Evaluation of the Reforms to Summary Criminal Legal Assistance and Disclosure

4 Perceived Impact of the Reforms on Case Preparation and Plea Advice

Introduction

4.1 This chapter examines perceptions of the impact of the reforms on case preparation and plea advice. As such it focuses, in particular, on the practices and experiences of defence solicitors in relation to the level and nature of client contact and the advice given to their clients about how to plead. Although the reforms to both legal aid and disclosure are addressed in this context, the main discussion revolves around the legal aid reforms as these were particularly concerned to influence the behaviour and practice of defence solicitors. Perceptions of the wider impact of the reforms to disclosure are discussed in the next chapter.

4.2 The chapter is based on data from a number of sources: a national survey of defence solicitors (with an achieved sample of 202 and a response rate of 29% - see Appendix C for further details); qualitative telephone interviews with defence solicitors; and qualitative face to face interviews with defence solicitors, fiscals, and accused persons.

4.3 The analysis presented here will show that criminal justice professionals found it difficult to separate out the impact of the reforms to SCLA and to disclosure. On balance, however, changes to legal aid were seen to have been of greater significance than the changes to disclosure. In addition, defence solicitors often made reference to the impact of the move to fixed payments under SCLA. This structural element of legal aid was introduced in 1999, and was not changed by SJR. Nevertheless, it continues to feature prominently in discussions with solicitors.

Impact of legal aid and disclosure reform on early case preparation

4.4 There does not seem to be strong evidence that the level of client contact has reduced significantly in recent years. But those who did think there had been a change were much more likely to attribute this to the legal aid reforms than to the changes to disclosure or other factors.

4.5 The postal survey of defence solicitors included questions on whether there has been any change in client contact (both the level of contact and the nature of that contact) since the summary justice reforms to criminal legal assistance and disclosure were introduced. Most respondents (60%) said there had been no change in contact levels, 24% that there had been a decrease and 16% that there had been an increase.

4.6 Those who said there had been either an increase or a decrease were asked to say whether this was as a result of the reforms to legal aid, disclosure, both of these, or neither. The most commonly mentioned reason for a change in level of client contact appears to be the reforms to legal aid - mentioned by 51% of solicitors who said there had been a change (see Figure 4-A). By comparison, 14% perceived the change to be mostly a result of the disclosure reforms, whilst a further 27% perceived that both reforms have worked together to cause this change. Nine percent perceived that change in contact was not related to either the legal aid or disclosure reforms^[18]. Whilst it would have been useful to analyse these responses separately by whether there had been a perceived increase or decrease in contact levels, the small sample sizes for these groups meant this was not possible. However, the survey data suggests that where there is a perception of a change in contact levels, this appears to be related more to legal aid than disclosure.

Figure 4‑A Change in overall level of client contact, and reasons why

4.7 The open text responses from the solicitors survey, the follow up telephone interviews and the earlier case study interviews with defence solicitors help to illuminate the views of the one in four (24%) defence solicitors surveyed who indicated that there had been a decrease in their contact with clients.

4.8 Financial constraints were a common theme in explanations of this apparent decrease in client contact, with defence solicitors talking about 'inadequate funding', 'poorer remuneration', 'not getting paid for client contact', 'legal aid cuts', and a 'reduction in the fixed fee'. But as we shall see below, there is little quantitative evidence to support such a view.

4.9 There has been considerable change over the last 15 years in the way that SCLA is paid, and it is likely that some of the perceptions picked up in this study have been influenced by specific changes which were introduced either before or after those introduced via SJR. One of the most notable of these earlier changes was the introduction of a fixed payment system in 1999 for summary cases. Previous research into the impact of fixed payments in summary cases (Stephen and Tata, 2006) suggested that there had been a decline in the level of client contact as a direct result of the move from itemised billing ('time and line') to fixed payments.

4.10 Some solicitors clearly feel they are now worse off as a result of a number of factors including the fixed fee system itself, which was seen as placing restrictions on the amount of work they could do on a case as well as the time spent with a client. There were also concerns about the removal of the minimum payment for Advice and Assistance; the frontloading of payments; the impact on defence solicitor business from a shift in summary cases to the JP court; and the pressure to take account of business needs such as reducing costs and increasing the number of cases they have. Overall, these developments were felt by some defence solicitors to have impacted negatively on client contact and to have resulted in fewer meetings with clients (including less contact outside of court, fewer custody visits at police stations, fewer visits to clients in prison). This, in turn, was felt to impact on the quality of case preparation and representation.

My initial reaction obviously was that we were not going to be paid for work . . whether you have 1 or 10 meetings with the client and if necessary to precog witnesses. If you go to an ID court and you are not first on list you could be waiting 2-3 hours not being paid when you could be doing a lot of work that fixed fee doesn't cover . . .[DSF 44]

You have to explain to clients that there are things that you cannot do now, and you have to say to them quite bluntly that "Yes - you may want me to go and see a witness who lives in Skye, but I'm not prepared to do that. I can't do that". [DSF 22]

4.11 But the perception that remuneration is now significantly lower does not appear to match the analysis of aggregate-level change in the value and mix of payments made under SCLA shown in Table 3.2. The number of ABWOR payments has increased - with a corresponding decrease in the number of payments under summary criminal legal aid - but this has been accompanied by a significant increase in the ABWOR block or 'case disposal' fee. There is little to suggest, from that data, that per case remuneration is significantly different from the position pre-reform.

4.12 What is clear, though, is that fewer summary cases now reach court (as seen in Chapter 3). This suggests there is less potential business for defence solicitors which may be impacting on their overall income. This is not, of course, a result of the reforms to SCLA, but as it has occurred alongside those reforms, it may have associations which are colouring solicitor perceptions. Regardless of changes in the actual level of remuneration - and of the reasons for those changes - it is clear that many defence solicitors believe that they have been adversely affected and that this in turn is affecting the quality of their client relationships and case preparation.

4.13 But not all defence solicitors held this view, and some viewed the current level of remuneration as adequate in dealing with their clients and preparing their cases (see discussion of remuneration for summary work later in this chapter).

4.14 And, where contact was felt to have decreased, this was not always viewed negatively. Some defence solicitors indicated, for example, they did not have to spend as much time discussing things with clients as a result of having a disclosable summary which helped to focus their discussions and required fewer meetings:

Disclosure triggers you into writing to clients or getting them in and you can go through everything with him. [DST 1507]

Not so much because of the disclosure. Obviously you can't simply send the disclosure out to the client so you need to get the client in to discuss the disclosure: so there's still the same contact there. But because the disclosure comes usually in one fell swoop you don't have to see the client so many times as you were doing before when you were doing separate precognitions. (DST 1059)

4.15 A minority of defence solicitors surveyed (16%) suggested that client contact had actually increased since the reforms were introduced. Evidence from the qualitative work with defence solicitors suggests that this was linked to having more evidence to discuss and review with the client at an early stage as a result of the changes to disclosure (both the disclosable summaries and the full statements). Another factor here was the level of financial information now required for legal aid applications - indeed, time spent on this was sometimes, it was claimed, at the cost of discussing the case itself. There was also a view that some solicitors, driven by business considerations, may wish to maintain fairly high levels of client contact as a way of retaining clients on their books. Related to this it was suggested that solicitors now tried to ensure that clients appearing from custody were not 'put through' by the duty solicitor. For instance:

I'm not sure there is less client contact.[…] particularly in custody cases - allowing your own solicitor to act, and I think that's led to more client contact [….There are now more practitioners […] making the effort to be at court - particularly for the custody cases - to see their own clients.
[Defence solicitor stakeholder respondent 3]

4.16 Of course, the quality of representation is not just about the level, but the nature of the contact that solicitors have with their clients. The survey shows that solicitors were more likely to perceive a change in the way they dealt with clients than in the level of contact per se. Half (50%) those surveyed felt that the reforms had affected the way they themselves deal with clients. However, when the same question was asked in relation to other solicitors, a higher proportion (58%) felt that clients were being dealt with differently. Solicitors answering in relation to their own practice tended to attribute any changes in how they dealt with clients to the legal aid reforms (43%) rather than disclosure (25%), although around a third (30%) felt this to be a result of a combination of both reforms^[19]. In terms of what other solicitors do, relatively more weight was given to legal aid reform as an explanation for change in the way clients are dealt with (49%), and less for disclosure (11%), whilst a combination of both reforms was mentioned by 39%.

4.17 Again, the qualitative data (from both defence solicitors and Fiscals) are helpful in illuminating these findings. They highlight, in particular, the way that an emphasis on early resolution, as a result of legal aid changes, has shaped solicitor-client interactions. It was suggested, for example, that some cases were now being discussed with the prosecution before taking fuller instruction from the client. Another factor, discussed more fully in the next chapter, relates to the impact of the disclosable summary.

[Referring to disclosable summaries] It does give a starting point. I think if a client is .. is willing, or is indicating a willingness to tender a plea, it gives you a starting point to work from that you didn't have before.[DSF 22]

4.18 Not surprisingly, there was a wide range of views among accused persons about the quality of case preparation. Some felt their solicitor had adequate time to prepare, while others did not and felt that the quality of their representation had suffered as a result. Some felt that their solicitors were too busy to prepare properly, especially when contact might be limited to a brief discussion in the cells on the morning of the court appearance:

''Cause you're in the cages, and you only get to speak to him for a couple o' minutes, and then he's off again, ken. Depends how many cases he's got going on!' (AF4).

4.19 Others were quite happy with the solicitor that they were officially represented by, despite occasions when that representation had to be delegated: "I really put my trust completely in him" (AF5); "he's always there for us'" (AF2).

Impact of legal aid and disclosure on plea decision-making

4.20 We have already seen from the analysis of SJR monitoring data in Chapter 3 that there has been an increase in the rate of early guilty pleas following the reforms. But are the reforms seen as directly contributing to this? Most interviewees felt that the legal aid reforms have had some influence in encouraging early guilty pleas, although solicitors were more likely to see this in the practice of other solicitors than in their own. Again, many felt that it was the combination of legal aid and disclosure reforms that had facilitated early guilty pleas.

4.21 In the survey, solicitors were asked firstly whether they, and then other solicitors in general, were more or less likely to advise their clients to plead guilty early since the reforms were introduced or whether there had been no change in this practice (Figure 4-B). In terms of their own work, most solicitors (62%) stated there had been no change. Fewer thought there had been no change in the practice of other solicitors (41%). Whilst 38% said they themselves were now more likely to advise an early guilty plea, the figure was higher when answering in relation to what other solicitors do (57%). Very few solicitors felt that either they or other solicitors in general were now less likely to advise an early guilty plea (1% and 2% respectively).

Figure 4‑B More or less likely to advise a guilty plea

4.22 As the analysis of diet outcomes in Chapter 3 showed, there has been a change in guilty plea rates at pleading diet and particularly in the resolution of cases where the accused is appearing from custody: from 23% to 44% and then to 43% in the third year. Interviews with defence solicitors suggest that some may be now more ready to advise their clients to plead guilty because of the revised financial arrangements for legal aid, but that this is often working in combination with the impact of changes to disclosure. For example:

The disclosure has made it easier that way for me to persuade them that there is something here. Why should we do it? The acceptance letter makes it easier to say, "This is an offer. We can go with this or else it'll get worse", and therefore the ABWOR payment of a full payment is 'Manna from Heaven' because I'm now getting paid for doing work - fairly straightforward work - at a very high rate.[DSF 27]

Front loading has made a huge difference. In custody court the majority used to plead not guilty. There's been a change in the mindset of lawyers: because it's front loaded they're going to get paid much as they would if they pled them not guilty. In the pleading diet you get a lot of pleas there. [DST 1659]

Remuneration for summary work

4.23 We have already seen that financial constraints were widely felt by defence solicitors to be impacting on the quality of client contact and representation. Not surprisingly, then, the research also suggests that most solicitors feel they are insufficiently remunerated for summary criminal work. Solicitors who took part in the postal survey were asked whether they agreed or disagreed that since the reforms, solicitors are given a suitable level of remuneration to undertake summary criminal work of an appropriate quality. Three quarters (75%) disagreed, 16% agreed and 9% neither agreed nor disagreed.

4.24 Many solicitors feel that remuneration has fallen in real terms and that they are being asked to undertake more work for less. The change in remuneration levels and payment structure was often linked to issues of fairness. However, as noted earlier, many of the comments from solicitors referred to the 'fixed' nature of SCLA fees - a structural element of legal aid not directly changed by SJR. Investigating complex cases^[20] was considered particularly challenging within the fixed fee system, and some were concerned that they have to rely on the disclosable summary and police report as the only available evidence, whereas previously they may have conducted their own precognitions. It was also pointed out (by a Sheriff) that the legal aid payment does not cover the expense of solicitors having to print out all the disclosure documents themselves. One solicitor reported that they now read through statements with clients on the computer as it is too expensive to print off paper documents.

4.25 But not all solicitors felt that current levels of remuneration were inadequate. An alternative, if minority, view was that the fixed fee was fair overall, because although solicitors have to spend a considerable amount of time on some cases, this was balanced out by relatively straightforward cases being resolved more quickly.

4.26 Some solicitors felt that the 'massive incentive' to submit an early plea was not in the interests of justice, and that clients may not be getting the best service as a result. When asked, in the survey, about the impact of the reforms on fairness to the accused, 39% of solicitors felt there had been no change. A similar proportion (38%), however, felt that the system is now less fair to the accused. The decline perceived by some defence solicitors in client contact, at least among cited cases, was seen as a way in which the system may be less fair to the accused. For example: "From the client perspective it's unsettling to have so little contact" [DS 1647]. Just under a quarter (23%) of defence solicitors suggested that the system is now fairer.

4.27 Whilst many accused were unaware of the changes to legal aid since 2008, some were concerned about the nature of the reformed payment structure. Some felt that that clients would not receive the same level of service if they wanted to plead not guilty. Others suggested that solicitors might also encourage clients to plead guilty because of the flat rate payment that they receive irrespective of the amount of work involved in representing a client:

My own personal opinion now is that lawyers get paid a lot of money you know and… I know they work loads of cases and that, you know, there's a lot of people go through the courts and that, but I do think there is a lot being pushed to plead early and get things through the courts quicker (AF11).