Dr Tom Smith of Plymouth University reflects on developments within the criminal defence fraternity
As the Law Gazette and Legal Futures have reported, trucking giant and legal beginner Eddie Stobart have announced their intention to bid for criminal legal aid contracts, should the Government be successful in its quest to introduce price-competitive tendering. Implied in the Stobart announcement was the necessity of killing off the ‘wounded animals’ currently undertaking legally aided criminal defence; a telling phrase from a would-be market predator.
The defence community are understandably furious but unsurprised – this has long been predicted, and the entry of corporates like Stobart, Tesco, G4S, and the Co-op is thought to be a major driver behind both PCT and QASA. It is interesting to note that Stobart have not waited until the end of the ‘Transforming Legal Aid’ consultation to show their hand. It is suggestive that they, like the Government, see the whole process as a ‘done deal’.
In contrast, the defence community appear to have strengthened their resolve, with much of the rhetoric filling blogs and social media condemning a future of Eddie Stobart legal aid lawyers. The announcement appears to have added a little more fuel to the anti-PCT and QASA fires.
From an outside perspective, the most important question is what are the pros and cons of a world in which truckers secure your bail or advise on your plea?
The company launched Stobart Barristers last year and now claims to ‘have’ approximately 1000 barristers on its ‘panel’ to deliver legal services. It should be noted that Stobart do not ’employ’ these lawyers – they are direct access barristers to whom the company can refer clients. Other companies provide similar referral services. Members of the public could in theory access these services without Stobart, should they wish to. It is not entirely clear what the Stobart ‘panel’ is exactly; there is no available detail about which direct access barristers are ‘on’ the panel, or whether this would limit their ability to provide services elsewhere. Legal Director Trevor Howarth claims that the current system of legally aided criminal defence is ‘unsustainable’ and that Stobart Barristers was created with the current proposals in mind.
1000 direct access barristers is not an insignificant number. Although Stobart do not ‘own’ these barristers, the money and resources that they can apply to funnelling clients to them does suggest that (should the barristers happily acquiesce) the company could ‘deliver’ criminal defence services on an enormous scale, in multiple regions. In contrast, the current fragmented market of hundreds of firms and chambers delivering defence services sees greater overheads, more debt and replication of the same or similar working practices which could arguably be merged.
Howarth argues that many existing firms would struggle to merge and cope with a ‘legacy of debt’ in the new market environment. Certainly, within the Government’s aggressive timescale, the fact that many would have to increase profits by around 300% suggests that the proposals are not an exercise in ‘toughening up’ – they are a cull. The argument is therefore that the market must shed the dead wood.
Stobart, and other corporate candidates yet to reveal their supposed plans, would argue that they will provide better access to justice – a branch in your local shopping centre; cheap, fixed rates; flexibility and control in deciding when to take up services and at which stage; and, of course, a brand you can ‘trust’.
The power of branding pervades all markets, even criminal defence – but at present, in a very different way. As many defence lawyers will argue, their ‘brand’ has been built on reputation, goodwill and quality service rather than a name and extensive marketing. Stobart is simply a known name – and with that comes the assumption of trustworthiness.
Furthermore, Stobart (and the Government) would argue that the ‘wounded animals’ of the current defence community are simply self-interested – unwilling to be quality accredited or to let go of a funding model that is not sustainable in a time of austerity and which shuts out competition.
So what are the contrasting arguments? The defence community essentially argues that providers like Stobart are interested in the bottom line: maximisation of profit. As such, speed and volume will be paramount, both in the recruitment of defence lawyers and the delivery services.
Tied to this is QASA, which is designed to provide a basic level of accreditation – a level the defence community argues provides no guarantee of quality. With a badge of adequate skill, Stobart can recruit lawyers of questionable ability, paid at low rates, with limited resources and even less time for investigating/preparing cases for clients.
Most controversial of all, it is argued that for a business to remain profitable (the key goal) – in a market where low fixed rates will be further undercut to secure work – volume and speed must be king. As such, Stobart lawyers will have substantial pressure to encourage speedy resolution – in effect, the more guilty pleas secured, the more money the firm makes.
The pressure on the lawyer will inevitably taint the advice and service provided to the suspect or defendant – they will in turn not be provided with the full and zealous defence they deserve, prosecutions will go unchecked and miscarriages of justice will result. Appeal rates will go up, and the cost will be borne by the public.
The defence community also argue that corporates like Stobart, with their massive financial advantage and suitable infrastructure, will monopolise the new market, restricted to certain numbers of provider per region. As such, competition will be drastically reduced and the incentive to provide quality services will disappear.
The defence community argue that they do not fear competition – the fact that the current market has so many providers tends to support this. They fear that the new playing field won’t be level, that the big corporates have all the advantages and that the defence community as it is – with its wealth of experience, expertise and professionalism – will be destroyed forever, replaced with the cheap and barely adequate.
The general tone of the argument really boils down to one of quality versus quantity – the defence community argues that it believes in quality while the corporate providers (with the Government’s backing) believe in quantity. The corporate providers would likely argue that they believe in sustainability, accessibility and a free market, whilst the defence community believe in saving their own skins.
Whether these summaries are accurate might well be disputed by both sides – which will win out remains to be seen.