The majority of solicitors in England and Wales are refusing to carry out criminal legal aid work following a cut in fess which came into force on July 1, 2015. The arguments of both parties are meaningless unless you know what the government proposes to pay those solicitors for the work they do and what it costs them to undertake that work, so lets shed some light on how and how much legal aid lawyers are paid.
There are essentially three main areas of work solicitors who practice in criminal legal aid undertake. The first is to attend on those who have been arrested by the police as a suspect and to them with advice and assistance whilst they are in a police station.
Secondly if a person is charged and the case against them is not serious enough to be sent to the Crown Court the solicitor will represent that person in the magistrates’ court to trial if necessary.
Thirdly, if the case is sent to the Crown Court the solicitor will represent the defendant at the first hearing in the magistrates’ court, prepare the case for the Crown Court, often including attending any bail hearings and will usually instruct a barrister or a solicitor with higher court rights (often called an HCA) to undertake the trial advocacy.
A series of fixed fees is offered for that work which apply irrespective of the time spent doing the necessary work.
Police Station Work
The fees paid for attending a police current vary according to where the police station is based, for example in Merseyside the fixed fee varies from £122.88 to £162.20 for the entire case no matter how often the solicitor has to return to the station. The same fee applies no matter how serious the offence or how long the solicitor spends dealing with it. The fee does not vary even if the solicitor is attending at the police station in the middle of the night or over a weekend or a bank holiday.
The first a solicitor will usually know about a police station case is when they receive a call from the Duty Solicitor Centre (DSCC) which was established at great expense to prevent the police calling solicitors direct, something the police used to do without difficulty. Getting the details out of the DSCC will usually take no more than three minutes, as they only receive the most basic information from the police, although if the solicitor has to call them back a great deal of time can be wasted waiting in a telephonic queue.
The next stage in the process is to call the police to establish what the suspect has been arrested for, what has happened in the police station so far and what the police intend to do next. Solicitors are also required under the terms of their contract with the government and as a matter of good practice to speak to their client on the telephone to check their client understands what is going on and do not have any complaints of mistreatment. Those two calls are likely to take about 12 minutes, provided the custody office telephone is not engaged and the custody officer is available when the solicitor calls.
Usually the police will want to interview their suspect. The solicitor is required to attend that interview and will therefore have to travel to the police station. Increasingly police custody centres are being centralised so rather than popping down to their local police station solicitors find themselves travelling across their region. Lets assume for the sake of example that it takes the solicitor 30 minutes to drive to the police station, so a round trip of an hour.
Once at the police station the solicitor will be shown the suspects custody record which sets out what has happened to the suspect whilst he has been in police custody and will be given an opportunity to discover from the investigating officers what they want to question the suspect about and the evidence that they propose to rely on. The length of time to complete that process will depend on how serious the allegation is and what evidence the officer has. Even in a relatively simple matter such as shoplifting the time taken to review the evidence with the officer may be extended if there is CCTV to be watched. Providing an average time for that process is pretty nearly impossible so here are two actual examples from our files: first an alleged assault by a male on his female partner with CCTV lasted 30 minutes; second an allegation of conspiring to supply class A drugs where there were three separate sets of disclosure last a total of two hours 12 minutes including reviewing CCTV images.
The next stage is the interview its self. These can vary in length enormously depending on the complexity of the offence alleged and the number of questions the police choose to put. In many cases, such as the drugs case we are using as an example, the police will seek to introduce previously undisclosed evidence, which requires the interview to be stopped, further disclosure given and instructions being taken before the process can start again. Using our two examples the time spent in interview for the assault matter was 48 minutes and in the drugs case 4 hours 18 minutes.
In addition to the time spent doing the work at the police station there is usually time spent waiting, often because although an agreed start time was fixed the officers in the case have been delayed travelling to the central custody unit or there are problems with interview room availability or quite simply the suspect needs a break. Once the case in the police station has ended there are notes to be written up, a file to be opened so that all the information the Legal Aid Agency requires the solicitor to keep can be recorded. At least 30 minutes should be set aside for waiting and administration time.
In many cases the police cannot conclude their investigation at a first interview, particularly where they have forensic or electronic evidence to gather from computers and mobile phones. In such cases they place the suspect on police bail so that that they can call them back for a further interview in due course. All that work and any future attendance at the station is included within the fixed fee.
So what is the hourly rate the solicitor receives for the two cases we have used as an example:
- The drugs case – the total time spent dealing with that matter was eight hours fifteen minutes which, depending on the fee payable gives an hourly rate of between £14.89 and £19.66.
- The assault case – the total time spent dealing with that matter was three hours and three minutes which, depending on the fee payable gives an hourly rate of between £40.29 and £53.18.
Those hourly rates are the gross amount paid to the solicitors firm out of which they must pay for the office they must have to do the work, the costs of everything needed to run that office, the car to drive to the police station and their staff to do the work. We will discuss how much it costs to run an office later.
Magistrates’ Court Work
There are three classes of offence that find there way into a magistrates’ court and as I shall refer to them later its important to explain what they are. “Summary only matters” are the group of least serious offences, like most driving matters, minor assaults and retail theft where the value is less than £200 which can only be dealt with in the magistrates court. “Either way matters” are middle ranking cases that can sometimes be dealt with by magistrates but may be so serious they should be sent to the Crown Court. Burglary, drug offences and more serious assaults fall in to this group. There is a third group of offences, such as robbery, rape and murder known as “indictable only” offences which must be sent to the Crown Court.
Everyone who is charged with a criminal offence is sent to the magistrates’ court. If the case is particularly serious the magistrates will send the case to the Crown Court to be dealt with. Where a defendant is under 18 he or she will be sent to the Youth Court save in exceptional circumstances. For the purposes of legal aid the youth court is treated as if it were a magistrates’ court and it usual for solicitors to do all the work in that court.
Fixed fees are paid in the magistrates’ court which depend on whether the case is resolved as a guilty plea or after a trial and how much work is done. If more than a set amount of work is done by reference to a notional hourly rate of £44.43 per hour a lower or higher fee is paid.
Those fees are, from July 1, 2015 to January 10, 2016:
- Guilty plea (summary only matter) – Lower fee £182.81 – Higher fee £393.86
- Guilty plea (either way matter) – Lower fee £224.86 – Higher fee £462.57
- Trial (any class) – Lower fee £312.23 – Higher fee £653.99
From January 11, 2016 the government intend to abandon the higher and lower standard fee system and will replace these with three fixed fees:
- Guilty plea (summary only matter) – £196.28
- Guilty plea (either way matter) – £235.56
- Trial (any class) – £449.45
No fee is payable under either scheme where the case is too serious to be tried in the magistrates’ court. The work done in those cases is paid under the Crown Court scheme.
What work has to be done in the magistrates’ court? Well that depends whether the case will be dealt with as a guilty plea or not.
If the defendant is produced to the court in custody there will be an initial hearing, sometimes on a Saturday or Bank Holiday, where the defendant will be asked his plea and a bail application may have to be made. The solicitor’s duties require him to obtain a case summary from the Crown Prosecutor, attempt to discover the prosecutor’s view as to the seriousness of the offence and whether it can be dealt with in the magistrates’ court or whether the case could be dealt with by a different charge in some cases and then to take his client’s instructions as to plea. The best outcome for the solicitor is that there is a guilty plea and the case is dealt with there and then. Setting aside an hour to obtain information and to take instructions a thirty minute hearing and travelling and waiting time of an hour produces an hourly rate of £78.51 or £94.22 on the post January 11 rates. That incentive is however particularly dangerous as it discourages proper advice where taking a case to trial may have costs implications for the solicitor.
Unfortunately many cases are not resolved so quickly. In some cases the prosecution are not ready or in others the magistrates decide they want a probation report. This either means increased waiting time at the first hearing or the case being adjourned. In either case the result is that hourly rates are frequently half that of what could be expected if the case could be resolved effectively the first time it is called.
If the case is to proceed to a trial the first hearing will become a case management hearing and will take about 30 minutes, longer if a bail application is required. If bail is refused a further application can be made to the magistrates court at a second hearing and to the Crown Court; a further two hearings included in the fixed fee. Additionally the solicitor must prepare the case for trial taking his instructions from his client, considering the prosecution evidence which frequently only becomes available after several calls to the Crown Prosecution Service to request it, viewing CCTV and so forth. The solicitor must also attend at the trial hearing.
Trial hearings are frequently ineffective, either because the prosecution witnesses do not attend (the trial will continue if the defendant does not appear), the Crown Prosecution Service are not ready or because the court has listed three of four trials in the hope that not all of them will go ahead and runs out of time. Where the case is adjourned the solicitor must absorb the costs of his attendance within the fixed fee.
The assault case we used as an example in the police station was just such a case. There was a case management hearing and two trial dates. The Crown Prosecution Service had to be chased for unused material, mobile phone footage that had been taken by one of the complainant’s associates that showed the entire incident. The tiall, when it eventually proceeded resulted in a finding that the defendant had no case to answer after a four hour hearing.
The time spent dealing with that matter was 30 minutes at the plea and case management hearing, together with 30 minutes waiting for the case to be called, two hours taking instructions and considering the case including CCTV, a further one hour 30 minutes at the adjourned trial hearing after spending an hour preparing for the trial that never was. A further hour preparing for the adjourned trial and four hours advocacy. Additionally there were three hours travel. A total of 12 hours, which after January 1, 2016 will generate an hourly rate of £37.42.
Crown Court Work
The work done in the magistrates’ court, which frequently involves a bail application is rolled up into the fixed fee that is paid to the solicitor for his work in the Crown Court.
There is a distinction between the solicitor’s role and the advocate’s role in the Crown Court which is partly based on the historical fact that it was, until comparatively recently, only barristers who could appear before the Crown Court. Advocates receive a separate fixed fee but depend on the solicitor to prepare the case.
The fixed fee that is paid in the Crown Court to the solicitor, depends on the type of case, there are 11 groups, and how the case is resolved, different fees being paid according to whether the defendant pleads guilty at the outset, whether the case is prepared for trial but the trial does not proceed (known as a “cracked trial”) or whether the matter goes to trial. The basic fee may also be increased depending on how many pages of evidence the Crown Prosecution Service choose to rely on.
By way of example we have set out some of the basic fees payable after July 1, 2015 below:
Class A – Homicide and other serious offences, including murder and manslaughter:
- Guilty Plea – £615.14
- Cracked Trial – £817.84
- Trial – £1,326.86
Class B – Offences involving serious violence and damage and serious drugs offence, including for example causing death by dangerous driving, endangering the safety of an aircraft and supplying class A drugs:
- Guilty Plea – £502.79
- Cracked Trial – £641.15
- Trial – £992.41
Class F – Offences of Dishonesty including most burglary, fraud and theft offences
- Guilty Plea – £177.04
- Cracked Trial – £202.72
- Trial – £323.31
All of these cases will involve at least one first hearing at the magistrate’s court at which a bail application will often be required. A further application may also need to be prepared in writing to the Crown Court and it is the solicitor that will normally need to attend at that hearing.
It is often the case that bail will be refused in serious cases, especially those involving murder and drugs that the defendant will be remanded in custody pending his trial. In such circumstances the time spent taking instructions will be greatly increased because of the need to travel to prisons and because of the need for multiple visits because of the way prison visits are allocated.
Additionally many cases involve considering the need for expert forensic evidence to challenge the prosecution case and where that has to be done it is the solicitor who must locate the expert, submit a claim for funding and draft instructions to that expert and then consider the report. Reports may also be required to explore any mental health issues that the defendant exhibits.
Defence witness statements must also be obtained by the solicitor, not the advocate and all the available evidence collated and prepared for use by the advocate. Additionally, if the defendant is to plead not guilty a defence statement, identifying the general grounds of the defence, which can be used against the defendant if he gives evidence must also be agreed.
If the defendant is to plead guilty statements of mitigation and character references may also be required.
The risk to the solicitor of taking on a serious case is also greatly increased. A person convicted of murder will receive a sentence of life imprisonment and in some cases will have to spend the rest of his life in prison. If he is not sentenced to a whole life term minimum periods of imprisonment of between 20 and 35 years are not uncommon. In such circumstances if the solicitor is suspected of not doing his job properly the time and expense taken dealing with that allegation will far exceed anything he will have earned from the case. Solicitors are much more exposed now than they had been following changes to the law in 2012 that prevent those improperly convicted from obtaining compensation from the State unless they can prove beyond all reasonable doubt that they are innocent.
It follows that although the basic work that needs to be done will be common in each case, the work that an individual case needs will vary greatly. The time needed for a basic trial can perhaps be estimated as follows:
- Initial hearing in the magistrates’ court including the time spent taking instructions, applying for legal aid, travelling and waiting – 2 hours
- Prepare a written bail application – 30 minutes
- Attend a bail hearing in the Crown Court – 1 hour travel, 18 minutes waiting, 12 minute hearing – 1 hour 30 minutes
- Receiving and considering the prosecution evidence (simple case) – 1 hour
- Taking the client’s instructions in prison including 1 hours travelling, 18 minutes waiting or being admitted, 1 hour visit – 2 hours 18 minutes
- Drafting a defence statement – 30 minutes
- Attending the client to sign the defence statement and to confirm and take further instructions with the advocate in the case – 2 hours 18 minutes
- Commissioning an experts report – including obtaining three quotations for legal aid purposes, submitting a request for funding, drafting instructions – 1 hour
- Reporting to the client after the plea and case management hearing – 6 minutes
- Attending one defence witness and drawing up statement – 1 hour
- Preparing trial brief to counsel – 1 hour
- Reporting to client after trial – 6 minutes
- Preparing statement of mitigation and collating references – 1 hour
- Advising client after sentence – 30 minutes
- Total – 14 hours 42 minutes
That basic level of work provides an hourly equivalent rate of £90.26 in a homicide case, £67.51 in a case involving serious violence or drugs case and £21.99 in a case of dishonesty. There are very few murder and serious drugs cases where a solicitor would be able to discharge his or her professional duty by undertaking such a basic level of work.
How much does it cost to provide that service?
The cost of providing legal aid services to those suspected or accused of criminal offences varies according to where the solicitor is based, as the costs of office accommodation and the costs of living vary and how efficiently the solicitor runs their office. The standard method of calculating the costs of providing such a service is to use the broad average direct costs method where all the office or departments costs, including staff costs, are added together and divided according to the number of hours of billable work the fee earners can achieve.
Office overheads will include:
- Business rates
- Water rates
- Heat and Light
- Telecoms costs
- IT provision
- Staff costs
- Practising certificate costs (necessary to operate as a solicitor)
- Audit costs (both accountancy and business compliance)
- Travel costs (either cars and fuel or public transport).
- Tax and national insurance costs
The average salaries paid to those working in the sector also vary according to where the person is employed but are:
- Accredited police station representative / legal clerk – £12,000 – £16,000
- Junior assistant duty solicitor – £18,000 – £22,000
- Senior assistant duty solicitor -£23,000 – £30,000
Lets assume that a typical firm spends £2,000 per month renting its offices and has business and water rates commitments of £1200 per month, heating and lighting costs of £400 per month. They lease IT, photocopying systems and an online case management system at a cost of £1,000 per month. They have to buy stationery and other office consumables at £100 per month. Professional indemnity insurance, employer liability and office insurances cost £6,000 per year. Annual practicing certificates and other professional subscriptions cost £4,000 per year. Accountancy and audit fees, including a case management audit costs £6,000 per year. Their annual telephone and broadband bill, including mobile costs are £3,000 and they have motoring expenses of £8,000 per year. There are miscellaneous costs such as text books, training and advertising and so forth which cost the firm a further £6,000 per year.
The firm employs two admin/secretarial staff at a cost of £24,000 and an accredited police station representative, a junior duty solicitor and a senior solicitor at a combined cost of £78,000. The three fee earners bill 36 hours per week for 46 weeks of the year each; a total of 4,968 billable hours per year. The firm’s partner deals with all the regulatory and some serious cases but because of the regulatory commitments he only bills 20 hours per week for 46 weeks of the year – 920 hours. The partner expects the work he does running the firm to provide him with a notional salary of £50,000 in addition to any profit he might make.
It follows that the costs of running the firm are £206,200 per year. As the firm’s fee earners bill 5,888 hours work per year the minimum hourly rate they must achieve to break even is £35.02, more than some of the hourly rates achieved under legal aid scheme now being offered
Breaking even however is not sufficient if the firm is to stay in business. Conventional business wisdom is that a business should re-invest one third of its earnings to grow the business and take a third in profit for the benefit of its owners. That would require the firm to earn an hourly rate of approximately £105.06 per hour which is simply not achievable. additionally no account has been taken of the effect of inflation in years to come.
The bare facts are that the government has imposed rates of remuneration on criminal legal aid lawyers they simply cannot accept as if they do they will run their businesses at a loss and go bankrupt. Additionally solicitors are now well aware that they can have no confidence in rates offered at the bringing of a five year contract as the government retains powers to reduce those rates as it has done during the current and over extended legal aid contract.
The government knows, because its own Public Defender Service, a pseudo criminal legal aid practice that operates in South Wales, Cheltenham and County Durham costs in the region of 43 to 76% more to run than comparable legal aid practices, that the rates being offered are unsustainable. They also know that the rates being offered to criminal legal aid lawyers are far less than the rate of approximately £200 per hour the government recognised as being reasonable compensation for the legal costs of acquitted defendants had incurred immediately prior to October 2012 when the government restricted the ability of acquitted defendants to recover their costs.
If Mr Gove persists with his intransigence he will breach his duty to ensure that criminal legal aid is made available to those who need it as set within section 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
11th July 2015
James Parry is a Solicitor Advocate and Partner in Parry Welch Lacey LLP