Tuesday, July 28, 2009

Money, again.

It appears, reading back over the last few posts, that I've become a little side-tracked by money, and for that I apologise. I certainly wouldn't want anyone to get the idea that lawyers are fixated by the subject. But, I beg your indulgence once more, before I get on my high horse, and move on to advocacy within the CPS.

Best-value tendering. Three words (despite the best efforts of that wretched hyphen) to strike fear into the heart of any lawyer. They should also scare any member of the public concerned about being arrested for some spurious reason, i.e., all of us.

The concept, for those lucky enough to remain outwith the clutches of the criminal justice system, is this: firms will bid in an auction for the right to conduct defence work for people who can't afford a lawyer, and that work will then be dished out in parcels.

Firstly, the idea that the state will pay highly trained lawyers to try to put people in jail, and then pay highly trained lawyers to try to keep those same people out of jail, is a brilliant one. It is a ringing endorsement of democracy, and the continually operating proof that the state is not tyrannical, that justice is not arbitrary, and that justice is for all, regardless of financial means.

It sums up the very British emphasis that our legal system places upon fair play. We even have a legal principle called "equality of arms", which is the legal equivalent of divvying up ammunition before going over the top.

Alas and alack, someone somewhere noticed that we spend rather a lot per capita on legal aid in comparison with our neighbours -- almost £30 per person per annum, compared to about £4 in France. As legal insurance goes, it's pretty good.

What's this auction about then? Why do lawyers need help driving up prices? Shurely shome mishtake? Well, some clever little civil servant has had a brainwave. Dutch auction. Reverse auction. Firm A has a look at its payroll and books, and says "we can handle 100 cases a year for £25,000".

That's a made-up number, by the way, and I apologise to those among you who have recently redecorated their monitors in a shade of Tetley.

Anyway, Firm B then has to say "Well, we'll do 200 cases for £25,000". Or, "We'll do 100 cases for £12,500".

The result is a race to the bottom, in terms of quality and service. So guess who suffers? You. The poor sod who's been arrested and needs some decent advice. This reverse auction was tried with home care for the elderly, and the results were shocking and immediate, with one firm losing its licence to provide home care shortly after winning a contract, so poor was the "care" provided. The winning rate was about £7 an hour. Cooked home meals became sandwiches and crisps bought on the way over to Doris from Gladys, simply because staff were so stretched.

A joint response from the Criminal Bar Association and the General Council of the Bar pointed out that this system is actually "price-competitive tendering", and isn't used anywhere else in the world in relation to legal services, except in the USA. Even the Yanks realised that if the system preserves the quality of representation, it didn't produce the savings sought (Chapter IV of the Department of Justice Special Report, cited in the above link).

What a surprise.


  1. I agree it might be a worrying trend within the CPS that access to the Criminal Justice System might be deemed a lowering of standards because of a Dutch auction process. Regrettably, there have always been concerns with the Criminal Justice System where public money is concerned.

    A recent news report in the Liverpool Echo is an excellent example of how public funds are gratuitously spent. The defendant thought it was important enough to have a QC representing them as they could easily afford the high legal costs to ensure their best chance of acquittal. The CPS has the luxury to appoint in equity a QC from public funds for the prosecution of a relatively simple charge of affray, so now there are high legal costs on both sides. The defendant was acquitted, so could this now lead to a claim for the defence costs also to be paid out of taxpayer's money as well. The prosecution of crime as shown in the example cited is already a high expense for the taxpayer regardless of whether the Crown or the defence wins the case.

    Making a case against Best-value tendering needs to be considered with all the other financial demands placed upon the taxpayer. What is the more likely and important issue for the taxpayer? Think about the options. You are given some decent advice in terms of quality and service if you are unfortunate to be involved within the CJS; or, in the event of an injury or illness, whether or not you will get emergency treatment in hospital. For the average taxpayer, a choice for the allocation of their tax money would be based on the public service they are most likely to need in the future.

  2. I am left to wonder why, if this is such a marvellous idea for publicly funded defence, it is the exact opposite of what is being done for publicly-funded prosecution?

  3. With respect to legal aid, can you provide any comment on whether it is being evenly spread around the population, or whether it is being consumed by a small number of repeat customers.

  4. Juror, yes Mr Gerrard will be able to claim back his expenses. However, the court may well wonder whether it was necessary to over instruct by employing a QC and could in theory reduce his costs on taxation... whether they will or not is another matter.

    Boy on a bike, legal aid is a funny thing - the majority goes on crime (although that is partly because you cannot get legal aid for many civil matters and because civil legal aid rates are so low that many firms refuse to do work at those rates and require clients to pay privately or take insurance etc). Of the money spent on crime, about 49% is spent on 1% of the biggest cases - these are things that high street defence lawyers like me rarely see. The remaining 51% is spent on everyone else. I expect that a large chunk of it goes on repeat offenders. That would certainly correspond with my experience. However, there are a lot of people with no previous experience of the CJS who receive legal aid.

    Anonymous, are you sure you are a real prosecutor?? You seem far more neutral, considered and reasonable than many prosecutors I deal with!?!?!

  5. Juror -- Stevie Gerrard will in all likelihood be getting his costs, despite his fabulous wealth -- and no man should ever be required to pay to prove his innocence. If we are to have fair trials, and ensure that rich defendants don't simply buy their way out of trouble, the state may occasionally be landed with big bills for the best lawyers. That said, means-testing in the Crown Court may be coming soon, watch this space for a post about that.

    Boy on a bike -- "repeat customers" I imagine you understand to mean drug-riddled shoplifters with myriad previous convictions. They certainly take up a fair share of the money, but as phatboy has pointed out, about half the legal aid budget goes on the very top few cases, i.e. the biggest, longest, most complex trials. The Very High Cost Case (VHCC) scheme was introduced to attempt to redress this balance, but it seems it hasn't worked as hoped.

    Phatboy -- I am indeed a real prosecutor. There are a number of us who pride ourselves on being even-handed, level-headed and sensible. As for locating and identifying us, well, good luck!

  6. It all seems slightly wrong to me. I envisage -without any real idea of how to bring it about- a system where both prosecution and defence are selected from the same pool of qualified people on a case by case basis and at random.

    Sure if someone want to pay for extra advice then we'd have no real way of stopping it but that extra shouldn't be allowed in court.