The impact of cuts to legal aid to the availability of legal advice from advice agencies is the subject of a new study commissioned and published by the Ministry of Justice. Interestingly, the study notes that this is the first time such a survey has been carried out – so it cannot actually answer the question of how many not-for-profit agencies have closed down.
What the researchers were able to do was gather information from over 700 agencies that are still in business, actively offering legal advice to individual clients.
Among the findings are the following which I think are worth noting here:
- The majority of responding organisations (76%) provided advice on specific subjects, to specific client groups or in specific locations. Only 22% provided a wider range of ‘general’ advice services.
- Most organisations were well established; 83% reported that they had been providing legal advice for more than ten years. There was also evidence of new organisations emerging as nine percent had entered the sector within the last five years (however this is likely to also include some formed through mergers of pre-existing organisations).
- The use of digital services over and above email was limited, with only 10% offering online services such as Skype or live chat and just 8% reported offering web-based automated programmes with no advisor input.
- The categories of law in which advice provision was most commonly offered by responding organisations – welfare benefits, debt and housing – are areas that have largely or partly been removed from legal aid scope under LASPO.
- Forty-five percent of organisations reported offering a ‘client-specific’ advice service, of these, the most common client groups were women and older people.
- Just over half of the responding organisations (51%) reported there were some client or problem types they had been unable to help with in the current financial year.
- Of these, 62% reported that this was due to a lack of resource, 49% reported that problems fell outside of their remit, and 47% reported not having the appropriate expertise within the organisation.
I have noted in these blogs before the existence of the excellent Family Justice Research Bulletin. This summarises research into the operation of the Family justice system in papers published in academic journals as well as by the Ministry of Justice itself.
The impact of legal proceedings on the lives of children, in particular, is so potentially great that it must be right for research to try to understand what those impacts are, especially given all the changes to the family justice system that have occurred in recent years.
The lastest edition of the Bulletin has just been published (December 2015). It contains summaries of research into different types of family justice proceedings.
Essential reading for everyone interested in the family justice system.
For further information go to https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/485073/family-justice-bulletin-6.pdf
Deferred prosecution agreements enable corporations to avoid prosecution for alleged criminal offences by agreeing to cooperate with investigators. They are permitted, in the UK, as a result of provisions in the Crime and Courts Act, 2013.
The first such agreement was announced on 30 November 2015. The press release from the Serious Fraud Office states:
The Serious Fraud Office’s first application for a Deferred Prosecution Agreement was today approved by Lord Justice Leveson at Southwark Crown Court, sitting at the Royal Courts of Justice.
The counterparty to the DPA, Standard Bank Plc (now known as ICBC Standard Bank Plc) (“Standard Bank”), was the subject of an indictment alleging failure to prevent bribery contrary to section 7 of the Bribery Act 2010. This indictment, pursuant to DPA proceedings, was immediately suspended. This was also the first use of section 7 of the Bribery Act 2010 by any prosecutor.
As a result of the DPA, Standard Bank will pay financial orders of US$25.2 million and will be required to pay the Government of Tanzania a further US$7 million in compensation. The bank has also agreed to pay the SFO’s reasonable costs of £330,000 in relation to the investigation and subsequent resolution of the DPA.
In addition to the financial penalty that has been imposed, Standard Bank has agreed to continue to cooperate fully with the SFO and to be subject to an independent review of its existing anti-bribery and corruption controls, policies and procedures regarding compliance with the Bribery Act 2010 and other applicable anti-corruption laws. It is required to implement recommendations of the independent reviewer (Price Waterhouse Coopers LLP).
HM Treasury has just published (30 November 2015) a policy paper: A better deal: boosting competition to bring down bills for families and firms.
It notes that 40% of the average persons post-tax income is spent on buying essential services, including
Housing costs including mortgage repayments: £4,880
Health products and services £325
Legal and Banking £35
The policy paper sets out its aim of ensuring that there os more competition in all these markets to drive down costs to the indovidual and small business. This is also part of the drive for increased productivity.
Although only a small part of the total, the provision of legal services is not going to be immune from scrutiny. In a Consultation paper, to be published in Spripng 2016, ideas will be set out on new business models, and independent regulators, for legal services.
The White Paper states:
2.10 According to a recent survey by YouGov, 62 per cent of adults have used a law firm or solicitor at some point in their lifetime and the cost of legal services is now considered the most important factor when searching for a legal representative. The government wants to ensure that innovative businesses are able to enter the market, providing greater choice for consumers. Alternative business models are around 15 percentage points more likely to introduce new legal
services than other types of regulated solicitors’ firms.
2.11 The government will launch a consultation by spring 2016 on removing barriers to entry for alternative business models in legal services, and on making legal service regulators independent from their representative bodies. This will create a fairer, more balanced regulatory regime for England and Wales that encourages competition, making it easier for businesses such as supermarkets and estate agents among others, to offer legal services like conveyancing, probate and litigation.
But that is not all. The policy paper promises other initiatives as well. These include:
Saving motorists money on their insurance policy
2.13 The government is determined to crack down on the fraud and claims culture. Whiplash claims cost the country £2 billion a year, an average of £90 per motor insurance policy, which is out of all proportion to any genuine injury suffered. As set out at the Spending Review and
Autumn Statement 2015, the government intends to introduce measures to end the right to cash compensation for minor whiplash injuries, and will consult on the details in the New Year. This will end the cycle in which responsible motorists pay higher premiums to cover false claims
by others. It will remove over £1 billion from the cost of providing motor insurance, and the government expects the insurance industry to pass an average saving of £40 to £50 per motor insurance policy on to consumers.
These changes are likely to have significant impact on those firms which specialise in providing legal services to the victims of road accidents.
Injecting innovation into the process of home buying
2.18 The government wants to inject innovation into the process of home buying, ensuring it is modernised and provides consumers with different – and potentially quicker, simpler and cheaper – ways to buy and sell a home. Encouraging new business models (for example, online only estate agents) is key to enhancing price competition in the real estate sector, but these have yet to penetrate the market.
2.19 In addition, emerging findings from government research suggest that consumers incur costs of around £270 million each year when their transactions fall through and they have already spent money on legal fees and surveys, and many more sales are subject to costly delays. Similar issues can affect businesses trying to buy or sell commercial property – the UK ranks 45th for registering property in the World Bank’s Doing Business index, and improving performance will help unlock additional economic growth.
2.20 The government wants to consider and address the way the real estate and conveyancing markets have developed around the existing regulatory frameworks, encourage greater innovation in the conveyancing sector and make the legal process more transparent and efficient. The government will therefore publish a call for evidence in the New Year on homebuying, exploring options to deliver better value and make the experience of buying a home more consumer-friendly.
The knock on implications for changes to conveyancing are also likely to impact significantly on law firms and conveyancers.
In addition, the Government has promised a further review of how the regulatory structure created by the Legal Services Act 2007 is operating, with a view to making it more efficient. Although nothing will happen immiediately, the legal profession faces considerable policy change which will require innovative and and imaginative reponses, which professionals need to start thinking about now.
Prediction is a hazardous business. On 30 Novermber 2015, I wrote – in relation to the Criminal Court charge –
While it is unlikely that there will be abolition so soon after introduction, my hunch is that the Government will be returning to the issue in the not too distant future.
Well I was both right and wrong: the Government has returned to the issue, but much more rapidly that most people anticipated.
Michael Gove, the Justice Secretary announced yesterday (3 Dec 2015) that the charge would be scrapped from 24 December 2015. The announcement was made to the Magistrates’ Association, a number of whose members had resigned from the magistracy over the imposition of the charge.
No doubt such a rapid change of mind will be portrayed as a U turn (though of course the initial decision to introduce the charge was taken by Gove’s predecessor Chris Grayling). But if a policy is shown to be absurd and not working, then surely it is more rational to change it rather than to doggedly adhere to it?
Anyway, at least on this occasion a rapid decision has been taken to kill off a policy was had drawn substantial criticism, not just from the magistrates but more widely from the legal world.
At the same time the Lord Chancellor has annouced to Parliament, perfectly sensibly in my view, that there should be a wider review of the different ways in which financial orders can be made against those convicted of crime – for example by fines, the victim surcharge, compensation orders, and making contribution to prosecution costs.
The Lord Chancellor would like to see a simpler and more rational structure of these different matters, which have developed over recent years in very piece meal fashion.
The Lord Chancellor’s statement is at: https://www.gov.uk/government/speeches/courts
In October 2015, a new Code of Practice for Victims was published, replacing one originally published in 2013. It sets out in some detail what victims of crime should expect from the criminal justice system. There are separate sections for adult and young victims. It also sets out the responsibilities the Code places on the key actors in the criminal justice system.
It is relevant to all stage in the criminal justice process: investigation and pre-trial; the trial itself; and post-trial.
The code summarises the entitlements as follows:
You are entitled to:
• A written acknowledgement that you have reported a crime, including the basic details of the offence;
• An enhanced service if you are a victim of serious crime, a persistently targeted victim or a vulnerable or intimidated victim;
• A needs assessment to help work out what support you need;
• Information on what to expect from the criminal justice system;
• Be referred to organisations supporting
victims of crime;
• Be informed about the police investigation, such as if a suspect is arrested and charged and any bail conditions imposed;
• Make a Victim Personal Statement (VPS) to explain how the crime affected you;
• Read your VPS aloud or have it read aloud on your behalf, subject to the views of the court, if a defendant is found guilty;
• Be informed if the suspect is to be prosecuted or not or given an out of court disposal;
• Seek a review of the police or CPS’s decision not to prosecute in accordance with the National Police Chiefs Council (NPCC) and CPS Victims’ Right to Review schemes;
Be informed of the time, date and location and outcome of any court hearings;
• Be informed if you need to give evidence in court, what to expect and discuss what help and support you might need with the Witness Care Unit;
• Arrange a court familiarisation visit and enter the court through a different entrance from the suspect and sit in a separate waiting area where possible;
• Meet the CPS advocate and ask him or her questions about the court process where circumstances permit;
• Be informed of any appeal against the offender’s conviction or sentence;
• To opt into the Victim Contact Scheme (VCS) if the offender is sentenced to 12 months or more for a specified violent or sexual offence;
• If you opt in to the VCS to:
– make a VPS for consideration by the Parole Board if the offender is considered for release or transfer and apply to the Parole Board to read it out at the hearing;
– make representations about the conditions attached to the offender’s licence on release and be informed about any licence conditions relating to you;
• Apply for compensation under the Criminal Injuries Compensation Scheme;
• Receive information about Restorative Justice and how you can take part;
• Make a complaint if you do not receive the information and services you are entitled to, and to receive a full response from the relevant service provider.
To see the whole Code, go to https://www.gov.uk/government/publications/the-code-of-practice-for-victims-of-crimeThis also gives links to a leaflet about the code and a text of a note that is given to victims.
Public expenditure review: impact on the Justice system (2): the future of personal injuries litigation
A totally unexpected announcement in the 2015 Autumn Statement relates to how personal injuries cases are to be dealt with in future. The statement says (at p 125):
3.103 Motor insurance – The government will bring forward measures to reduce the excessive costs arising from unnecessary whiplash claims, and expects average savings of £40 to £50 per motor insurance policy to be passed onto customers, including by:
••removing the right to general damages for minor soft tissue injuries (Claimants will still be entitled to claim for ‘special damages’, including treatment for any injury if required and any loss of earnings);
••removing legal costs by transferring personal injury claims of up to £5,000 to the small claims court.
This announcement has caused consternation amongst PI claimant lawyers since, by moving many more cases into the small claims track, they will not be able to claim their costs from the insurers when they win. This will result in many claimant lawyers giving up this type of work.
Two consequences seem likely to follow:
First, insurers will be able to put more pressure on claimants to settle on terms dictated by the insurers.
Second, claims management companies may well try to find ways to move in to this work.
Despite the fact that many claimants may end up with a lower level of damages than they might have done had they been represented by a lawyer, many will think that the estimated reduction in insurance premia is a price worth paying to ensure that the costs of small claims are more proportionate than they currently are.
There might, however, be another way of looking at the issue.
In Ireland, the Injuries Board – established by Act of Parliament in 2003 – can deal with all personal injury claims on line. The injured party submits details of the accident and the injury; the insurer makes an offer; and this is assessed by an independent assessor with practical experience of PI and familiar with current trends on the awards of damages by the courts.
There is no compulsion to use the system, but it is free to claimants who win their case, and the services costs much less for the insurers (though still makes an annual surplus).
An analogous scheme already operates in the UK for dealing with tenancy deposit disputes.
The full statement is downloadable at https://www.gov.uk/government/publications/spending-review-and-autumn-statement-2015-documents.
For the Irish Injuries Board, go to http://www.injuriesboard.ie/eng/