Risk and release

Daniel Sonnex, who had been released on parole licence after a conviction for a violent robbery, killed two French students last year after torturing them to obtain their pin numbers. The case illustrated the tragic consequences of failures in the system to monitor and assess an offender when s/he has been released. How, though, does the criminal justice system assess the risk of prisoners convicted of serious crimes reoffending if released? This was the question the lawyers, psychiatrists and psychologists grappled with at last week's Association of Prison Lawyers conference.

All agreed that the psychological testing methods developed for identifying whether a prisoner is likely to reoffend if released could never be guaranteed. What the psychiatrists and psychologists did seem reasonably confident about was their success in identifying risk factors that made reoffending more likely in certain groups of prisoners. For sex offenders these included the number of previous sexual convictions, age and whether they had never had an intimate relationship. Actuarial calculations can be made from such factors and these can be extrapolated to a group, but they cannot be used directly to predict an individual's behaviour.

Polygraph or lie detectors are being trialled to assess the truth of an offender’s assertions regarding his/her rehabilitation, but opinion on the reliability of these seemed mixed among the experts at the conference. Psychological tests remain the main tool for assessing individual prisoners’ rehabilitation. Factors such as personality, attitudes and emotional control are assessed. The tests need to be applied correctly and are dependent on well-trained and qualified people to do this.

A question submitted in writing from a prisoner asked why he was always seen by a trainee when he was undergoing a psychological assessment. All the participants on the panel the question was put to agreed that there is a shortage of fully qualified forensic psychologists who carry out the assessments in prisons. Opinion was divided, though, on whether the trainees who are widely used are competent to undertake the work. The representative from the Ministry of Justice argued that most trainees do have the experience and skills to do this work, with their trainee status being attributable to changes in qualification requirements. The independent experts were less convinced and one argued that many were not sufficiently skilled and that 'their supervision was sporadic'.

A sceptical lawyer in the audience questioned if the methods used to assess prisoners’ likelihood of reoffending were too subjective. Another lawyer argued that one client had had two results in a test - one finding a medium risk and one finding a high risk. In reply the psychologists said that as long as the tests were applied correctly they were reliable and that the tests and clinical assessments still allowed room for professional judgments. Other than never releasing any prisoner convicted of a serious crime there seems little alternative to the current system, but the system needs to be properly resourced to optimise the chances of reaching the correct decisions, as the consequences of not doing so can be tragic.

See LAG's new book: Prisoners: law and practice by Simon Creighton and Hamish Arnott.

Employment law

LAG published the eighth edition of Employment law: an adviser's handbook by Tamara Lewis last week. The book is a comprehensive guide to employment law and it deals with recent changes in the law such as the definition of an employee, developing case-law on equal pay and the repeal of the short-lived statutory dispute resolution procedures introduced by the current government.

Over the years, organisations from both sides of industry have usually reacted to legislative changes in employment law introduced by governments with either condemnation or praise depending on how they perceive the changes will impact on their interests. Especially in the early days of the current government, Tony Blair’s 'third way' philosophy purported to break away from the old certainties of the class-based politics which employment law reflected.

The Employment Act 2002 was the vehicle supposed to bring about a New Labour nirvana in the world of employment relations, free from class and other vested interests. The Act tried to appease the interests of employers continually peeved at the ever-spiralling number of Employment Tribunal (ET) claims by introducing statutory minimum disputes and disciplinary procedures that had to be followed in the workplace. The aim of the procedures was to reduce ET claims and, most importantly, keep employees in work by resolving disputes while they were still in employment. The procedures became mired in legal controversy though as employers focused on getting the procedure right rather than on their original aim of resolving disputes.

ET numbers are again rising due to the impact of the recession. The most disturbing statistic for ET claims has remained constant over the years, less than one in 20 applicants who are dismissed return to their job. The repealed procedures were flawed, but early advice and representation for employees remains the most effective way of avoiding injustice and keeping people in employment. Tamara Lewis’s book will continue to play an important part in equipping advisers to do this.

Criminal delay

On 11 September, the Legal Services Commission (LSC) announced that it will defer the start of tenders for the new criminal contract for at least two months. Included in this is the best value tendering process for the two pilot areas in Greater Manchester and Avon and Somerset. Good move we say. However, the Ministry of Justice (MoJ) announced its consultation on the proposed cuts for criminal work on 20 August. Why then did it take the LSC three weeks to decide to delay the bidding process?

Surely it had worked out that you cannot invite firms to bid for work if they don’t know how much they will be paid? Perhaps not. It seems more likely that LAG, the Law Society and others pointing out to the LSC the unfairness of what it was proposing, combined with mutterings about a possible judicial review, made it change its mind. Any strategy the MoJ and LSC had for criminal legal aid appears to be in tatters.

The MoJ’s paper on the proposed cuts is inadequate. It fails to state how much it is seeking to save or outline in detail the Crown Prosecution Service fees it is arguing that defence counsel should have parity with. The government also wants to shave five per cent off the budget for very high cost criminal cases (VHCC), but the options to do this have not been announced yet. They will only be outlined in a further consultation paper. A cross-subsidy operates between Crown Court work, VHCCs and the less profitable police station and magistrates' court work. Surely it should be obvious to the LSC that without all the proposed prices on the table firms cannot make any decisions about their future bids?

No time to pull your punches!

Citizens Advice published a report in July, No time to retire – legal aid at 60, which warns that more people are being denied access to civil legal aid despite a huge increase in demand fuelled by the recession. It argues that fewer people are getting civil legal aid due to barriers such as patchy geographical provision, long waiting times and complex qualifying criteria.

Two surveys carried out by Citizens Advice Bureaux (CAB) in 2008 and 2009 discovered that CAB across England and Wales regularly find it almost impossible to locate a Community Legal Service (CLS) lawyer for court and tribunal proceedings, or a legal aid lawyer to deal with specialist issues. Seventy-six per cent of CAB had problems finding a CLS lawyer to deal with urgent employment cases, while 75 per cent could not find a CLS lawyer to deal with urgent housing matters, and 68 per cent said they had problems finding a CLS lawyer to take on urgent family cases.

These are damning statistics and they confirm what LAG, legal aid providers and other commentators are saying about the availability of legal aid, but the report has received little coverage in the media. This is a great shame because it also challenges the commonly-held view in government circles that voters are not concerned about legal aid. Independent research commissioned by Citizens Advice for the report showed great public support for legal aid. Two thousand people were questioned in March this year - 92 per cent thought it was either very important (68 per cent) or quite important (24 per cent) for people on low incomes to get legal aid for problems such as debt, benefits, family law, housing and employment. LAG would argue that a similar opinion poll needs to be conducted on criminal legal aid to gauge public support for legal aid and its importance in ensuring a fair trial for people accused of a crime.

Hopefully, the support for civil legal aid reflected in the survey results and the concerns expressed in the report will be given greater prominence in the run-up to the general election. A higher profile for legal aid in the election campaign is needed to head-off any belief that legal aid is a 'soft option' for cuts and, most importantly, to convince the public that their money is being wisely spent on providing access to justice.

Criminal legal aid to be slashed

LAG has been aware for some time that a crisis is looming next year with the legal aid budget. While off the record officials were telling us that the budget was looking distinctly dodgy, they were being tight-lipped about the possible options for cuts. One thing was clear though, some had been too optimistic about the savings they could make from putting police station work out to tender. When it became clear that savings from best value tendering (BVT) would be negligible, especially in the first year, a plan 'B' was needed. The consultation paper published today (Legal aid: funding reforms, 20 August 2009) is it. What the Ministry of Justice is proposing is:

- an up to 23 per cent cut in advocacy fees in the Crown Court;
- a flat fee for all police station work ending the different fee structure in different areas;
- an end to the duplication of fees for committals before trial; and
- a cut in the costs of expert reports.

In a significant move the government has recognised the importance of maintaining the social welfare law budget. As we all know in these hard economic times many people are facing problems with housing, debt, employment and benefits. Timely advice can make a big difference to their lives and it is commendable that the government has recognised this.

LAG believes that some savings can be made in Crown Court fees. An elite group of barristers earn enormous sums from legal aid. A balance has to be struck, though, between reducing costs and retaining good quality advocates in the system as equality before the law comes at a price.

Expert fees have been scandalously high in some instances. The move to set rates is well overdue, but will again have to be managed carefully because of the risk of losing quality from the system.

As regards police station work instead of relying on competition the government has now gone back to controlling costs by fixing the price for such work. Solicitors in London could be especially hard hit. Our concern is that gaps in cover could emerge if the price set is not sustainable. It is an open secret that many firms stay in police station work because they want to pick up the well paid Crown and higher court work. Cutting the pay for such work could lead to many deciding to abandon criminal work altogether.

Reports from the audit trail ... Number 4

In May 2009, as part of the Access to Justice Audit, LAG hosted an event nicknamed the ‘divorce law summit’. It was a roundtable discussion involving a dozen people - half were ‘ordinary people’ and half were divorce ‘professionals’, including representatives from the family lawyers group Resolution, a barrister, a mediator and even a self-styled ‘passion coach’.

The session was chaired by Suzy Miller, the founder of the Starting Over Show, who organised Britain’s first divorce fair at a Brighton hotel earlier in the year. The event (which aimed to ‘help people bounce back from relationship break ups and life crises’) made Radio 4’s Thought for the Day and every newspaper in the UK (as well as the Timaru Herald in New Zealand and the Lebanon Daily News).

The idea for the LAG seminar was, with over 140,000 UK couples divorcing each year, to talk to people about a legal process that all too often leaves ex-spouses aggrieved, unhappy and considerably poorer.

When LAG invited Resolution there were some (understandable) concerns that lawyers would become the scapegoats for people’s wider dissatisfaction with the system. As an icebreaker, Suzy asked: ‘Is there ever such a thing as a "healthy divorce"’? It was interesting that participants’ first response wasn’t to engage in a bout of lawyer-bashing.

‘I think there’s such a thing as “a healthy divorce” but I don’t think it has anything to do with the law. It is all down to the people and their attitude towards it,’ began Lesley, a writer who has been ‘divorced twice and married three times … the last time we never got round to it’. Next up was Andrew. ‘I waited until I was 42 years old before I got married for the first time and then after I’d been in a relationship for eight years,’ he recounted. ‘We made it through a grand total of 18 months.’ He agreed there was ‘such a thing as a healthy divorce - probably achievable in direct proportion to the health of one’s relationship with oneself and one’s partner’. Fiona thought it was ‘down to emotional intelligence. But, frankly, that tends to drop down the list of priorities.’ During her divorce she found that the father of her three children (all under 12 years old) had been previously married. ‘That was a surprise,’ she added with understatement.

Next Suzy asked: ‘Does the legal framework increase acrimony?’ 'Yes', replied one of the lawyers, Nicholas Longford, chair of Resolution. ‘One of the problems is having a fault-based system.’ He offered a solicitor’s perspective on the uncomfortable experience of having to explain to clients that anyone who did not want to wait two years or more for a divorce has to prove ‘unreasonable behaviour’ or adultery on the part of his/her husband or wife. This ‘blame culture’ infects the process from the start, he argued.

Andrew described the deadening impact of the legal process on the relationship with his ex. He is a former social worker in child protection and has spent ‘decades instructing lawyers and barristers’. ‘It was an extreme shock to be on the receiving end, like wrestling a cloud,’ he said. ‘I went down the path of least resistance, waited two years and acquiesced for the most part.’

There was agreement over the damaging absence of reliable information in the public domain to help ex-couples navigate divorce. It was argued that this information vacuum meant couples came to rely on lawyers as ‘gatekeepers’ to the process. ‘A lot of people go to their high street lawyer thinking they’re going to take care of everything – not realising that the lawyer should only be looking out for the legal side,’ said Jane Robey, chief executive of National Family Mediation. She reckoned that ‘some 80 per cent of the divorcing population’ go straight to a lawyer, often latching on to them ‘as a white knight’, despite legal aid having been available for mediation for ten years. ‘In mediation you can deal with all the emotions as well as the practicalities,’ she said. ‘It should be mediation first with a lawyer coming along later to look after the respective interests of individuals.’

Suzy also asked if there was a two-tier system with a superior level of service available for those private-paying, well-heeled clients and a lesser service for the legally-aided, full-time mums. David Emmerson of Resolution pointed out the contrast between the City divorce lawyer charging £400 an hour and the legal aid firm making £50 an hour.

Nicholas Longford insisted that his firm tried to give legally-aided clients the same level of service (‘they get more work done than paid for under the scheme’). ‘There’s a difficulty in that the government and the Legal Services Commission espouse a one-tier system verbally,’ he said. But the way that they ‘handle it, pay the lawyers and try to convince firms that the lowest level staff should be doing the work’ creates ‘a two-tier service’.

Criminal BVT U-turn

In the face of overwhelming opposition from LAG and others, including practitioners, the government has announced today that it will not be going ahead with its plans to roll out criminal best value tendering (BVT). LAG believes it would have been a disaster if it had stuck to its original plan of introducing BVT for work in police stations and magistrates’ courts across the country by January 2011. Instead, it has decided to evaluate the two pilots in Greater Manchester and Avon & Somerset due to commence in July next year before making a final decision. At the earliest any roll out would begin in 2013.

The Legal Services Commission (LSC) has also decided that practitioners will be able to undertake own-client work outside the police station areas they are contracted for. A tolerance of ten per cent of their total work will be introduced to cover this. This represents an important concession as practitioners had argued that not to allow own-client work outside the police station areas they are contracted for would hit practices hard and lead to an inefficient service. The LSC has also announced its intention to be more flexible on the number of providers it will contract with in an area.

Apart from the two pilot areas of Greater Manchester and Avon & Somerset, practitioners will be asked to apply for new contracts in July next year. The LSC will be using an online system for providers to apply for the new contracts. Practitioners in the pilot areas will be asked to bid using an online bidding process. The fear is that practitioners will put in suicide bids to secure the work and this could lead to the collapse of some firms.

In LAG’s view, the government's mistake was in believing that BVT was a magic bullet that could be introduced relatively painlessly to cut costs. LAG believes that the government pushed hard for the quick introduction of BVT, but had to cave in when it realised that it could result in the meltdown of the supplier base. LAG recognises that there are few alternatives to controlling costs in legal aid work apart from price-setting through fixed and graduated fees or price competition. The government and LSC need to set fair, sustainable prices for legal aid work; the alternative of cutting back what legal aid will pay for is unacceptable as it chokes off access to justice for the public.