The Criminal Case Profiling Study - London Criminal Courts Solicitors

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The Criminal Case Profiling Study: Final Report

Pascoe Pleasence Hannah Quirk

Legal Services Research Centre 2001

Contents Page Executive Summary

i

1. Introduction and Objectives

1

2. Methodology

4

3. The Landscape of Criminal Legal Aid

16

4. Solicitors’ Firms, Clients and the Criminal Defence Process

28

5. Solicitors’ Crown Court Costs

92

i

Executive Summary 1.

The primary objective of the Criminal Case Profiling Study was to provide a background understanding from which contracting and payment systems for Crown Court criminal legal aid work can develop. The research questions addressed issues such as the distribution of legally aided criminal work, the structure of Crown Court cases, and case cost drivers. A triangulated methodology was adopted, which allowed appropriate quantitative and qualitative methodologies to be directed towards specific research questions.

2.

Quantitative methods were used to analyse data drawn from various legal aid administrative computer systems and detailed data extracted from nearly four hundred solicitors’ Crown Court case files. This analysis was limited by the quality and compatibility of the administrative data sets. Qualitative methods were used to contextualise and develop the quantitative findings. These involved keeping observational notes of the case files examined, and the conduct of in-depth interviews with sixty criminal justice practitioners, including thirty solicitors and ten other feeearners in solicitors’ firms.

3.

The participating solicitors’ firms were sampled from six regions, chosen to cover a range of locations with distinct geographical and socioeconomic characteristics. Forty-four solicitors’ firms were visited over a period of eighteen months. Data from thirty-nine firms visited postpiloting were used in the quantitative analysis.

4.

In the 1999/00 financial year, over £750 million was spent on criminal legal aid. £109 million was spent on police station work, of which around two-thirds was paid to ‘own’ solicitors and one-third to duty solicitors. London accounted for almost 25% of all police station legal aid expenditure. £233 million was spent on criminal legal aid in the magistrates’ courts, 46% of this was paid through lower standard fees and just over 25% through non-standard fees. £19 was spent on the court duty solicitor scheme, and £25 million on criminal Legal Advice and Assistance. The majority of the £371 million spent on Crown Court criminal legal aid was paid to barristers. Around £115 million was paid to solicitors.

5.

The average solicitors’ Crown Court case cost was just over £1,550. The median, though, was a much lower £500, reflecting the skewed costs distribution. Thus, around three-quarters of cases qualified for standard fees. Over 90% of appeals from the magistrates’ courts and cases committed for sentence qualified for standard fees. The most expensive 10% of cases accounted for two-thirds of overall expenditure, and the most expensive 1% for over one-third. The same was true in respect of barristers. Overall payments to individual solicitors’ firms

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varied greatly, with the majority of them receiving less than £10,000 per year. Around 2% of firms received payments totalling over £150,000. 6.

The majority of the forty-four sample firms were ‘high street’ type firms with between two and ten partners. Although the average income from criminal legal aid was £44,521, there was a marked contrast between firms’ individual incomes; five firms received more than £100,000, one less than £500. All firms covered the full spectrum of criminal law, and most firms did just defence work. Almost all of the defencework done was legally aided.

7.

Most clients were young, local, unemployed males with previous convictions. However, defendants’ profiles varied between offence categories. Many clients suffered from the effects of chaotic lifestyles, which had led to a cycle of criminal behaviour. Solicitors dealt routinely with clients with extreme mental health, substance abuse and/or communication problems. They also had to cope with many clients having little interest in the progress of their cases and failing to attend appointments at firms’ offices, the courts or with criminal justice system officials. Despite this, and other difficulties, solicitors did not often suffer from cynicism, frequently putting great time and effort into developing their relationships with clients. Solicitors often adopted a role more akin to that of social worker than lawyer. Some solicitors, though, did not go to any extra lengths for such clients.

8.

The largest sample offence case category was ‘dishonesty’, followed by ‘violence’ offences. Injuries suffered by victims ranged greatly, from minor to permanent (murder/rape injuries). The value of property damaged or stolen also varied greatly. The average number of charges faced by clients was 2.9. The majority of cases involved only one defendant. 85% of cases had been committed to the Crown Court other than for sentence.

9.

Having been arrested, over 70% of clients were interviewed by the police for no more than one hour. Sex offence cases, however, had a median interview time of twice all other offences. Half of all clients were held in custody for less than fifteen hours and a quarter for more than twentyfour hours. There were some problems with the accuracy of police interview transcripts. There was substantial factual agreement between police and clients in 28% of cases; again, this varied according to offence. Only 51% of clients were definitely represented at the police station and 16% were definitely not.

10. Over half of all sample clients initially offered a plea of not guilty to all charges. However, almost half of those who did so eventually changed their plea. There were differences in the rate of guilty pleas between different offence categories, and between different types of client. Changes in pleas often accompanied a change in the number or seriousness of charges. Over 40% of sample clients who changed their plea did so to a reduced number or seriousness of charges. 40% of

iii

those cases that went to trial resulted in acquittal, with the rate being higher for female and minority ethnic clients and for clients with five or fewer convictions. Overall, 83% of cases resulted in a conviction. The majority of sentences were custodial although custody rates varied by case category. The average custodial sentence was just over two years. 11. The average period of time between offence and case disposal was just over one year. If a guilty plea was recorded, cases took about three months less to conclude. Delays had a variety of causes. Some resulted from clients wishing to ‘put off the evil day’ or wanting to see whether witnesses attended court before admitting guilt. Others resulted from the practical difficulties of, for example, witness availability, or the inefficient scheduling of cases by the courts. Others resulted from personal errors. 12. The average cost of sample cases was above the national average, due to their relative seriousness. Sex offence and fraud cases were the most expensive and dishonesty offences the least. Cases committed for trial cost around four times more than cases committed for sentence. Solicitors seemed to take little account of cost in their case management, although most firms had computerised time recording systems, which could be used for monitoring general profitability. There was general agreement amongst the solicitors interviewed that the introduction of standard fees in the magistrates’ court had not had an adverse effect on income levels. Indeed, some felt they had benefited financially. There was remarkably little interest in the potential reform of Crown Court costs. This may have been a consequence of the extensive coverage of the current Crown Court standard fee scheme, the benign introduction of standard fees to the magistrates’ courts, and the fact that many solicitors’ firms receive the bulk of their criminal legal aid income from magistrates’ court work. In general, there was agreement that greater standardisation of Crown Court payments was possible. 13. The Narey reforms, introduced in 1998, have had a significant impact on the magistrates’ court stage of proceedings. Those solicitors who mentioned the changes were mostly approving about the increased speed of the dispatchment of cases and the increased eligibility for legal aid for defendants charged with minor offences. However, some concerns were expressed that the speed of processing cases could jeopardise the quality of defence work and the overall justice of the criminal process. 14. Solicitors’ Crown Court case costs averaged around £1,550 in the 1999/00 financial year. However, these costs varied greatly between different types of case, classes of offence and offence categories. Jury trials were many times as expensive as appeals from the magistrates’ courts and committals for sentence. Class 1 offence cases, were typically ten times as expensive as Class 4 offence cases. Fraud cases were forty times as expensive as burglary cases.

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15. There were differences in cost variance between detailed offence category cases. Some offence categories were relatively homogenous as regards costs, others had highly skewed cost distribution patterns. Part of the reason for the differences seems to have been plea patterns. Different offence categories were associated with different trial rates, and those offence categories associated with the lowest trial rates were associated with the greatest cost variance. Cases involving more than one defendant were associated with higher solicitors’ costs. Cases conducted by solicitors based in London were found to be more expensive, reflecting the peculiar case mix of the Central Criminal Court, Inner London Crown Court and Snaresbrook Crown Court. Variance in solicitors’ case costs was greatly reduced if a small number of high cost cases were removed from calculations. 16. Four separate detailed statistical analyses were undertaken; three based on COMSHARE data and one on the detailed sample data drawn from solicitors’ case files. A regression analysis of COMSHARE data, to determine broad cost drivers, resulted in the development of a model including the duration of trial, case type, class of offence, number of defendants, whether the solicitor was based in London, and offence category. The first three independent variables in the model accounted for around one-third of overall cost variance. When individual offence categories were looked at in isolation, sex, violence and fraud cases were found to have the highest costs. A multilevel model, with Crown Courts as the higher level variable, to determine the effect of individual courts on case costs, indicated that although there was some variance between courts, most was within them. A stochastic frontier analysis was conducted to compare costs across solicitors’ firms and courts and to estimate the efficiency of individual firms and courts in completing the same processes, given the same mix of cases. This indicated that solicitors’ attendance time and volume of correspondence were the prime determinants of cost and throughput efficiency. An increase in the number of jury trials, especially fraud trials, was found to reduce throughput and increase costs and an increase in burglary cases and appeal cases to increase throughput and reduce costs. A regression analysis of the detailed sample data re-affirmed the influence of offence category and plea on case costs. The size of prosecution bundle, number of prosecution expert witnesses, and value of property involved were also cost drivers. 17. The findings indicated that much of the variance within Crown Court solicitors’ case costs can be attributed to particular characteristics of individual cases, and that solicitors’ Crown Court case costs can be reasonably modelled using available administrative data. They could probably be even better modelled if reasonable quantities of data relating to a small number of additional case characteristics were available. However, the findings also illustrated that there are many subtleties to Crown Court cases, which go beyond the explanatory power of data that might be collected routinely.

v

18. In terms of the further introduction of standard payments for solicitors’ Crown Court criminal legal aid work, the results suggest that Crown Court cases can be categorised so as to reduce cost variance greatly. This is important, as the economic risk for solicitors undertaking relatively small numbers of cases reduces in line with variance. However, the categories associated with the lowest cost variance were either low volume and high cost categories, such as Class 1 offences, or high volume and low cost categories, such as appeals and burglary. In the former case, given their gravity, consequence and relative expense, an extension of standard fees might be unwise and unnecessary. In the latter case, standard fees already cover most cases. 19. In the light of this, one approach to extending standard fees would be to simply extend the current scheme, on a banded basis, to take in higher cost cases and lengthier trials, whilst maintaining the safeguard of ordinary taxation for anomalous cases in which costs exceed upper standard fee thresholds. Alternatively, or additionally, given the variance, mean and median cost of appeals, committals for sentence, and burglary and ‘other’ guilty plea cases, such cases might be included in an enhanced standard fee band. 20. Any extension of standard fees should be preceded and accompanied by collection of case outcome data to allow for monitoring of individual firms’ overall case disposal patterns, to ensure that case outputs are not adversely affected by behaviour modification.

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1. Introduction, Objectives and Methodology

1.1

The Criminal Case Profiling Study

1.1 1

The creation of the Criminal Defence Service (CDS), as part of the Legal Services Commission (LSC) in April 2001 resulted in changes to the ways in which criminal cases were funded. These included the abolition of means testing for criminal legal aid, the introduction of the General Criminal Contract and piloting of a Public Defender Service.1 Under the new system, only firms that have been approved by, and hold a contract with, the LSC will be paid for advice, assistance and magistrates’ courts representation. The new system of contracting will be extended to other types of criminal legal aid in stages over the next few years. Ultimately all criminal legal aid schemes will be administered by the CDS.

1.1 2

The objective of the Criminal Case Profiling Study was to provide background data and analysis to inform the implementation of criminal legal aid contracting. Particular emphasis was placed on work in the higher criminal courts. The project was also designed to highlight the implications of broader criminal justice system reforms in a legal aid context. The study was designed to embrace the totality of criminal legal aid work from initial advice in the police station to Crown Court trials and appeals and from the least to the most expensive cases. The study has therefore involved an investigation into how different criminal legal aid schemes relate to each other. Variations in working practices and case costs between different categories of work, courts and regions and the factors that influence delay, case outcome and case costs were also examined. This has enabled a consideration of the different forms of case classification that might be used within a contracting context.

1.1 3

To maximise its utility, the Criminal Case Profiling Study was undertaken in collaboration with the Law Society’s Research and Policy Planning Unit (RPPU). The RPPU assisted in the design of the study as well as providing resources for the fieldwork stage, we are particularly grateful to Judith Sidaway for her help. The study has incorporated specialist analysis from Paul Fenn (University of Nottingham), Alistair Gray (University of Oxford), Neil Rickman (University of Surrey), and Mark Baldwin (London School of Economics).

1.1 4

Work on the Criminal Case Profiling Study commenced in the spring of 1999. Fieldwork commenced in the summer of 1999 and continued through to the autumn of 2000.

1

An evaluation of the pilot is being conducted by Avrom Sherr, (IALS) Lee Bridges, (University of Warwick) Ed Cape (University of the West of England) and Richard Moorhead (IALS). 1

1.2

The Research Objectives

1.2.1

There are great variations in the socio-economic conditions and local legal cultures within which lawyers operate. As Sherr et al. have observed, different lawyers work for “different types of clients, facing different charges.”2 Solicitors employ varying degrees of delegation and supervision of criminal work.3 Barristers may delegate work, from QCs to juniors, or from senior juniors to other juniors or pupils. Police forces, prosecuting authorities and courts also operate differently around the country. Recognition of the legitimate diversity of working practices and environments is therefore vital in order to anticipate the multifarious potential effects, both good and bad, of changes to work or payment methods and to minimise arbitrary advantage and disadvantage to individual lawyers or solicitors’ firms.

1.2.2

As was recognised in relation to civil legal aid contracting and the development of franchising,4 informed policy and implementation of policy must proceed from an understanding of: (i) how cases may be defined best; (ii) how different cases are structured, in terms of their work, duration and cost; (iii) how different case structures are distributed, in terms of general frequency and as between lawyers, firms and regions and (iv) how firms are structured, in terms of work and costs.

1.2.3

Without such an understanding, it is not possible to determine how contracts may be defined most sensibly; appropriate contract values; how contract compliance might be monitored; how quality might be assured and how any reforms might impact on the legal profession as a whole.

1.2.4

The Criminal Case Profiling Study seeks to provide the basis of such an understanding in the particular context of defence solicitors’ work in the Crown Court. It has been designed to examine such work, not just in isolation, but also in the context of the criminal justice and legal aid systems. A failure to have had regard to the broader context would have been a failure to recognise (i) that the various criminal legal aid schemes overlap, (ii) that the work of solicitors and barristers can overlap, and (iii) that the actions of the police, prosecuting authorities and lower and higher courts can have a profound impact on the conduct of defence work. However, the main emphasis of this report is on the defence work of solicitors in the Crown Court.

2

Sherr, A., Goriely, T., Webley, L. and Paterson, A. (1997) Outcome Measures for Criminal Representation, Report prepared for the Legal Aid Board. 3 McConville, M., Hodgson, J., Bridges, L. and Pavlovic, A. (1994) Standing Accused: The Organisation and Practice of Criminal Defence Lawyers in Britain, Oxford: Clarendon; Sidaway, J. and Punt, T. (1997) Paralegal Staff in Solicitors’ Firms, London: Law Society. 4 See Pleasence, P., Maclean, S. and Morley, A. (1997) Profiling Civil Litigation: The Case for Research, London: Legal Aid Board; Sherr, A., Moorhead. R. and Paterson, A. (1994) Lawyers: The Quality Agenda (Volumes 1 and 2), London: HMSO. 2

1.2.5

The specific research questions that formed the core of the Criminal Case Profiling Study were: i. What is the distribution pattern of legally aided criminal work in terms of: case numbers and costs; globally, and between different legal aid schemes, regions, courts, solicitors’ firms and barristers? ii. What are the particular distributions relating to different categories of case and client? iii. How are legally aided criminal cases structured, in terms of work, duration and cost, globally and between different regions, courts, solicitors’ firms and barristers? iv. What are the particular structures relating to different categories of case? v. What are the principal cost, duration and outcome drivers in criminal cases? vi. What form of case categorisation is most suited to grouping legally aided criminal cases on a cost and practice basis? vii. What is the risk, on the part of both the Legal Services Commission and service providers, in relation to potential standardised fee schemes? viii. To what extent do practitioners consider the cost of cases in managing their practice, and how does this influence their behaviour? ix. What measures might be adopted to assess the quality of solicitors’ legally aided work in the Crown Court?5 x. How might extended standard fee, graduated fee or other payment mechanisms be introduced along with Crown Court legal aid contracts? xi. At what cost level would such payment mechanisms cease to balance risk equitably between the Legal Services Commission and service providers? xii. In what ways are solicitors and barristers adapting their working practices to address the legal aid and criminal justice reform programmes?

1.2.6

This report is comprised of four main chapters: Chapter 2 sets out the methodology of the Criminal Case Profiling Study; Chapter 3 explains the broad context of criminal legal aid provision; Chapter 4 describes the study’s sample of criminal legal aid solicitors’ firms and clients, and examines the criminal process as manifested by their experience; and Chapter 5 explores solicitors’ costs in legally aided Crown Court cases in detail and discusses the implications for potential simplified case payment systems.

5

Ed Cape (University of the West of England) designed a data collection instrument for obtaining data for an analysis of the quality of criminal defence briefs to barristers. This analysis will be conducted separately by the RPPU.

3

2. Methodology 2.1

Introduction

2.1.1

A pre-pilot exercise was conducted to examine all potential data sources for use in the Criminal Case Profiling Study. Five LSC regional offices and the National Taxing Team office in Birmingham were visited to determine the quality of data provided on criminal legal aid bills and the process of data entry onto CIS, the Commission’s main computer system, and the NTT computer systems. The Court Service, Lord Chancellor’s Department and Home Office were visited to determine the form and quality of data held on their administrative systems. A small number of solicitors’ firms were surveyed to ascertain the quantity and quality of data that might be available in solicitors’ case files. A report setting out the findings of this pre-pilot exercise was produced in 1999.6 The initial methodological design was informed by those findings.7

2.1.2

To answer the core research questions, a triangulated methodology was adopted. This incorporated both quantitative and qualitative methods. It also included a literature review, aimed at identifying the lessons of experience and past research. A triangulated methodology was adopted as no single methodology was appropriate to answer all of the core research questions. Neither was any single data source was either fully comprehensive or completely reliable. Triangulation allowed appropriate methodologies to be directed towards specific research questions or their components. It also enabled the reliability of the data used to be tested.

2.1.3

The quantitative methods used in the study involved the examination of large and small-scale data sets. The former were drawn from the various legal aid administrative computer systems. A detailed breakdown of the distributions and patterns in criminal defence case costs enabled their variability to be quantified. A summary of the problems faced in using these data is set out in the next section. Initially, we had hoped to obtain cost data from solicitors’ firms’ own systems. To this end, short data collection forms were sent to a number of firms. This practice was abandoned as forms were rarely completed and, where they were, it seemed to have been on the basis of personal memory, rather than through an interrogation of management systems.

6

Pleasence, P. (1999) Costing Criminal Cases – Summary Methodological Outline, Unpublished report prepared for the Legal Aid Board. 7 Detailed description of the various data sources referred to a full account of the use and problems associated with the use of administrative data sources in research projects such as this can be found in earlier papers: Ibid. and Pleasence, P. (1999) Operational Records, Paper presented at the Law Society Annual Research Conference 1999. 4

2.1.4

To bolster the data relating to high cost criminal cases, it was planned to draw additional administrative data from a sample of taxation summary sheets and the Digest of cases costing in excess of £45,000. This would be a valuable and important exercise but it proved to be too great a commitment within the general context of this project.

2.1.5

Secondly, detailed data, extracted from nearly four hundred solicitors’ Crown Court case files, were examined. Data relating to the client, the charges, the investigation, processing and disposal of cases were collected using specially designed forms. Details of the sample of firms the files were drawn from, the design of the data collection forms, and the difficulties encountered in extracting data are set out in sections 2.4 and 2.5. Standard statistical methods, including multiple linear regression, multilevel modelling, and stochastic frontier analysis, were employed to explore the drivers of case duration, costs and outcome.

2.1.6

The qualitative methods used in the study involved keeping observational notes of the files examined for the purposes of quantitative data collection. Any interesting or unusual findings within the files were noted, along with a brief description of the nature of each case.

2.1.7

A programme of additional interviews was undertaken with other criminal justice system practitioners8 around the country. The feeearners were drawn from the firms visited for the purposes of quantitative data collection. The interviews were aimed at contextualising and developing the quantitative findings, by (a) exploring practitioners’ experiences and beliefs relating to the core research questions and (b) explaining the context of anomalous quantitative data. Details of the sample are set out in sections 2.4 and 2.6.

2.1.8

The barristers interviewed were selected according to criteria suggested by the Criminal Bar Association. Two chambers were selected in London and four outside London,9 with three interviews per chambers (a Q.C. or senior junior, a junior and a clerk).

2.2

Legal Aid Administrative Computer Systems

2.2.1

The Criminal Case Profiling Study draws upon data obtained from a number of legal aid administrative computer systems. The Legal Services Commission’s ‘CIS’ system contains details of all payments made under the police station and court duty solicitor schemes, along with details of clients, offences and payments made in respect of criminal legal aid orders in the magistrates’ courts. The Lord

8 9

See paragraph 2.5.4 for details. Birmingham, East Anglia, South Yorkshire, West Country 5

Chancellor’s Department’s ‘COMSHARE’, ‘CDMIS’ and ‘LAVER’ systems contain details of payments made under higher court criminal legal aid orders. 2.2.2

Together, these four systems contain data relating to the entire criminal defence process, from the provision of advice in the police station, through the provision of assistance and representation in the magistrates’ and Crown Courts, to the provision of assistance and representation in appeals against conviction or sentence. Unfortunately, because the systems have been developed at different times and for different purposes, much of the data they contain cannot be linked. Unfortunately, it is not possible to join together the details of the magistrates’ and Crown Court components of individual cases, as the lower and higher court systems do not contain a single common, unique case identifier.

2.2.3

As a result of not being able to merge magistrates’ and Crown Court data, it was not possible to bolster the Crown Court data with data drawn from a further range of sources, such as prior offending data held by the Home Office. This could not be done without assisted person details.

2.2.4

The CIS system is the most data rich of the four systems, containing details of assisted persons, their previous use of legal aid schemes, the charges they face and the progress and outcomes of their cases. Only limited use could be made of CIS as it is concerned with the criminal process only up to the point of transfer to the Crown Court. The COMSHARE and CDMIS systems contain little detail of individual criminal cases and no details whatsoever of assisted persons. We considered the use of ‘CREST’10 data to supplement those obtained from elsewhere but the cost, difficulty and uncertain potential of the data precluded this. Thus, whilst data from the higher court systems has been useful for building up a broad profile of Crown Court criminal legal aid work, and its costs and cost drivers, we were not able to use it to conduct a detailed analysis of cost drivers.

2.2.5

To compound the above problems, the computer systems developed to administer higher court criminal legal aid have been plagued by reliability and developmental problems.11 This resulted in there being substantial periods of time for which no data relating to barristers’ graduated fees are available.

2.2.6

Dealing with the errors relating to COMSHARE data was a particular challenge. An initial inspection of solicitors’ firm level COMSHARE data revealed over 8,700 account numbers, an unlikely figure in the light of the smaller number recorded in respect of lower court work in CIS. A visual examination of the COMSHARE data revealed many account number entries in illegitimate formats. An initial mechanistic

10 11

6

The Crown Court administrative computer system. For details, supra. n7.

clean up, involving standardising the length and type of the numbers reduced the number of accounts by around 1,400. A process of obvious entry error correction (e.g. where a ‘S’ had been entered in place of an ‘5’) and the removal of items containing unrecoverable errors, led to the number being reduced by a further 500. Despite the overall number being reduced by over 20%, it is likely that a significant number of errors remain in the data. For example, the ‘cleaned’ data suggests that over 1,000 solicitors’ account numbers are associated with no lower court payments and one higher court payment. This figure cannot but raise further suspicion as to the integrity of the COMSHARE data. However, as most of our statistical analysis of the data was conducted at either the case or firm level, and firms which conducted only a small volume of work were excluded from the latter in all regression, multilevel and stochastic frontier analysis, we believe that our conclusions are reasonably reliable. 2.3

The Sample of Solicitors’ Firms

2.3.1

The solicitors’ firms that participated in this project were sampled from six areas, chosen to cover a range of locations with distinct geographical and socio-economic characteristics. In addition, it was decided to include a Narey pilot area, as the changes made in the processing of cases by these reforms were likely to be pronounced in these areas. A sample of firms was drawn from all those firms listing ‘crime’ as one of the services that they offered in the Solicitors’ Directory in: • • • • • • •

East London Croydon East Anglia the North-East South and West Yorkshire Birmingham the West Country.

2.3.2

The sample was stratified to provide selections from small, medium and large firms. For this purpose firms were categorised as sole practitioners, two to four partner firms, five to ten partner firms, or firms with more than eleven partners.

2.3.3

A number of problems arose with this method. Of fifty firms initially selected, five said they did not do any criminal work, four said they did only a handful of criminal cases a year and seven said that they did not do any legally aided work. Two firms no longer existed, two did not want to participate and two were otherwise unable to be involved. In addition, firms that were large in terms of the number of partners did not necessarily have large criminal departments. This led to a far greater proportion of low-volume firms appearing in the sample than 7

had been anticipated. To address this, a further sample was drawn mid-way through the fieldwork. For the second wave of data collection, firms were drawn from those that had received Crown Court legal aid payments for at least twenty cases, totalling a minimum of £10,000, in the previous financial year. Although this too generated some anomalous selections (firms that had done only a small number of expensive cases), this proved a more effective method of generating a broad range of firms. 2.3.4

Some firms refused to participate in the survey and we did not pursue this as our sample was sufficiently large not to have to do so. Reasons given for refusal included: hostility to the Legal Services Commission as a result of increased workloads and declining remuneration; a lack of space or short-staffing; and the time and financial cost of retrieving files from storage for those firms with a relatively small Crown Court workloads.12 Sole practitioners were more likely to refuse to participate, and this is reflected in the final sample. A recommendation to future researchers would be to cross check any sample drawn up with the schedule of the Legal Services Commission audit team. Several firms approached had either just undergone or were about to receive an audit inspection, which clearly imposed a great additional burden on them. One firm welcomed us with remarkable forbearance at a time when every one of their several hundred criminal files was on the floor, being rearranged according to the audit team’s instructions.

2.3.5

In the final tranche of data collection, questions were raised by two firms as to the Legal Services Research Centre’s right of access to the files, and to issues of clients’ rights of privacy under Article Two of the European Convention on Human Rights. The right of the Legal Services Commission to examine files is contained within the Access to Justice Act 1999 and the associated regulations.13 As with any publicly funded service, it is essential that audit and research take place. In future, this right of access should be made explicit to both solicitors’ firms and clients.

2.3.6

These questions of our right of access were not dismissed lightly and led to detailed consideration of the material needed for examination. Realistically, it would have been impossible to avoid all personal data; witness statements, pre-sentence reports and psychiatric reports are all of a very personal nature. The reading of such material was

12

Firms with a high turnover of cases would have twenty closed Crown court cases within the office. Where firms do relatively little Crown court work, twenty cases could cover a period of a year or more, so many of them would have sent these files to remote storage. 13 “(3) The Commission may require a supplier to provide to any person authorised by the Commission to request it such information or documentation as it may from time to time require for the purpose of discharging its functions under the Act or the Legal Aid Act 1988. (4) The relationship between or rights of the supplier and client, or any privilege arising out of such relationship, does not preclude the supplier from disclosing such information or documentation.” (The Legal Services Commission (Disclosure of Information) Regulations 2000). 8

essential to gaining an understanding of the progression and outcome of cases. Personal details may also be of significance in the management and costs of a case, for example, where witness statements are contradictory or the defendant’s psychiatric state influences the progression or disposal of the case. This is an important area of methodological ethics that clearly requires further exploration. It has relevance to many other fields of research, such as medicine or education, although crime has the additional, and perhaps more contentious, factor of the privacy of complainants and witnesses to consider. 2.3.7

In total, forty-four solicitors firms were visited over a period of eighteen months, between May 1999 and October 2000. Usable data were collected in respect of 379 cases.14 The number of files examined in individual firms varied according to the number of researchers available, the time spent in the firm (initially one day visits were made but this was extended to two-day stays during the second phase of data collection), and the layout and content of the files. The average number of files examined in each firm was ten, but the figure ranged from three to sixteen. In all, over one hundred person days were spent extracting data from files. Some firms, particularly those visited early on, did little criminal work, and found it difficult to provide the requested twenty most recently closed files.

2.4

Quantitative Data Collection

2.4.1

The first version of the case-file data collection form, developed in the light of pre-pilot work, was piloted in five main sample firms proved to be too elaborate for continued use. A number of the data fields were then removed and others modified to reduce both ambiguity (e.g. in relation to the dates of receipt of prosecution evidence) and complexity (e.g. in relation to the charge and plea tracking matrix that had been designed). The second version of the form reflected our reduced expectations of the data available from the files, and a better awareness of the complexities of data definition in this context. As much of the pilot data were incompatible with data collected using later versions of the form, none of it was used for analysis. Later versions of the form were refined in the light of experience. Some changes between versions reflected an evolution in coding, minor changes relating to the ordering of data fields and the removal of problematic or rarely available forms of data. The final version15 included 104 data fields, relating to the:

14

Data that could not be used in our final analysis were collected in respect of thirty-three additional cases. Details of the problems attaching to the data are set out in the next section. 15 A copy of the final version of the case-file data collection form is attached as an appendix to this report. 9

• • • • • • • • • • • • •

solicitor’s firm (6) client (15) offences (14) police station (11) charges (7) evidence (10) co-defendants (2) plea evolution (6) use of counsel (5) key dates (12) hearings (2) case outcome (6) case costs (8).

2.4.2

The stage of a case at which firms formally opened files varied. Some firms did so immediately after advising a client at the police station but most waited until formally instructed or, more pertinently, until a legal aid application had been submitted.

2.4.3

Much of the difficulty encountered in extracting data from case files was due to the enormous variety in their layout and content. Some files were folders full of papers in no particular order; others were neatly divided into sections. Some files seemed to have been carefully managed, others not at all. One sample firm had such great problems with their file management that most of the files examined contained irate notes from the senior partner to the fee-earners about their failures to record work done, to submit bills on time or to send client care letters (Cases 75, 79, 80, 86). One such note said, in desperation at yet another bill being submitted out of time: “This could be a training exercise for the Legal Aid Board” (Case 80).

2.4.4

All of the files had been ‘billed’, which meant that they had been sorted through to extract the information necessary to produce a bill for costs. Some files had probably been more organised when the case was in progress than when we saw them, although not all were. One file note read: “Long attendance on client who is – apparently – ill. He has no idea what is going on today and, unfortunately, neither do I from the files. [X] is prosecuting – he is ‘too busy’ to help me out with what is going on, so I am flying blind.” (Case 15)

2.4.5

10

A common problem, that prevented us from obtaining data relating to the full life of cases, was that some firms separated their magistrates’ and Crown Court work into separate files. This meant that the data

relating to the police station and magistrates’ court stages of cases were not available for inspection. Another problem was the magnitude of some files. Those relating to complex offences such as fraud, or multiple and serious offences such as a serial rape, could run to several crates of papers, not all of which were necessarily available on our visits. 2.4.6

Filing systems were not the only cause of information not being available for inspection. One firm, most unusually, returned most case documentation to clients once cases were disposed of, on the basis that it was rightfully theirs. Some firms did not send ‘closing letters’ to clients, which was where details of the outcome of the case would normally be found. In these firms, it was often impossible to tell what happened to the clients ultimately.

2.4.7

Whatever the state of the files, deducing the progress of Crown Court cases from a retrospective examination of files is far from straightforward. The purpose of the case file is to aid a solicitor in the preparation of a case, not to be a resource for researchers. There is no need, ordinarily, for a solicitor to write a file note saying ‘received committal bundle’, when its very presence in a file reveals as much, although, helpfully, some did so. Little is written about the method of constructing defences. Many details, especially those that take place at court between counsel, such as the disclosure of material or negotiations over charge and plea, are not recorded in files or, where they are, not in full. Some information, such as the date of offence, was almost always present in files. Other details, of interest to us but not to the conduct of cases, were often not recorded.

2.4.8

The type of firm seemed to have some influence on the way in which the files were set out. One solicitor (NE/5) explained that, as he was the only person who worked on criminal files and crime was only a very small part of his workload, he could remember the details of each case, and still worked ‘on the back of a fag packet’. In firms where there is a greater volume of work and where several people might work on each case, key information should be readily accessible for whoever picks up the file, although this was not always the case.

2.4.9

Over the eighteen months of data collection, the files analysed became more complete. This is probably a by-product of franchising, although, obviously, we also became more adept at extracting information.

2.5

Qualitative Data Collection

2.5.1

The reading of solicitors’ case files, although a far more labour intensive and time consuming exercise than had been envisaged, offered invaluable information that would have been difficult to glean in any other way. The custody records, prosecution bundles,

11

attendance notes, briefs to counsel, letters and bills provided illuminating illustrations of the workings of the criminal justice system. Much of this data fell outside the quantitative information that we had planned to collect. However, we took a decision at the outset of the fieldwork to record our observations of unusual or interesting matters. These notes have provided suggestions as to causes of delay, increased costs, examples of good and bad practice and a means for evaluating how and why the system works as it does. Our observations also enabled us to test what we were told in the interviews. If interviews took place after files had been examined, cases or issues of interest could be raised; if before, the responses of interviewees could be compared with the content of files. 2.5.2

Ideally, we would like to have supplemented our research by observing legal representatives at work. Not only would this have enabled an evaluation of what fee-earners told us, but also it became apparent from the interviews that our observations were disadvantaged by a lack of personal contact with clients. Legal advisers often bring to their work long associations with clients and knowledge of their circumstances and families. This gives them an understanding that cannot be garnered from merely reading the papers and perhaps inhibits the process of becoming ‘case hardened’ and cynical; something that struck us as being difficult to avoid. Unfortunately, logistics prevented such a time consuming means of research.

2.5.3

As well as recording unusual or interesting matters emanating from case files, notes were kept of our observations of the firms we visited. This became more systematic as the project progressed. Notes were made about the ambience of each firm, the attitudes and efforts of the staff and, most crudely but perhaps most interestingly, whether we would want to be represented by them, were we to find ourselves in need of such representation. Both our file and firm notes, subject to all the usual caveats about representativeness and objectivity, provided a treasure trove of vignettes to complement the quantitative analysis.

2.5.4

A programme of in-depth interviews was conducted with sixty criminal justice system practitioners. Interviews were completed with thirty solicitors, ten other fee-earners working in solicitors’ firms, twelve barristers, six barristers’ clerks, two judges and a representative of the Serious Fraud Office.

2.5.5

The interviews with solicitors and other fee-earners working in solicitors’ firms were designed to provide information about individual firms, their management structures and working practices. This was to explore whether there are differences in the work undertaken and the costs of cases between different ‘types’ of firms, for example, those in different geographical areas or those with different client bases.

12

2.5.6

Each of the first thirty-eight firms we visited for quantitative data collection purposes was asked to nominate a fee-earner to be interviewed during the course of our visit. Due to the exigencies of criminal work, or so we were told, it was not always possible to conduct interviews during the visits. In some cases, interviews were conducted subsequently, by telephone. As we ultimately visited more firms than had been planned,16 fee-earners were not interviewed in the final firms visited.

2.5.7

Interviews with fee-earners lasted an average of forty minutes. A few lasted for less than half an hour and some for more than two hours. The amount of time fee-earners afforded us depended upon their workload, interest, and other commitments. Most of the interviews were tape-recorded and transcribed. A small number were not, owing to technical failures. Full notes were taken during all interviews in case of such an eventuality.

2.5.8

The first version of the interview schedule was piloted in five main sample firms. It was then revised to overcome difficulties in the form of questions and their ordering.17 The final interview schedule contained fewer questions than its pilot counterpart did and the questions were more open-ended. Interviews began with fairly broad questions about the firms, their clients and the type of work that they undertook. These were followed by enquiries as to the management of police station work and criminal casework. Questions then turned to advocacy and factors influencing the work done in the magistrates’ and Crown courts, including charges, pleas and cracked trials. As the criminal justice system involves a number of agencies working on each case, respondents were asked about their working relationships with Crown prosecutors and counsel. They were also asked about the potential impact of defendants on the conduct of their cases. Interviews concluded with questions relating to case management systems and the monitoring of costs. The data from all interviews, including pilot interviews, were included in our final analysis. Although the form of the questions changed, the subjects discussed remained the same and the pilot data seemed too valuable to discard. A copy of the final interview schedule is attached as an appendix to this report.

2.5.9

The interviews with barristers were designed to provide another perspective on solicitors’ practices, the relationship between solicitors and barristers and information about Crown Court hearings that solicitors would have less experience of. The interview schedule used for guiding interviews with barristers was based on the final

16

These additional visits were devoted entirely to building up the quantitative data due to our slower than expected quantitative data collection rate. 17 We are indebted to Lee Bridges of the University of Warwick, for his extensive and constructive comments on the pilot interview schedule. 13

interview schedule used with solicitors.18 All interviews with barristers were conducted by telephone. Detailed notes were made contemporaneously. The duration of the interviews ranged from twenty to fifty minutes, with an average of thirty minutes. A few interviews were interrupted by pressing work matters, but these were completed later. 2.5.10 We considered it unlikely that the quality of data obtained from telephone interviews would be poorer than that that could be obtained from face-to-face interviews, as barristers are used to discussing complex and sensitive matters over the telephone. As compared to the solicitors however, there was less opportunity to evaluate critically what was said, as neither briefs nor chambers were examined. 2.5.11 The interviews with barristers’ clerks were conducted in the same manner as those with barristers. The clerks’ interview schedule was broadly similar to that used with barristers. It was thought that clerks would have an insight into the workings of chambers as a whole, particularly in relation to costs. 2.6

Summary

2.6.1

The primary objective of the Criminal Case Profiling Study was to provide a background understanding from which contracting and payment systems for Crown Court criminal legal aid work can develop. The research questions addressed issues such as the distribution of legally aided criminal work, the structure of Crown Court cases, and case cost drivers. A triangulated methodology was adopted, which allowed appropriate quantitative and qualitative methodologies to be directed towards specific research questions.

2.6.2

Quantitative methods were used to analyse data drawn from various legal aid administrative computer systems and detailed data extracted from nearly four hundred solicitors’ Crown Court case files. This analysis was limited by the quality and compatibility of the administrative data sets. Qualitative methods were used to contextualise and develop the quantitative findings. These involved keeping observational notes of the case files examined, and the conduct of in-depth interviews with sixty criminal justice practitioners, including thirty solicitors and ten other fee-earners in solicitors’ firms.

2.6.3

The participating solicitors’ firms were sampled from six regions, chosen to cover a range of locations with distinct geographical and socio-economic characteristics. Forty-four solicitors’ firms were visited over a period of eighteen months. Data from thirty-nine firms visited post-piloting were used in the quantitative analysis.

18

A copy is attached as an appendix.

14

3. The Landscape of Criminal Legal Aid 3.1

Introduction

3.1.1

As can be seen from Figure 1.1, criminal legal aid expenditure has increased in recent years, with an overall increase of around a quarter in the last five years. The burden of expenditure has been shared more or less equally between the Legal Services Commission19 and the Lord Chancellor’s Department.20 Figure 1.1 21 Net Expenditure on Criminal Legal Aid (1995-1999) (Excluding Criminal Legal Advice and Assistance and ABWOR Costs) Scheme LAB LCD Total

1996 355 309 664

Expenditure (£m) 1997 1998 384 402 338 383 722 785

1999 412 371 783

2000 450 422 872

3.1.2

Since April 2nd 2001, under the General Criminal Contract, solicitors’ firms are paid agreed monthly amounts, with claims being set-off against payments. The contract does not limit case starts, or the total value of payments that may be made. Work is divided into five classes: criminal investigations, criminal proceedings, appeals and reviews (including Criminal Cases Review Commission cases), prison law and associated public law challenges arising from any matter within the crime category. Each class of work is divided into units of work: advice and assistance, advocacy assistance and representation.22

3.1.3

The data examined in this study relates to the situation before the CDS and the explanations and data that follow refer to situation prior to April 2001. All higher court administrative data has been obtained from the Lord Chancellor’s Department, which administers legal aid in the Crown Court, and not the LSC or CDS.23

3.1.4

In the 1999/2000 financial year, the year in which the great bulk of our fieldwork was undertaken, the Legal Aid Board spent £109 million on the police station advice scheme, £25 million on the court duty solicitor scheme, £233 million on criminal legal aid, £20 million on a

19

The Legal Services Commission replaced the Legal Aid Board from April 1st 2000 under the Access to Justice Act. 20 Responsibility for administering legal aid in the Crown Court is intended to pass to the CDS in the next few years. 21 Legal Aid Board (1997 to 2000) Annual Report, London: The Stationary Office, Legal Services Commission (2001) Annual Report, London: The Stationary Office, Lord Chancellor’s Department (1996 to 2001) Judicial Statistics, London: The Stationery Office. 22 Some work may be undertaken within the Community Legal Service work classifications. 23 Supra., n.20 15

criminal contracting pilot, and £25 million on criminal legal advice and assistance. 3.1.5

This chapter comprises three main sections, providing an overview of the volume and cost of the schemes through which suspects and defendants could have received criminal legal aid at the police station, magistrates’ court and Crown Court respectively. It sets out the findings of a general analysis of data obtained from the Legal Services Commission’s ‘CIS’ administrative computer system and the Lord Chancellor’s Department’s ‘COMSHARE’ and ‘CDMIS’ administrative computer systems. The results of the multiple linear regression, multilevel modelling and stochastic frontier analysis are set out in Chapter 5.

3.2

Police Station Work

3.2.1

The police station advice scheme entitled everyone questioned by the police at the police station to free legal advice, whether or not they had been arrested and whatever their income or capital. This advice could come from a suspect’s ‘own’ or a ‘duty’ solicitor. Payment rates were different for the two schemes and more stringent requirements applied to the provision of advice under the ‘duty’ scheme. Solicitors could delegate this work to an accredited representative. This could be someone employed by the firm or by an agency providing such a service. Of the £109 million the Legal Aid Board spent on the Police Station Advice and Assistance Scheme in the 1999/00 financial year, just under one-third of this was paid to ‘duty’ solicitors, and the remainder to ‘own’ solicitors. A total of 745,381 suspects were assisted, at an average cost of just over £146, an increase of 5.9% on the previous year.24 21.7% of suspects received only telephone advice, the remainder received advice in person.

3.2.2

London accounted for almost 25% of all police station legal aid expenditure. Elsewhere, expenditure varied between regions, even if population size is taken into account, reflecting different levels of takeup of the services offered.

3.3

Magistrates’ Court Work

3.3.1

The court duty solicitor scheme provided advice and representation for defendants appearing in the magistrates’ court. Since the Narey reforms25 were introduced, all defendants are entitled to free advice

24

The Annual Report of the Legal Aid Board attributes this to a trend for solicitors to spend more time advising clients since the implementation of the Criminal Justice and Public Order Act 1994. The increased consultation time may also be attributable to the accreditation of legal representatives (Bridges, L. and Choongh, S. (1998) Improving Police Station Legal Advice, London: Law Society). 25 See section 4.15. 16

from a duty solicitor the first time they appear in the magistrates’ court, except in some minor cases, whatever their income and capital. This has led to a substantial rise in the use of the scheme.26 There are around 350 court duty solicitor schemes. In the 1999/00 financial year, the introduction of the Narey reforms led to an 80% rise in the number of court duty solicitor claims and an increase in the payments made to court duty solicitors from £16 million to over £25 million.27 Over 250,000 defendants were assisted, at an average cost of just under £100. 90.8% of claims related to representation, and the remainder were for advice only. 3.3.2

The criminal legal aid scheme covered the cost of a solicitor to prepare a case and to represent a defendant at court. It could also cover the cost of a barrister, advice on appeal and preparing notice of an appeal. There was both a means and an ‘interests of justice’ test. In the magistrates’ courts, solicitors were generally paid a ‘lower’ or ‘higher’ standard fee plus a fixed amount in respect of telephone calls and letters. If a case involved an unusually large amount of work, a non-standard fee was paid, proportionate to the total amount of work undertaken. In the 1999/00 financial year, lower standard fees accounted for 76.7% of claims. Higher standard fees accounted for a further 12.7% and non-standard fees for the remaining 10.6%. In the same year, £233 million was spent on criminal legal aid in the magistrates’ courts. 28 The remaining expenditure related to exempt cases.

3.3.3

Figure 3.1 shows the average costs the different types of cases within the standard fee bands. Exempt case fees averaged £2,093. Within the standard fee types, guilty pleas and uncontested proceedings were the least expensive, followed by committals and transferrals, contested and cracked trials were the most expensive.

26

See paragraph 3.3.1 below. See section 4.15. 28 The Criminal and Care Proceedings (Costs) Regulations 1989 came into force in December 1998. This meant that solicitors were no longer entitled to claim a separate standard fee for work relating to Bail Act offences. Instead, such claims were incorporated into the overall claim for the case. This led to a reduction of over 30,000 in the number of lower standard fees claimed in 1999-00, an increase in the proportions of higher standard fees and nonstandard fees claimed and an increase in the overall average cost per case. 27

17

Figure 3.1 29 Average Cost of Case Types within Standard Fee Bands Mean Cost £294

Lower standard fee Higher £757 standard fee Non £1,722 standard fee

3.3.4

Guilty Committals Contested Pleas for Trial /Cracked £232 £393 £409 £580

£861

£908

£1,064

£2,577

£1,727

In recent years criminal legal aid payments have been made to over 7,000 solicitors’ firms’ account numbers.30 As can be seen from Figure 3.2, not all account numbers received the same levels of payment; the highest earning 10% of account numbers received almost two-thirds of total expenditure on criminal legal aid in the magistrates’ courts.

% of Solicitors' Firms' Account Numbers

Figure 3.2 Sum of Annual Payments Made to Solicitors' Firms' a/c Numbers

3.3.5

29

30 25 20 15 10 5 0 £0-£999

£1,000£9,999

£10,000£19,999

£20,000£39,999

£40,000£59,999

£60,000£99,999

£100,000£149,999

£150,000+

Sum of Annual Payments

The requirement of the Criminal Defence Service that magistrates’ court criminal legal aid payments will be made only to those firms that have signed the General Criminal Contract means that the number of solicitors’ firms eligible to receive such payments reduced substantially, to around 3,000 from April 2001. The effect on work volumes for firms which continue to undertake criminal legal aid work in the magistrates’ courts is likely to be negligible, as the lowest earning 50% of solicitors’ account numbers received just 2% of total expenditure in 1999/2000.

1999/2000 Solicitors’ firms’ account numbers are designated by the Legal Services Commission. The total of account numbers can be regarded as a proxy for solicitors’ firms, although the two numbers are not the same. Some firms have different account numbers for different offices. Others have a number of account numbers following mergers, etc. 30

18

3.4

Crown Court Work

3.4.1

In the 1999/00 financial year, just under 80,000 criminal legal aid payments were made to solicitors’ firms’ account numbers. These payments related to just over 73,000 cases and around 78,000 defendants.31 The sum total of the payments was £113.5 million, of which £14.8 million related to disbursements and the remainder to profit costs. The mean total solicitors’ case cost was just over £1,550. However, this mean was greatly distorted by a small number of very high cost cases.32 One account number, for example, received £977,205 for a single case. 74% of cases qualified for standard fees.33 Those cases that qualified averaged £581 (median = £355), and those that did not £4,416 (median = £1,583). The median case payment made to account numbers was around £500.

3.4.2

Figure 3.3 illustrates the distribution of case costs. Figure 3.3 Distibution of Crown Court Case Costs

Number of Cases

70000 60000 50000 40000 30000 20000 10000 0