I am pleased to publish a protocol for solicitors advising suspects at police stations during the COVID-19 crisis. It has been drafted by Keir Monteith QC, Lucie Wibberley, Patrick Roche and Vicky Meads.
The starting point is no one should put themselves at risk…. the opening paragraph states:
We need to act now to protect the lives of solicitors who are called to a police station and the lives of suspects who require representation. In short, solicitors should not be required to attend police stations and suspects should only be detained and interviewed in the most serious of cases.
Thereafter the protocol provides advice and assistance on the difficult decisions that are now having to be made including: whether to attend the police station, should there be an interview; if so should a prepared statement be served immediately or post event. Where possible, the authors have made reference to helpful codes of practice, a Home Officer Circular and case law.
The bigger picture is that there needs to be a joined up Government approach that provides consistency from arrest to final disposal – a proper triaging of cases.
Comments and observations are encouraged.
The protocol can be found by clicking on the link here.
In the coming months, the tabloid “fat cat legal aid lawyer” staples are likely to re-emerge and recur with a vengeance, following the Ministry of Justice’s plans to slash legal aid fees paid to criminal law solicitors. In the din of misinformation that will be honked out by the MoJ to distract from the legal profession’s concerns, the truth may become estranged. This could have devastating consequences. If you are wrongly accused of a crime, your guiding light will most likely be a legal aid solicitor. Their importance to the functioning of our justice system is shamefully overlooked and underreported.
The Secret Barrister is delighted to publish this exclusive guest post by barrister, former duty solicitor and fellow anonymous legal commentator, CrimeGirl, who explains the reality of life for solicitors on legal aid.
One of the basic tenets of the Criminal Justice System in England and Wales is that every person being interviewed under caution by the police, no matter how rich or poor, is entitled to free and impartial legal advice. As I used to tell my clients, even Richard Branson is entitled to free representation in the police station.
For each case the Legal Aid Agency pays the lawyer a fixed fee. Those fees vary for some nonsensical reason depending on the location of the police station (or nearest police station). When cases are not prosecuted, the case ends there, with that fixed fee. On average it is circa £170. That is all the firm receives for the totality of the work they put in. For every police station lawyer working today, there will be numerous cases every week that are resolved by way of an ‘out of Court disposal’ such as a caution, or are dropped altogether. Preventing charge in an appropriate way is an extremely positive result for the client and something that I took great delight in achieving.
Year on year, the number of arrests has dropped. You will see this spun in the news as “crime falling”. Be assured that crime is certainly not falling. The number of individual criminal acts is not accurately reflected by the way those acts are recorded. Custody stations across the country have seen greater than 30% reductions in footfall following a concerted effort by forces to achieve fixed targets. The knock-on effect of this alone has been devastating for Solicitors and Barristers alike.
On top of that, a sizeable chunk of cases end at the police station. Each case that resolves without charge culminates after its own hefty workload. Children falsely accused of serious offences, removed from school, where Solicitors have intervened with the investigation on numerous occasions. Countless vulnerable adults arrested for offences never capable of being made out on the available evidence, necessitating solicitors to attend the police station on multiple occasions, and who call their solicitors no less than thirty times over the months their cases go on. Lengthy letters to custody sergeants and inspectors protesting length of bail and onerous bail conditions, threatening more formal legal action if they are not amended or relaxed.
Some of those files will comprise detailed reviews of statute and Court of Appeal or Supreme Court cases, lengthy letters to senior officers raising complaints, representations on points of law, or letters to other Solicitors requesting assistance in ancillary legal challenges. Others will contain identity procedure attendance notes, multiple pages of written disclosure, defence witness statements and documents provided by the client to assist in preparing their defence. They will include correspondence from employers, divorce paperwork and screenshots or emails from former partners, all of which need to be considered in detail so that the client can be advised whether or not the contents needed to be disclosed to the police in order to bring about a faster resolution to the investigation.
How much are Solicitors paid for all of this work?
Having worked for or on behalf of many differently sized firms with legal aid contracts, I can confidently say that all clients are defended robustly with a view to fending off a potential prosecution. Every file attracts that paltry £170 I referred to above. That £170* covers at best two hours of work, three letters and four or five phone calls. It is the norm however for it to become a huge financial hole, representing a considerable overall loss in terms of spent fee earner’s working hours, calls and correspondence.
It bears repeating. Every police station attendance is now considered a ‘loss leader’. It is hoped that remuneration may occur in the future, either the client will be charged or if the best possible result happens and charge is avoided, one hopes, a word of mouth recommendation through excellent client care will materialise.
How can criminal defence solicitors survive in these circumstances?
The only way that firms or criminal departments have stayed solvent without taking on privately paid work is due to larger Crown Court litigator fees. Each case that results in charge attracts funding under a representation order payable on a fixed fee basis, and when those cases are larger and more complex, (such as cases with lots of defendants at the Crown Court) that fixed fee rises. When there is a huge amount of evidence for lawyers to read (more than 10,000 pages) the fee rises significantly. That does not mean that those cases are ‘well paid’. Let us not become distracted by the fallacy that any publicly funded criminal work is properly remunerated. It is not an argument that is worth repeating here. Larger litigator fee cases come closer to properly remunerating those who conduct them, than the smaller cases do, while remaining in stark and depressing contrast to remuneration available in any other area of law involving the same volume of work.
Those large cases are rare. They come around infrequently and when they do arrive, Crown Court Judges have become accustomed to splitting large groups of defendants into smaller cases and putting pressure on defendants to plead guilty early, before evidence is served, with promises of sentence discounts. That cutting, pressure and re-organising reduces the financial value of the cases significantly.
The government is now proposing to reduce the amount of money it is willing to pay Solicitors and Barristers for those higher page count, more complicated cases. No proper justification has been offered for doing this. Lawyers still need to read every page of evidence in every case. Failing to do so is negligent. Relying on automatic computer processes to read evidence ignores the fact that documents are frequently hand-written and scanned, and omits the chance for human error in typing the evidence prior to service. I say it again, failing to read every page is negligent.
The losses sustained by Solicitors at the police station and in the Magistrates’ Courts, and by Barristers who fall into a loss by properly preparing poorly paid Crown Court cases are not properly balanced by the larger cases. All cases should be remunerated fairly. However, those larger cases go a way towards keeping firms and Barristers afloat financially. The criminal justice system has already been slashed to the bone. Police station fees have been reduced. Magistrates’ Court fees have been cut. Crown Court fees have been lowered. Less people are being arrested. All this after no rise in almost two decades, despite vastly increased living and business costs. So many individual cases are routinely being driven into losses that criminal lawyers’ (particularly at the more junior end) are now very poorly remunerated.
Trainee Solicitors in crime can expect to earn between minimum wage and £18,000 a year. When they qualify they can expect little over £24,000 nationwide. Solicitors with up to seven years post qualification experience can expect to earn up to £32,000 a year, and all this comes bearing huge student debt and bank loans to fund their qualifications. Paralegals are routinely paid between £13,000 and £20,000. Even the most passionate believers in justice are deterred.
Great people are leaving the profession and almost no one is choosing to join it, which is a problem for the future. It is our children and the most vulnerable people in our communities who will suffer. With any further cuts whatsoever, we can be satisfied that the criminal justice system will collapse entirely.
As a law abiding tax payer you might think legal aid is an unnecessary expenditure, you never know when you might need it. No one plans to be falsely accused of a crime – just as no one plans to be a victim.
*Save for those that attract the “escape fee”. Escape fees require many hours of attendance at the police station by the Solicitor in interview and equate to circa 4 x the standard fee. These are rare, occurring only in complex and serious indictable only offences and almost always result in a positive charging decision. (I think it requires more than twelve hours and remember that you still aren’t remunerated for every hour you spend there).
You can (and should) follow CrimeGirl on Twitter at @CrimeGirl.