Prison Law Consultation Paper - Representations Part 1
Swain & Co Solicitors Response to Questions
Q1. Do you agree with the proposal to introduce matter starts in Prison Law?
1.1 We do not agree with this proposal.
1.2 Prisoners are possibly the most marginalised and vulnerable members of society. Many have psychiatric or psychological problems when they enter prison and many develop such problems during the course of their time in prison or suffer an exacerbation of their symptoms. Any artificial limitation on the availability of Legal Aid may well have a serious effect on prisoners’ health and wellbeing together with their ability to progress within the system as the vast majority move towards eventual release.
1.3 Too many offenders with mental health difficulties are ending up in prison without access to appropriate treatment, according to the landmark report prepared by Lord Bradley.
1.4 From their first encounter with the police through to incarceration, vulnerable people’s conditions are not being identified or treated, exacerbating mental health problems and frequently leading many to reoffend, self-harm or even commit suicide, the Lord Bradley’s review concludes.
1.5 Around 70% of inmates are believed to have two or more mental health conditions. Around one in 10 has a serious mental health problem. The prison population has increased by 60% since 1995, which has, according to Bradley, increased the pressure on prisons dealing with inmates who have a mental health condition.
1.6 Any introduction of a limit on matter starts could be expected to result in injustice in the event of any increase in prison numbers. There has been a steady increase in prison numbers and the building of further prisons will no doubt result in increased prison numbers. The recession is also likely to result in an increase in prison numbers if it is accepted that there is a link between financial hardship and crime.
1.7 Similarly, changes in the law and changes in policy are likely to affect prison law cases, as would crises within the prison system. Policy changes, for example in relation to parole or recall, can reasonably be expected to increase the number of instances where advice will be required. It is also the case that in our view, many prisoners are not represented when in our opinion it would be appropriate for representation to be provided. This is, for example, the case in relation to parole where in our view greater representation would be of benefit to prisoners and to the system including the public purse. Representation could be expected to increase the number of prisoners granted parole either immediately or as a result of significant progress being achieved as a result of expert advice enhancing the prisoner’s prospect of progression through securing appropriate help whether it be in the form of courses or otherwise.
1.8 LSC figures suggest that the number of cases is increasing. There is ever increasing pressure within the prison system and the overall lack of resources is likely to result in increased advice to prisoners. With increasing numbers and congestion within the system there is likely to be increased pressure on already vulnerable prisoners, many of whom suffer from mental health or psychological problems. We believe that as a result there is likely to be the need for more legal advice.
1.9 We believe that the introduction of matter starts would create a bureaucracy and an inflexibility. We anticipate that it would be difficult to secure changes in matter starts to reflect changes in prison numbers, the law and / or policy.
1.10 We believe that the way forward is not to introduce matter starts. We believe that guidance should be given in relation to the sufficient benefit test. We believe that this could be expected to limit the number of prison law cases to at least some degree and that clarification should be given and the effect of any changes then monitored over a period.
1.11 We stress the extreme vulnerability of prisoners. They are totally in the hands of a prison system which is under resourced and not currently meeting its stated objectives or the needs of prisoners. Pressures on the system result in errors in reports, delays and so on which results in an increasing need for legal advice.
1.12 We believe that one measure of a civilised society is reflected in the way it treats its prisoners. We believe that it would be wrong to unduly restrict prisoners’ rights to seek legal advice and that the introduction of matter starts would be a retrograde step likely to result in substantial injustice.
Q 2. Do you agree with the proposals to set the number of matter starts at the volumes claimed in the 2008/9 financial year?
2.1 We do not agree with this proposal.
2.2 We have already commented on the nature and effect of an artificial limit on the number of prison law cases. LSC’s own figures suggest that volumes are increasing and the use of 2008/9 figures would mean that insufficient legal advice would necessarily be available from the introduction of matter starts at the proposed level. It should also be noted that if the number of cases is increasing, the 2008/9 figure for matter starts based on claims would inevitably be out of date. We anticipate that there would be a significant discrepancy between the volume of cases opened and the volumes of matters closed. At this stage we have no data in this connection but we consider it to be a reasonable assumption that the volume of current matters in prison law can be expected to be significantly higher than the volume of matters claimed.
2.3 We have already commented on factors which could reasonably be expected to increase the number of prison law cases. In particular, development of further prisons, the recession and problems arising as a result of congestion and lack of progress within the prison system.
2.4 We oppose the setting of matter starts generally. If, however, there is to be any limitation on matter starts we take the view that the number of starts should reflect the volume of current cases, not cases claimed. We also believe that the figures should be the subject of an uplift to reflect increasing prison numbers, the effect of the recession and the other factors referred to above. Calculations will be problematic and we anticipate that securing any change to figures at some future date would be difficult and bureaucratic.
2.5 We have evidence within the Organisation of lack of matter starts resulting in lack of specialist representation in social welfare law. We consider that it would be a disaster if there was ever to be a suggestion that the number of prison cases would be finite and could run out. It could lead to a situation where prisoners could not be represented in relation to vital issues such as parole, adjudications or the like.
2.6 We are concerned at the suggestion that numerical financial limits should be set in relation to “non standard” types of cases i.e. cases other than parole, recall, adjudications and the like. We believe that advice in relation to other matter such as sentence progression, bullying , are of huge importance to prisoners who have mental health, psychological and emotional problems. Resolution of these problems can make a huge difference to a prisoner’s life and their progression within prison. We can ensure timely intervention and support and can make a significant difference in relation to their personal development, categorisation and the like.
2.7 We are firmly of the opinion that fixing matter starts at the volumes claimed in 2008/9 will necessarily provide an artificial limit on the number of cases where legal advice is needed.
2.8 We see no basis for introducing matter starts in prison law. To do so will provide an artificial limit and could exclude very vulnerable members of society. Many prisoners are victims themselves, frequently victims of sexual, physical or emotional abuse. To deny them legal advice would in our view be inappropriate, uncivilised and potentially unlawful.
2.9 The introduction of matter starts in prison law would in our view limit the amount of legal advice available and would result in an unmet need affecting many of the most vulnerable members of society. To date the Legal Services Commission has sought in other areas to focus funding on the most vulnerable members of society. We believe that prisoners are perhaps the most vulnerable members of society and that to deny them legal advice would be wholly wrong. We believe that the very introduction of matter starts would limit the amount of advice available and would result in injustice.
2.10 Taking the question slightly wider, we take the view that if matter starts available to a firm were based on historic levels, this would mean that there was little or no potential for a firm to develop that expertise. If historic levels were used we believe that any specialist firms would currently be handling more cases than they will have billed in 2008/9. The result would be that the firms that had developed much needed expertise in prison law would then have trained staff who would be under utilised or perhaps forced to seek employment elsewhere, potentially outside the field of prison law in which they had trained and gained expertise.
2.11 We are aware of firms which in other areas of work have run out of matter starts and have been unable to secure a fresh allocation. This has resulted in frustration and disillusionment together with redundancy or retraining. The sense of frustration has not been helped by the number of matter starts being substantially changed in a subsequent year with the result that re-training has been required.
2.12 Finally, we wish to make it clear that we do not accept that prisoners are able to deal with many cases themselves, for example under the complaints procedure. Many prisoners are illiterate, have a poor grip on the English language, are inarticulate or have mental health or learning difficulties. The result is that many are unable to express themselves appropriately. The complaints procedure is complex and to be used to advantage must be used in a focused way, particularly if it is proposed to ultimately refer the matter to the Ombudsman or the Court. There are also strict time limits to comply with. We believe that the introduction of matter starts and in particular the effect of limiting the amount of legal advice available, would mean that there would likely to be a concentration on parole and other “substantial” cases to the exclusion of highly important advice in relation to disciplinary issues, abuse and the like.
Q3. Are there any other ways to contain volume increases?
3.1 Yes there are but we are strongly of the opinion that prisoners should not be denied access to specialist advice in relation to prison law. We believe that any action taken should be focussed on addressing the real reasons for volume increases in relation to prison law. We believe that these volume increases are the result of failures in the Criminal Justice System to a large extent.
3.2 Currently, prisoners need advice in relation to issues which in effect arise as a result of failures within the system. It is not the fault of prisoners that prisons are overcrowded and under resourced. The prisons are overcrowded in view of the fact that more people are being sent to prison than ever before. Funding restrictions mean that rehabilitation and sentencing progression is under resourced and on occasions is non existent. The result is frustration and, on occasions, anger on the part of prisoners.
3.3 Specialist prison law solicitors do not create volume increases in relation to prison law. They simply respond to the need for advice which is often of crucial importance to prisoners and can have a crucial effect on the well running of the prison system. It should be borne in mind that a very high percentage of prisoners have mental health, psychological and educational problems. Issues effecting prisoners are frequently very complex and prompt and effective advice can be crucial.
3.4 The sufficient benefit test would be reviewed and if this is to be the case we believe that any revision should be the subject of consultation. We consider that the sufficient benefits test should be defined and firms “educated” in relation to how the test should be applied. We believe that volume increases may be reduced to some extent by appropriate application of the criteria, particularly if applied by specialist prison lawyers rather than criminal lawyers who undertake prison law to a limited extent.
3.5 In our opinion, the most effective way to contain volume increases would be to consider reducing the number of people being sent to prison and to overhaul the prison system to reduce the causes of conflict and the like which currently result in the need for legal advice. For example, IPP sentences have been a disaster for prisoners for the simple reason that resources have not been available to allow prisoners to progress. Many have been left stranded in the system and not surprisingly have sought legal advice. There have needed to be substantial challenges to a regime which has been under resourced and hopelessly inadequate for the needs and progression of prisoners.
3.6 We believe that overcrowded prisons have resulted in a “pressure cooker” environment which has led to an increase in matter starts in prison law. We believe that if the prison service is to be under resourced, there will necessarily be a need for legal challenge in relation to the lack of resources and the wide variety of problems that stem from that.
3.7 We also believe that racism and bullying is commonplace within prisons. Prisoners are extremely vulnerable and their vulnerability is on occasions exploited by prison officers and prison staff. This is happening within an already over stretched and under resourced system.
3.8 We believe the current complaint system to be ineffective and inappropriate. Many prisoners have educational and / or medical problems and find it difficult if not impossible to properly pursue the system to its logical conclusion which might be a referral to the Ombudsman or an application for judicial review. It is agreed that the system should be overhauled completely.
3.9 We are particularly concerned that “deniers” have huge difficulty progressing within the system based on reliance on SOTP courses and the like which deniers are not able to undertake. The result is that “deniers” who maintain their innocence throughout, have little alternative other than to seek legal advice in relation to their predicament.
3.10 In the absence of significant improvements to the criminal justice and prison systems, we take the view that it should be accepted that volume increases are inevitable. We believe that changes within the system would contain volume increases.
3.11 We believe that no artificial limit should be placed on the number of cases but that prison law should be confined to specialist prison lawyers (see below) and that the legal aid criteria should be applied.
3.12 Funding of prison law cases should be seen as inextricably linked with consequences of the existing sentencing regimes and practice which have resulted in overcrowding and IPP sentences. The need to fund legal advice in these circumstances is in our view essential. We consider that any artificial attempt to limit volume increases would be grossly unfair to prisoners. We suggest that consideration be given to seeking to redirect other government funding towards legal aid for prison law cases bearing in mind what we consider to be a clear link between volume increases, sentencing policy and an overall lack of resources within the prison system.
Q4. Do you agree with the proposals for amending the sufficient benefit test as described?
4.1 We believe that there is no great need to amend the sufficient benefit test as described. We do, however, believe that any test should be properly applied and detailed guidance provided. Individual practitioners could then consider the guidance before taking on cases and, in appropriate cases, could document on the file the reason why a particular case was being undertaken or undertaken in a particular way.
4.2 We would be strongly opposed to any proposal which involved a monetary benefit as a criteria for undertaking cases. We also believe that a criteria relating to prospects of success could be difficult in the context of prison law cases where there may be a benefit in terms of prison progression but perhaps no prospect of an immediate remedy. It should be noted that prisoners are frequently very angry and frustrated. Timely advice can reduce or eliminate conflict within the system. It can result in the avoidance of misunderstandings and more serious consequences such as adjudications. The ability of a prisoner to progress in the system can be influenced very substantially by timely advice which allows the prisoner to understand the system, know his or her rights and as a result be able to function within the regime despite any mental health or other issues.
Q5. Are there types of cases that should be within scope and cases that should be out of scope?
5.1 We believe that the current sufficient benefit test should be adequate if correctly applied. We also believe that all matters should be in scope provided that they concern matters of English law.
5.2 We consider that appropriate application of the sufficient benefit test should reduce the number of matter starts to some degree.
5.3 At a consultation meeting reference was made to how matter starts might be reduced by withdrawing legal aid from dealing with issues of complaints. We are totally opposed to the introduction of any such restriction. The complaints system is inadequate if not followed properly and is likely to result in injustice. There are strict time limits which are relevant to complaints being pursued to the Ombudsman and/or to judicial review. Timely advice can make a huge difference in relation to a prisoner’s rights. We believe that withdrawal of legal aid in relation to complaints would be counter productive and wholly wrong. This is particularly the case bearing in mind the fact that many prisoners suffer from mental health, psychological or educational problems. Many prisoners also have language difficulties.
5.4 In short, we believe that no types of cases should specifically be excluded from scope. We consider that the way forward is the correct application of the sufficient benefits test.
5.5 Again, at a training event, reference was made to how cases involving perhaps a few hundred pounds should not be the subject of legal aid funding. We wholly oppose the introduction of any financial limit of this kind on the basis that it would be arbitrary but more importantly we consider it important that prisoners should be able to achieve justice, particularly bearing in mind the value of money to prisoners. For example, a claim involving £250 is to a prisoner a claim which equates to 1-2 years earnings. In our experience prisons are unable or unwilling to resolve cases of this kind in a fair and effective manner.
Q6. What is your view of the current payment scheme for prison law? Please comment.
6.1 A summary of our views are as follows:
- The rates of payment are inadequate.
- There could and should be a procedure for making application for payments on account of costs.
- There could and should be a procedure for making application for payments on account of disbursements.
- The rates should be increased to reflect the complexity and demanding nature of this work.
6.2 The rates of payment have not increased for many years and in our view are wholly inadequate. The rates have not increased since about 2001 and this has had a profound effect on profitability and motivation amongst practitioners who feel under valued and /or are under ever increasing financial and other pressures.
6.3 The failure to provide payments on account of costs and /or disbursements is highly problematic and creates major cash flow problems for firms. The situation is not helped by the current economic crisis which has resulted in third parties being less and less reluctant to accept any delay in payment of disbursements. Prison law firms are expected to carry significant amounts of work in progress and disbursements.
6.4 There seems to be a current obsession within LSC in relation to the cost of travel. It is inevitable that firms will incur some costs in relation to travel bearing in mind the fact that prisons are frequently located in remote areas with the result that travel is inevitable. It should be noted that the rate of payment for travel is exceedingly low and practitioners have every incentive to avoid travel whenever possible. Firms also have every incentive to avoid incurring waiting time which is also poorly paid. There is, however, little if anything that practitioners can do if access to a prison is delayed.
6.5 We have made very considerable use of video link facilities but appointments by video link are not always appropriate, particularly for cases where it is necessary to look very closely at a wide range of documentation. There are also cases when personal contact makes it much easier to take instructions. This is particularly the case in complex or delicate matters and cases where prisoners have mental health problems or other difficulties with communication.
6.6 It is also the case that prisoners are frequently moved between prisons. We believe that it makes sense for firms to continue to act for prisoners if they move within the system. It frequently means that the practitioner concerned knows the background to the matter and does not need to reinvestigate matters in detail.
6.7 We operate a national service and as such we are to some extent able to reduce travel costs. We have offices on the south coast and also in London and Liverpool.
6.8 We believe that there is a very strong case for maintaining the current payment scheme, increasing the hourly rates and introducing a system for payments on account of costs and disbursements. The current system works in the sense that practitioners are familiar with the system and the cost of undertaking prison law is relatively easy to calculate. The ability to make a profit is marginal and we have serious concerns about the introduction of any other scheme, particularly a scheme based on fixed fees.
6.9 We are particularly concerned at talk of fixed fees being introduced with a view to reducing the legal aid budget. The implication is that less money would be available and that the hourly rate would in effect be reduced. Were this to be the case we believe that there would be disastrous consequences for specialist practitioners in an area where profit margins are already slim and on occasions non existent.
Q7. Could costs be better controlled?
7.1 Yes. We believe that costs could be better controlled with an hourly rate payment scheme.
7.2 We believe that the introduction of any change in relation to costs would be problematic for practitioners. Prison law cases are extremely diverse and vary massively in terms of complexity and seriousness or importance for prisoners.
7.3 Prison is a rapidly developing area of work which requires particular expertise. Currently we suspect that most if not all practitioners would find it difficult if not impossible to undertake calculations in relation to profitability based on the new fee regime. Many firms are relatively small and do not have in house accountancy support or sophisticated software which would make computation of fixed fees an easy task. We suspect that fixing fees would be a “stab in the dark” for both practitioners and the LSC.
7.4 Currently, a substantial amount of prison law work is undertaken by non specialist practitioners. We take the view that it would be prudent to introduce an accreditation scheme and to assess the effect of the introduction of such a scheme in relation to costs. We believe that specialist practitioners would ultimately provide a better service and there would be a saving in relation to costs.
7.5 We believe that the Legal Services Commission could and should put pressure on other Bodies to improve efficiency on the basis that Legal Aid costs would then be saved. In effect we believe that inefficiencies within other Bodies cost the Legal Services Commission substantial amounts of money.
7.6 We believe that costs could best be controlled by making changes within the Criminal Justice System by changing sentencing practice and by ensuring that the prison system can cope with the types of sentences being imposed and thereby avoiding the sort of problems associated with IPP sentences.
Q8. Do you agree with the proposal to introduce standard fees in prison law?
8.1 We do not agree to the introduction of standard fees.
8.2 We believe that prison law should be undertaken by appropriate specialists. We believe that this would promote efficiency and cost effectiveness.
8.3 The existing system is familiar to all and it does not seem unreasonable to be paid for what work you do.
8.4 The introduction of fixed fees in civil work has in our experience driven practitioners out of some areas of law and has also resulted in cherry picking of cases. We believe that this would be inappropriate in the complex and sensitive area of prison law.
8.5 We are also concerned that in civil law practitioners have to bill the case as a fixed fee matter and yet provide a detailed breakdown of the costs involved. The billing procedure is time consuming and extremely irritating. There is no benefit to the practitioner by way of simplicity in relation to fixed fees.
8.6 We believe that fixed fees at the sort of rates suggested are unworkable and inadequate.
8.7 We do not consider that there is a “mature market” in relation to prison law. There have been substantial increases in the amount of work for the reasons given previously. It would be a major change if non specialist practitioners are excluded from this area of work. We anticipate that it would then take several years for the market for prison law to settle down. We anticipate that there would be significant savings by the use of specialist practitioners. We also believe that changes in sentencing practice, particularly in relation to IPP sentences, will impact on the need for advice generally.
8.8 If the recession is relatively short lived, we believe that this will be likely to result in a reduction in the number of prisoners with a consequent reduction in the volume of cases.
8.9 Travel should be paid separately. Visits are only made when necessary as are costs.
Q9. Do you agree with the levels of payment in the proposed standard fees?
9.1 No. We consider the levels to be inadequate.
Q10. What is your view of prior authorisation for disbursements?
10.1 We believe that prior authority for disbursements is not required. We believe that this would introduce another level of bureaucracy. No such authorisation is required in relation to civil cases.
10.2 We believe that there will be an increase in costs for practitioners and for the LSC if authorisation was required for disbursements.
10.3 We believe that in the foreseeable future the existing payments regime should be maintained. On this basis there is in effect authorisation for disbursements in the form of a request for extensions on CDS5.
10.4 We believe that seeking prior authorisation for disbursements would be time consuming and could result in unnecessary delays.
10.5 We would be prepared to support prior authorisation of disbursements if this was the only means by which payments on account of disbursements could be forthcoming.
Q11. Do you agree with the proposal to introduce fixed fees in advice and assistance and disciplinary hearings but retain a standard fee for parole hearings?
11.1 We are opposed to fixed fees and / or standard fees.
11.2 We believe that the current system should be maintained for the foreseeable future. We believe that the existing system has the advantage of familiarity and, save the rates involved, fairness and transparency.
11.3 We believe that the existing regime allows fees to vary in accordance with the time spent. If the work is undertaken by specialists, we expect there to be a clear link between the time spent and the complexity of the case.
11.4 We believe that the calculation of any escape to a fixed fee is problematic and could easily result in substantial unfairness, particularly in an area of work where profitability is highly marginal.
11.5 We believe that the proposed fixed fee levels are unsustainable. We do not believe that this firm’s costs are excessive or that there is any opportunity within the current payment regime for profiteering.
Q12. Are there any alternative fees to standard or fixed fees that could be introduced that would have the same effect of controlling case cost?
12.1 We believe that the LSC should:
- Maintain the current payment system.
- Increase the hourly rate to a sustainable level.
- Press for efficiencies within the prison and criminal justice systems. (See above).
- Introduce supervisor standards.
- Clarify the sufficient benefit test.
- Press for a sentencing regime which avoids the sort of issues which arose as a result of IPPs.
- Press for more video facilities in prisons.
- Press to ensure that prison staff make video facilities available.
- Press Courts to ensure that restrictions are not placed on the use of video link facilities.
- Accept that rising prison numbers and changes in the criminal justice system are connected with cost increases.
Q13. Do you agree with the idea to introduce supervisor standards to prison law work and, in particular, the proposed supervisor standard of 350 hours?
13.1 We support the introduction of supervisor standards to prison law.
13.2 As a minimum we believe that there should be the proposed supervisor standard of 350 hours.
13.3 The Commission’s consultation paper refers to 966 firms carrying out prison law work in2007/8 with only 145 of these meeting the proposed supervisor standard. We anticipate that in excess of 200 firms would apply for a contract to provide prison law work but have concerns that a number of those firms would barely meet the standard or would in fact fail to meet it.
13.4 We believe that if the remuneration rates are right and by right we mean increased from the current level, we as a firm would be able to train additional staff and to undertake further work. We have specialist teams and provide a nationwide service. We support the standard proposed but see this as a minimum standard should be supplemented by CPD points.
13.5 We are also of the opinion that there is a very substantial advantage to prisoners if firms are able to provide advice in related areas such as mental health, community care and health law generally. On several occasions within this response we have sought to stress the fact that prisoners need advice in these problem areas as well advice in relation to pure prison law issues such as parole.
13.6 We believe that suitable standards should be introduced and that other changes should be put on hold pending full introduction of such a scheme and a subsequent evaluation.
Q14. Are there any additional quality standards that could be introduced to maintain quality of provision for prison law services to clients?
14.1 Please see above.
14.2 We are in favour of accreditation and see the 350 hours as a minimum requirement.
14.3 We believe that it would be difficult to introduce some kind of panel membership at this stage. We believe that the proposed supervisor standard plus requirements in relation to CPD should suffice for the foreseeable future.
Q15. Do you agree that the introduction of different methods of delivery could improve efficiency and manage costs effectively?
15.1 We believe that the introduction of specialist providers will improve efficiency and assist in controlling costs. We stress, however, our view that external factors are the most significant factors in relation to cost increases.
15.2 We believe that there is no real substitute for specialist knowledge and experience in prison law.
15.3 We have concerns about different methods of delivery such as telephone services and the like. We believe that this could be problematic bearing in mind the complexity of the subject. Prisoners are frequently inarticulate and it is difficult to advise without knowing the background to a case, on occasions without having access to documentation.
15.4 We believe that significant and important relationships are built up between specialist prison lawyers and their clients. This can make it easier to take instructions and to provide meaningful advice which is acted on. It would also have the important effect of managing expectations. This is particularly significant in the regime which is under resourced and can result in major frustrations for clients.
15.5 We have concerns that the introduction of any sort of Duty Solicitor Scheme could duplicate work. Issues are rarely straightforward and we think it highly likely that advice will be given by a Duty Solicitor and then further advice sought by the solicitor who has perhaps acted for the prisoner over a lengthy period.
15.6 We are in favour of making use of video conferencing facilities where possible and whenever possible we take instructions by telephone. We also ask clients to provide information by letter or in response to questionnaires.
15.7 We are strong believers in providing training to our prison law team and this training means that our lawyers are able to assess cases more rapidly than would otherwise be the case. We avoid duplication of research and so on by circulating information about case law and other developments.
15.8 We believe that it would be in the interests of the Legal Services Commission to provide grants to specialist firms to allow them to meet the cost of video conferencing facilities.
15.9 Overall we believe that the existing system works well enough. We believe that the rates of pay are wholly inadequate and should be increased. We believe that there will be a saving by the introduction of specialist supervisors and in particular as a result of eliminating firms which “dabble” in prison law. We believe that if left unchecked, more criminal firms will seek to provide advice in prison law cases as a means of trying to cope with the costs constraints which apply in criminal cases.
Q16. What are your views of the suitability of telephone advice services for certain advice and assistance matters?
16. We encourage our solicitors to provide telephone advice wherever possible and see no great point in providing specific telephone advice services. We start with the presumption that we will advise by telephone wherever possible. If this is not possible we seek instructions by letter or by questionnaire. In appropriate cases we take instructions by way of video conferencing or face to face. We see the taking of instructions face to face as being crucial in a minority of cases. This is particularly the case where prisoners have mental health problems or learning difficulties. It can also be crucial where there are numerous documents to refer to or face to face advice is considered to be crucial in establishing and maintaining an appropriate level of communication in a complex or particularly delicate case.
16.2 We consider it to be a myth that firms run up costs unnecessarily e.g. by making unnecessary visits. Visits are time consuming and demanding. Visits take the fee earner out of the office and in simple terms the payment made for travel and waiting is minimal and for practical purposes unprofitable. We will visit when we consider a visit to be necessary but not otherwise.
Q17. What are your views of the suitability of a duty solicitor scheme for cases requiring attendance at the prison?
17.1 We oppose the introduction of a duty solicitor scheme.
17.2 There are many cases which do not require attendance at the prison and as such these cases can perfectly well be dealt with by telephone or by letter.
17.3 We believe that the introduction of a duty solicitor scheme would introduce a level of bureaucracy and cost which is not required. Presumably there would need to be an accreditation scheme and all sorts of other formalities.
17.4 We consider that prisoners do have access to legal advice and that the major threat to this accessibility will be any limitation in matter starts.
17.5 We fear that the introduction of a duty solicitor scheme would result in duplication with advice being sought from a duty solicitor and the prisoner then seeking to revert to the existing solicitor for representation or further advice.
17.6 We suspect that it would be very rare that telephone advice from a duty solicitor would resolve the issue. We suspect that in the vast majority of cases further action would be required. We believe that the vast majority of prisoners would then seek to revert to a solicitor who had acted for them before and who was familiar with their background. Background information is often crucial to the ability to give meaningful advice.
17.7 We believe that it would be counter productive and costly to introduce a system which deliberately or otherwise encouraged a prisoner to seek advice from a duty solicitor rather their existing solicitor.
17.8 We believe that the duty solicitor scheme in the Magistrates Court and police station is very different. There are clear issues which need to be dealt with on the day or on the spot with a view to facilitating a police interview or the resolution or immediate step in relation to a criminal case. In prison law cases it is frequently the case that investigations need to be undertaken and instructions frequently can be taken by telephone with a view to investigations then being commenced. There would be no need for travel, waiting or other such costs. There would no doubt be a saving in form filling and other bureaucracy.
Q18. What are your views of the suitability of tendering or block contracting for all prison law cases?
18.1 We oppose tendering or block contracting for all prison law cases. We believe that prisoners should have the right to choose their solicitor subject to the firm meeting LSC requirements including, we suggest, accreditation. Availability of choice does not in our view impact on costs and hopefully ensures the availability of a supply of suitably qualified practitioners. It also means that if a prisoner moves from one prison to another, as is inevitably the case, that prisoner will still be able to use his or her existing solicitor.
18.2 We would totally oppose any suggestion that there should be tendering by price. The current level of payment is already so low that profitability is marginal. There will be a real danger that standards would be reduced to an unacceptable level.
18.3 We do not consider that block contracting for all prison law cases would be appropriate. Prison law cases are complex and frequently there is a need for specialists in related areas such as mental health, community care, public law and so on.
18.4 We do not believe that the number of prison law cases should be restricted. We believe that to do so would leave prisoners without much needed advice. Prisoners are probably the most marginalised and vulnerable members of society. They have been sent to prison as punishment and not to be punished. We believe that proper standards of advice must be maintained and it is with this in mind that we maintain that a system of accreditation and supervisor standard is required.
18.5 We believe that the rates of payment for prison law should be revised upwards. This would reflect the greater standard of specialisation which we propose. We believe that specialisation would increase effectiveness and would control costs.
Q19. Do you think any of these proposals would make a good prison law funding policy? If so, which option and what changes could be made to improve it?
19.1 We do not consider any of the proposals to be appropriate or viable at this time.
19.2 Duty solicitor: we do not consider this to be appropriate or cost effective. See above.
19.3 Block contracting: we consider that this would have the effect of reducing rather than improving the quality of services and as a result would be counter productive in relation to efforts to reduce costs.
19.4 Telephone advice: we consider this to be problematic and expensive. There are security and confidentiality issues which we consider would need to be explored in very considerable detail.
19.5 In short we believe that prisoners are able to contact specialist prison lawyers by telephone. We believe that all firms should be required to adhere to sufficient benefit criteria and that this in itself would result in savings in costs.
Q20. Do you have any other views about prison law funding or options you would like us to consider?
20.1 Prison law is a rapidly developing area of law which is very complex and demanding. The law is very fast moving and the prison regime is inflexible, underfunded and in our experience, largely unresponsive to many of the needs of prisoners.
20.2 We believe that the expertise of prison lawyers should be more widely recognised and rewarded.
20.3 We believe that LSC needs to undertake further research in relation to prison law work before it has a proper understanding of advice which is required and in what circumstances. We also believe that more detailed analysis needs to be undertaken before we or LSC could be satisfied that any change to the existing funding scheme could be expected to continue to provide the necessary amount of specialist advice.
20.4 Prisoners are subjected to a regime which is such that those who enter the prison system without mental health problems have a high chance of developing such problems during the course of their imprisonment. The pressure on prisoners is massive. Many suffer from serious disorders including personality disorders. Taking instructions and advising prisoners can frequently be problematic and extremely demanding. We believe that the efforts which prison lawyers go to are frequently underestimated by the Legal Services Commission and others who have no first hand experience of dealing with prisoners or prison law. Prisoners frequently feel desperately isolated and there is a need for informed and practical advice. We have stressed elsewhere in these representations the fact that in our view prison law is only marginally profitable. There is a very real danger that the best specialist advisors will be the ones to suffer most from changes to legal aid arrangements.
20.5 We believe criminal law to be very different to prison law. Prison law covers all aspects of a prisoner’s life within the prison regime. As such we submit that there would be very real difficulties in trying to adopt a “one size fits all” policy or costs regime.
Q21. Do you agree with the assessment of impact outlined in annex 6? Do you have any evidence of impacts that we have not yet considered?
21.1 We believe that the focus of the LSC assessment has been to look at how to cut costs. We do not believe that sufficient consideration has been given to understanding why costs have increased in relation to prison law. In particular the impact of IPP sentencing, greater take up of representation in relation to parole hearings and other matters do not appear to have been considered in sufficient detail.
21.2 Insufficient consideration appears to have been given to the effect of introducing accreditation / supervisor standards with the potential to reduce costs and at the same time improve standards of work.
21.3 We believe that sentencing policy and pressures within the prison regime are the main drivers in relation to the increasing costs.
21.4 We believe that there needs to be a better understanding in relation to increases in volume and cost. We believe that increases in cost are as a direct result of sentencing policy and other such matters. We believe that the issue should be widened to include consideration of how the legal aid prison law budget is effected by sentencing policy, increasing prison numbers and financial pressures within the prison system.
21.5 We do not support a national fee for prison law work. We have offices in London and elsewhere. Accommodation and other costs are higher in London. Salaries are higher as a consequence and if firms are to maintain an expert and effective prison law department in London, in our view there needs to be some uplift in relation to London fees.
Q22. Do you have any additional comments on the Consultation?
22.1 Please consider the following additional points:
- We believe that prisoners should have been consulted formally in relation to the proposals. These proposals are likely to have a very considerable effect on prisoners and we believe that prisoners should have had the opportunity to provide input in relation to what, if any, changes should be made.
- We believe that the current rates for prison law are unacceptably low and do not reflect the specialist and demanding nature of the work undertaken.
- We oppose the introduction of matter starts and we have our own bitter experience of having to cope with matter starts running out in social welfare law despite the fact that there was not alternative provision in our geographical area.
- The introduction of matter starts based on historic data fails to take into account the massive investment made by this firm in relation to prison law by taking on considerably more matters than previously and any limit on matter numbers, let alone an artificial limit based on historic figures, would be likely to mean restrictions on the ability of our experienced staff to taken on cases. At worst , redundancy would follow. When we ran out of matter starts on social welfare law we resorted to retraining only to find that at the end of the retraining exercise we were encouraged to take an increased number of matter starts in the next financial year. The result for us was massive costs, disruption and disillusionment.
- We believe that no change should be made to the costs regime before LSC has had an opportunity to see accreditation / supervisor standards in place and an impact assessment carried out.
- Limited financial information has been disclosed. We are concerned that requests by the Association of Prison Lawyers for more information and further time to consider the proposals, was refused.
- Some prison visits are inevitable. They are often lengthy and in our view should be paid for as currently.
- Finally, we stress the fact that many prisoners desperately need legal help which they are unable to access for various reasons including literacy, educational problems and so on. They are invariably denied access to computers and the use of telephones is restricted. Timely and appropriate advice can make a huge difference to a prisoner’s wellbeing and progression within the prison system. We believe that there is an increasing need for advice and assistance as a result of changes to the sentencing regime and the fact that the prison system is under resourced, unresponsive and is for most prisoners an intimidating and threatening regime.
Swain & Co
5 May 2009