender is likely to produce the best service on o¬er™ (p. 7).
An evaluation of the Scottish Public Defender System (PDSO) found that the
quality of the PDSO™s advocacy was similar to that of private practice though
there were di¬erences in the ways they processed cases. PDSO cases were some-
what more likely to end with a conviction (88 per cent compared with 83 per
cent of private practice clients). The di¬erence appeared to be a tendency on the
part of the PDSO clients to plead guilty earlier, whereas if the case was dragged
out there was a possibility the prosecution would drop the case. Client satisfac-
tion with salaried defenders was lower than that of private practice clients.
PDSO clients were also less likely to say they would use the o¬ce again.267
For an independent evaluation of the English PDS pilot see L. Bridges, E. Cape,
P. Fenn, A. Mitchell, R. Moorhead and A. Sherr, Evaluation of the Public Defender
Service in England and Wales (2007, www.legalservices.gov.uk/criminal/pds/
evaluation.asp “ Related Documents). This report showed that the PDS model
could provide services of the same quality as private practice but at a higher price,
largely due to the requirement that they compete on a ˜level playing ¬eld™ “ the
costs of the service being spread amongst small numbers of clients. Whether the
PDS concept has any future in the context of Lord Carter™s market-based reform
project for criminal legal aid (see pp. 620“22 below) is uncertain.


Law centres
Most legal aid expenditure has always been for services provided by lawyers in
private practice (known in the US as ˜judicare™). A minuscule proportion of the
resources disposed of by the Legal Aid Board went to law centres “ salaried
lawyers, mainly in poverty areas, who are not in private practice. The ¬rst law
centre was set up in 1970.268 Since then some ¬fty or so have been established.
Their funding came variously from ordinary legal aid, grants from local

266
For a useful short summary of the pros and cons see N. Rose, ˜Defending the Cause™, Law
Society™s Gazette, 11 November 2004, pp. 20“2.
267
C. Tata et al, ˜Does Mode of Delivery Make a Di¬erence to Criminal Case Outcomes and
Clients™ Satisfaction? The Public Defence Solicitor Experiment™, Criminal Law Review, 2004,
pp.120“35.
268
For the history see M. Zander, Legal Services for the Community, 1978, Ch. 2.
615 The legal aid system


authorities, from foundations and charities and in a few cases direct grants
from the Legal Aid Board. The LSC took over these grants, but by 2003 it had
decided that it would only support law centres through contracts like other
providers. In 2005 just over half (55 per cent) of the funding of law centres
came from the LSC. Payments made by the LSC to law centres, which were just
over £5 million in 2000“1, rose to nearly £11 million in 2005“6.269
In 2006 the LSC announced that it would not be continuing the annual grant to
the Law Centres Federation, the law centres™ central organising body (www.law-
centres.org.uk). The grant of £165,000 supported the directorate and policy work
as well as administration and running costs. Happily the threat was subsequently
withdrawn “ though future long-term funding from the LSC was to be reviewed.270
Also, as already noted, in 2006 the LSC announced its plan (p. 598 above) to
establish ˜Community Legal Advice Centres (CLACS) and Networks (CLANS)
that provide access to a service which ranges from basic advice to legal repre-
sentation in the full range of social welfare problems as well as children and
family legal problems™.271 They sounded remarkably like law centres. One won-
dered why the LSC did not merely announce that it had decided to build on and
develop the existing exemplars. (Leicester and Gateshead, the ¬rst two areas
with invitations to tender for CLACS, both had existing law centres.)


Legal aid for tribunals?
With a few exceptions tribunals have been outside the legal aid scheme. (The
exceptions currently are the Employment Appeal Tribunal, the Mental
Health Review Tribunal, the Immigration Adjudicators, the Immigration
Appeals Tribunal, the Protection of Children Act Tribunal, the Proscribed
Organisations Appeal Tribunal and certain proceedings before the Special and
General Commissioners of Income Tax.)
Not that legal representation in tribunals is regarded as irrelevant. It is widely
recognisedthatlegalrepresentationdoesmakeadi¬erenceintribunalcasesasmuch
as in court cases. The explanation simply has always been insu¬ciency of funds.


The not-for-profit sector in legal services
There is state funding, mainly from other sources, for advice given by non-
lawyer agencies (known as ˜the advice sector™ or the ˜not-for-pro¬t sector™). By
far the biggest are Citizens™ Advice Bureaux. The annual report for 2005“6
stated that there were 475 bureaux regularly o¬ering advice at some 3,400
outlets. Most were Citizens™ Advice Bureaux but they included prisons, courts,
schools and colleges, libraries and shopping centres. Some 2.75 million people
had used the service during the year. Some 5.25 million new problems had been

269
Information provided to the writer by the LSC, 10 October 2006.
270 271
See Independent Lawyer, April 2006, pp. 6, 22 and 26. LSC, 50 Focus, p. 4.
616 Costs and the funding of legal proceedings


handled. Many have a legal component. The advice given by bureaux is free
of charge and non-means tested. The advisers are some 20,000 trained lay
volunteers plus some full-time sta¬. The budget was £103 million. The funding
for local bureaux comes mainly from local authorities and the Legal Services
Commission. The central organisation, the National Association of Citizens™
Advice Bureaux, is mainly funded by a grant from the Department of Trade
and Industry. The service provided now includes an online advice service “
www.adviceguide.org.uk. For the annual report see www.nacab.org.uk.


The declining proportion of the population eligible for civil legal aid
The proportion of the population eligible for legal aid depends on the rela-
tionship between the means test and the resources of the members of the
population.
In 1991, a Government consultation paper Eligibility for Civil Legal Aid com-
mented critically on the view that a particular proportion of the population
˜should™ be eligible for legal aid. This view, it said, presupposed that the distri-
bution and level of means in the population remained constant relative to the
cost of litigation. Also it did not relate means to costs.
The ¬gures showed a decline in eligibility “ whether one looked at propor-
tion of households (from 77 per cent eligible in 1979 to 61 per cent in 1990) or
population (from 74 per cent eligible in 1979 to 66 per cent in 1990).272
At the end of the 1980s it was thought that around half of the population were
eligible for legal aid.273
A report by the LSC™s Legal Services Research Centre found that in 2001“2 28
per cent of what were called ˜bene¬t units™274 were fully eligible for Legal Repre-
sentation and another 18.5 per cent were eligible for Legal Representation on a
contribution basis.275


Why has the cost of criminal legal aid risen so much?
A study for the LSC published in 2005 considered the causes of rising expendi-
ture on criminal legal aid well above increases in in¬‚ation and general levels of
public spending.276

272
Table 3, p. 85.
273
See C. Glasser, Law Society™s Gazette, 9 March 1988, p. 11; 20 April 1988, p. 11; 5 April 1989,
p. 9; and M. Murphy, Legal Action, October 1989, p. 7.
274
˜Bene¬t unit™ refers to a single adult or couple living as married and any dependent children.
Bene¬t unit is a standard Government term.
275
L. Buck and G. Stark, Means Assessment: Options for Change (Legal Services Research Centre,
Research Paper No. 8, February 2001) p. 9 “ accessible at www.lsrc.org.uk/publications.htm.
See also the same authors, ˜Simplicity versus Fairness in Means Testing: The Case of Civil
Legal Aid™, 24(4)Fiscal Studies, 2003, pp. 427“49.
276
E. Cape and R. Moorhead, Demand Induced Supply? Identifying Cost Drivers in Criminal
Defence Work, July 2005 “ accessible at www.lsrc.org.uk/publications.htm.
617 The legal aid system


The largest increases occurred in Crown Court cases due to substantial
increases in volume of work and in the average cost per case. The second most
signi¬cant element of increasing cost was police station work. One reason was
higher volume of work “ more people arrested, more held in custody and more
asking for a solicitor. The rise in the average cost per case appeared to re¬‚ect
concentration on more serious cases and outcomes that were more detrimental
to suspects (more cautions, charges and remands in custody) and more inves-
tigation techniques (DNA and drug testing).
Magistrates™ court costs were the most stable part of the criminal defence
budget but there had been a substantial increase in volume of work at the turn
of the new century. The abolition of the means test was not the only reason.
There had been an increase (of some 150,000) in the numbers charged.
Increases in the likelihood of receiving a prison sentence and procedural inno-
vations (such as plea before venue) made more grants of legal aid legitimate.
The most important conclusion of the study was that the level of increase “ the
cause of constant adverse comment by politicians and the media “ was due to a
signi¬cant extent to decisions beyond the remit and the direct in¬‚uence of either
the LSC or lawyers. The report criticised the Government for only rarely taking
the legal aid expenditure implications of policy into account. A stark example was
the abolition of the means test implemented by the Access to Justice Act 1999. In
2004, when proposing re-introduction of the means test, the DCA said that it was
likely that between 75,000 and 150,000 grants of representation orders ˜arose as a
result of the abolition of the means test™.277 Yet the only reference to the possible
¬nancial implications made in the White Paper that preceded the 1999 Act had
been that the cost of collecting contributions was not much less than the total of
contributions collected. The Home O¬ce 2001 White Paper Criminal Justice: The
Way Ahead promised the biggest injection of new resources for the criminal
justice system in twenty years to pay, inter alia, for 9,000 more police, 700 new
CPS sta¬ and an extra 2,600 prison places. There was no sign that the impact on
criminal legal aid had been considered. The Home O¬ce™s ˜Narrowing the Justice
Gap™ project launched in 2002 re¬‚ected the manifesto commitment ˜to bring
100,000 more crimes to justice™, but the framework document made no reference
to the legal aid expenditure consequences of the new targets.278
Cape and Moorhead said there were two principal implications:

277
DCA consultation paper, Criminal Defence Service Bill, 2004, Cm. 6194, para. 75.
278
Other examples given in the report were the White Paper Justice for All, July 2002, Cm. 5563
which promised a signi¬cant increase in police numbers and police powers; the Government™s
strategic plan for criminal justice Cutting Crime, Delivering Justice, July 2004, Cm. 6288
promising 150,000 more o¬ences brought to justice and an improvement in police detection
rates from 19 per cent to at least 25 per cent; and the Home O¬ce consultation paper Policing:
Modernising Police Powers to Meeting Community Needs, August 2004 proposing major
increased police powers. In each case there was no sign that the legal aid implications had
even been considered, let alone costed. By contrast the White Paper Safety and Justice, 2003,
Cm. 5847 on domestic violence did try to cost the likely increase in legal aid expenditure
implicit in its recommendations.
618 Costs and the funding of legal proceedings


1. Existing management of supply by way of ¬xed fees and in the future, com-
petitive tendering, has no mechanism for understanding and re¬‚ecting upward
pressures on the amount of work which needs to be done for clients.
2. The setting of a capped civil legal aid budget alongside an uncapped crim-
inal budget is problematic where the total of the two budgets is de facto capped.
There are strong arguments for separating the two budgets and for ensuring that
mechanisms for predicting and managing the criminal budget take proper
account of criminal justice reform.279
They ¬nished their report:
It is easy to understand the desire of Government to reform criminal justice policy,
without properly funding the defence side of the equation. Supplier-induced
demand provides a convenient political justi¬cation for so doing, but our analy-
sis shows that the system itself creates signi¬cant demand: it has increased the
number and seriousness of cases being processed through the police stations and
the courts and it has probably increased the volume of work that needs to be done
on those cases. At the moment those demands are being met out of the civil legal
aid fund, reductions in pro¬tability for private practitioners or, perhaps most
worryingly, reductions in the quality of service being provided to defendants.280
Clearly in¬‚uenced by the report, in September 2005 the DCA announced
that Government departments had to take account of the implications for
the legal aid budget when putting forward proposals for reform.281 Civil servants
were required ¬rst to contact the DCA™s legal aid strategy team to determine
whether legal aid was in issue. If so, the second stage required actual costing.
Whilst welcoming this announcement, Cape and Moorhead said it was not
enough. It was limited to proposals for new criminal sanctions or civil penalties,
which was far too narrow. (For instance it would not apply to the proposal that
an extra 150,000 o¬enders should be brought to justice.) Also, there was no indi-
cation that the Government department in question might be required to recon-
sider its proposals nor that it could be made to contribute to the legal aid cost.
They also challenged the statement in the DCA document that preparing a legal
aid impact statement was ˜not a di¬cult process™. If that was so, they observed,
˜why have decades gone by with no adequate legal aid costing being conducted?™282


Where now with the funding of legal aid?
The most serious problem of legal aid is that there is not enough money to fund
it “ even though the level of expenditure per head of the population is the highest

279 280 281
At p. 70. Ibid. See www.dca.gov.uk/laid/impact-test.htm.
282
E. Cape and R. Moorhead, ˜Legal aid impact tests: good start but not enough™, 155
New Law Journal, 23 September 2005, p. 1373. The new approach got o¬ to ˜a shaky
start™ when, launching the pilot for allowing victims™ families in murder and
manslaughter cases to address the court, the minister, Harriet Harman, admitted that the
Government had no idea what it might cost. (18 Independent Lawyer, October/November
2005, p. 5.)
619 The legal aid system


in the world. The cost rose so much that retrenchment became politically
inevitable. Since the mid-1990s the system has been in crisis and there has been
a bewildering series of proposals and initiatives to try to deal with the issue.

Competitive tendering283
In January 2005 the LSC published a consultation paper proposing a new
system of competitive tendering in London (Improving Value for Money for
Publicly Funded Criminal Defence Services in London). London was chosen
for the pilot because of oversupply of ¬rms doing the work. Initially the ten-
dering would be for police station and magistrates™ court work (worth some
£110 million). London would be divided into ten to ¬fteen ˜bid zones™. The
LSC hoped to make savings not only through ¬xed prices but on travel and
waiting time which would be part of the bid price rather than being charged
separately. It would save also from abolition of its hated cost compliance
audits.
The legal profession was mainly strongly opposed to the proposals. Even
those who were reconciled to the idea of price-competitive tendering (PCT)
criticised the LSC™s paper. The LSC claimed that PCT would improve quality
as well as saving money but critics argued that there was nothing that would
improve standards. The LSC said that all but around 5 per cent of existing sup-
pliers would go straight on to the bid panel at which point the only criterion
would be price.284 (˜Bids will be assessed and contracts awarded on the basis of
price. No other factors will be considered at this stage as all suppliers will have
passed the quality threshold™.) Fisher Meredith was peer reviewed and placed
among the top three ¬rms in the country. Its managing partner, Stephen
Hewitt, said this would count for nothing in the bid round where the ¬rm
might be undercut ˜by a bloke with a mobile phone working out of the front
room™.285
Far from raising standards, there would be a levelling down. Bidding should
be on the ˜best value™ basis widely used by public sector bodies286 that took into
account a variety of factors “ IT, supervision, training, equal opportunities etc.
(The LSC had used a best value approach when awarding civil contracts in 2004
and agreed that it was ˜a tried and tested method™.)
The pilot was scheduled to begin in August 2005, but after the setting up
of Lord Carter™s Review (see below) it was postponed. His ¬rst report in
February 2006 made PCT part of his plan to be introduced over a three year
period.


283
For the economists™ assessment leading to the adoption by the LSC of the idea of price-
competitive tendering see 18 Independent Lawyer, March 2005, p. 15.
284
The 5 per cent not passported straight into the bid round would be subject to peer review to
see whether it should be permitted to join the bid round.
285
Independent Lawyer, March 2005, p. 12.
286
See Legal Aid Review, March 2005, pp. 8“9.
620 Costs and the funding of legal proceedings


The Carter Review
In July 2005 the Lord Chancellor published a forty-six page paper A Fairer Deal
for Legal Aid.287 At the same time he announced that he had appointed Lord
Carter of Coles to undertake a wide-ranging review of the funding of legal aid
with special reference to criminal legal aid.288 Lord Carter™s report came in two
parts “ the ¬rst on 9 February 2006289 and the second on 13 July 2006.290
On the same day as his ¬nal report the DCA and the LSC published a ninety-
six page joint consultation paper Legal Aid: A Sustainable Future setting out pro-
posals for the implementation of the Carter reforms and a raft of proposals
concerning Civil, Family and Immigration legal aid.
Carter™s proposals amount to a fundamental restructuring of legal aid pro-
curement using a market-based approach. The stated aims are to ensure sustain-
able, high quality legal aid services at an a¬ordable cost using ¬xed prices, block
contracts, consolidation of suppliers and eventually price-competitive tendering.
Carter™s sixty-two proposals included:
• The concentration of criminal legal aid work in fewer and larger ¬rms.
• Competitive tendering for legal aid contracts based on best value measured
by price, quality and capacity.
• The LSC to continue to set the quality standards but the actual vetting of stan-
dards of barristers and solicitors™ ¬rms to be taken over by the Bar Council
and the Law Society using peer review.
• Revised graduated fees for Crown Court advocates and a new graduated fee
scheme for solicitors in the Crown Court and in the magistrates™ courts to
reward earlier preparation and resolution of cases.
• The whole fee to be paid to the ¬rst barrister instructed on a case regardless
of whether he ends up doing the trial. That barrister would be responsible for
the payments to any substitute advocate.291
• Working practices of barristers™ clerks and chambers to be revised to make it
possible to identify the trial advocate at an early stage.
287
Cm. 6591.
288
For the terms of reference and other information about the Review including its publications
see www.legalaidprocurementreview.gov.uk.
289
Procurement of Criminal Defence Services: Market Based Reform. For comment and discussion
in the legal journals see Law Society™s Gazette, 16 February 2006, pp. 1, 8 and 15; 23 February
2006, p. 5; 21 April 2006, p. 1; 4 May 2006, p. 1; Counsel, March 2006, pp. 4 and 6; May 2006,
p. 15; Independent Lawyer, March 2006, pp. 12“15; Legal Action, March 2006, p. 3; Legal Aid
Review, April 2006, pp. 4“7.
290
Legal Aid “ A market based approach to reform. For comment and discussion in the legal
journals see Law Society™s Gazette, 20 July 2006, pp. 1 and 15; Counsel, August 2006, pp. 5 and
8“9; Legal Action, August 2006, pp. 3 and 6“7; Legal Aid Review, July 2006, pp. 2 and 10“11;
LSC, 51 Focus, August 2006, pp. 2“5; Law Society™s Gazette, 26 October 2006, p. 3; Legal
Action, November 2006, pp. 6“9; Law Society™s Gazette, 26 October 2006, p. 3; Legal Action,
November 2006, pp. 6“9.
291
As to how this would work see J. Chase, ˜Composite Fees™, Counsel, November 2006, pp. 23“4.
See also the Bar Council™s Response to the Joint DCA/LSC Consultation Paper, Legal Aid: A
Sustainable Future, October 2006, paras. 68“70.
621 The legal aid system


• Fixed fees (to include travel and waiting time)292 for work carried out in police
stations.293
• Fees should be the same for duty and own client work and for work done in
and out of o¬ce hours.
• All police station clients should have to be routed through a call centre even
if they wished to have a particular solicitor.
• Solicitors should be restricted with regard to cases they could take from
outside their own area to something like 20 per cent of their cases.
• The ¬rm that began the work on a case should be expected to carry the case
through to its conclusion.
• Tighter control of very high cost cases (VHCC).
• Standard fees for civil and family Legal Help and new graduated fees for solic-
itors in private Family and Child Care proceedings.
• A single contract for criminal and civil work and for solicitors™ ¬rms and not-
for-pro¬t agencies (NFPs).294
• The Government should set aside £4 million to help ¬rms prepare for the new
regime and £6 million for IT modernisation.
Implementation should be phased over the three years 2007“10. The resulting
savings could be of the order of £100 million against the 2005“6 spend. This
would allow a signi¬cant redistribution of moneys from criminal to civil legal
aid. Fees paid to barristers in VHCC cases would reduce. Junior barristers would
get a 16 per cent increase to make up for ten years of stagnation of fees.
On the day of publication the Lord Chancellor, Lord Falconer, said: ˜Because
of the inclusive way Lord Carter has carried out his review . . . we can move
quickly towards implementing it. That™s why I™m starting immediately a full
consultation on what he is proposing. The Carter Review provides the blue-
print. Now we have to get on with the job™.295
In his ¬rst immediate reaction, the Chairman of the Bar, Stephen Hockman
QC, said: ˜This is as good an outcome as is available, and the proposals
are worthy of very serious consideration™. The President of the Law Society,

292
Commenting, the Legal Aid Practitioner™s Group said this would penalise ¬rms for the
ine¬ciency of the courts, prosecutors, police and others who caused the delay (13 Legal Aid
Review, July 2006, pp. 11“12). Around a quarter of all attendance at police station costs are
attributable to travel (20 per cent) and waiting time (6 per cent) “ Carter Review, p. 24,
para. 14.

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