Managing Criminal Legal Aid

Mr Kieran Donnelly, the Comptroller and Auditor General, today issued his report to the Assembly on Managing Criminal Legal Aid in Northern Ireland.

Mr Donnelly said: “Since 2003 the Northern Ireland Legal Services Commission has spent £340 million on criminal legal aid. With such sums of money involved, it is important that the current framework for managing criminal legal aid ensures value for money for the taxpayer and proper accountability. At present, that is not the case. Considerable scope remains to improve efficiency, and achieve cost savings, but progress will depend on the Department of Justice, Court Service, the Commission and professional bodies working together to achieve this”.

Background

Northern Ireland spends more per head on criminal legal aid than any other comparable jurisdiction. Criminal legal aid is available to anyone accused of a crime where a judge determines that it is in the interests of justice for legal aid to be granted and where the judge concludes that the accused person does not have sufficient means to pay for their own defence. In 2009-10, some 98% of applications were successful. Until recently, expenditure was rising every year, with costs almost trebling over the last decade from £22 million in 2000-10 to £60 million in 2009-10, before falling back to £51 million in 2010-11. This rapid growth in expenditure has not been matched by a proportionate increase in the number of criminal legal aid cases.

On the rise in costs

• Between 2000 and 2009, more than half the criminal legal aid payments in respect of cases heard in the Magistrates Court included an uplift to the prescribed standard fee. Uplifted payments averaged around three times that of those paid at the standard rate.
• If fee-earners are dissatisfied with the uplifted payment, they can challenge the Commission in an attempt to have fees increased further. An additional £10 million has been paid to the legal profession since 2003 in respect of non-standard cases heard in the Crown Courts.
• There is a huge disparity between the assignment of two counsel in Northern Ireland (55% of indictable cases) and the practice in England and Wales (5% of indictable cases). Clearly legal costs increase with additional representation.

On Very High Cost Cases (VHCCs)

• VHCCs, defined as those cases where the trial is likely to last in excess of 25 days, attract higher rates of remuneration for preparatory work and higher fees. They were introduced in 2005 to control costs but appear to be doing the opposite. Since their introduction, they have accounted for 22% of the criminal legal aid budget.
• Only 11% of VHCCs have proceeded to trial lasting more than 25 days. The Commission has no statutory powers to remove VHCC classification or reduce the fees payable if a case does not go to trial or last in excess of 25 days.
• Based on a sample of cases, comparing the amounts paid at the higher VHCC rates and those payable under the ‘standard’ fee regime, we estimate that up to £23 million may have been paid since 2005 in respect of cases which failed to go to trial lasting more than 25 days.
• A high percentage of appeals against the level of VHCC fees were successful, resulting in payments increasing from £4.5 million to £7 million. Following the introduction of new rules in October 2009, Court Service has intervened and 28 out of 41 claims for increased fees have been withdrawn by the legal profession. This is a progressive step which should help reduce costs.
• New Rules, introduced by Court Service with effect from 13 April 2011, have reduced the fees payable to defence lawyers in Crown Court cases. However, they remain overall, more generous than those which apply in England and Wales and Scotland. Cases certified prior to this date will continue to be assessed under the old Rules.

On the Commission’s budgetary control system

• Every year since the Commission was established in 2003, its budget has been exceeded, requiring almost £150 million in additional funding.
• There is enormous potential for improvement to the budgetary control arrangements and resolving the current shortcomings should be a matter of priority.
• The Commission is expected to generate efficiency savings of almost £30 million by 2013-14, of which £18 million is expected to be generated by the new remuneration Rules which came into operation in April 2011. However, even if these projected savings are achieved, forecast expenditure remains in excess of the budget.

On achieving value for money

• The Commission was expected to implement a programme of reform by autumn 2007 which was intended to lead to tangible cost savings, The reform programme is behind schedule and the target date for full implementation is now March 2014.
• The Commission told us that there is no statutory requirement or basis for it to assess the quality of criminal legal services funded by legal aid. However, in common with all publicly-funded bodies, the Commission must use its resources efficiently, economically and effectively in order to obtain good value for money.
• Members of the legal profession have been involved in the process for agreeing the fees payable for the delivery of criminal legal aid services, which has created an inherent conflict of interest.

Key Recommendations

• New procedures and tighter criteria for assigning two counsel need to be introduced as a matter of priority.
• The Commission must take immediate steps to review the information it relies upon to forecast and monitor expenditure, ensuring that it is comprehensive, accurate and up-to-date.
• The Commission must assess the quality and value for money of the criminal legal aid services funded from the public purse.
• The Commission and Court Service must review their governance arrangements on a regular basis to ensure conflicts of interest are minimised and managed effectively.