Access to client money?
Could other public sector debt recovery mechanisms be used to collect summary criminal legal aid contributions?
The proposed Scottish Civil Justice Council and Criminal Legal Assistance Bill would mean solicitors becoming unpaid debt collectors. But proposals from frontlinepolicy.org.uk could, if adopted, prevent this.
Under the new bill, criminal legal aid clients with a disposable income over £68 will have to pay a contribution towards legal fees. This means that solicitors will become unpaid debt collectors.
Concerns have been raised about access to justice.
The Law Society of Scotland’s view is that the Scottish Legal Aid Board already has existing structures in place for contribution collection for civil cases and that it would be consistent for them to collect contributions for criminal legal aid cases as well.
From information provided by the Scottish Court Service (SCS), the potential scale of the problem facing criminal legal aid solicitors is considerable.
For the four year period from financial years 2008-09 to 2011-12, Scottish Courts issued 542,400 fines. During this same period, 430,300 enforcement orders were issued (79%). This is the initial step for an enforcement action. In addition, fines enforcement officers agreed revised payment terms for 141,300 accounts (32%).
From the information available it is clear that many fines take two, three or more years to be paid. Beyond this the courts imposed supervised attendance orders on 11,100 people as an alternative punishment, and 5,200 fine defaulters were imprisoned. The last two categories account for approximately 4% of enforcement orders.
Under the proposed bill, the issue is not only how long criminal legal aid solicitors could take to recover client contributions, but whether they will recover them at all.
With the additional resources that will be required for debt recovery, and given that criminal legal aid solicitors are already under mounting financial pressure, it is clear why there are such grave concerns about access to justice.
However, I recently wrote to the Rt Hon Chris Grayling MP, the Minister for Justice, outlining reforms to streamline the recovery of court fines and they could easily be extended to client contributions in Scotland. A report published in March by the Public Accounts Committee showed that In England there is £1.9 billion in courts fines uncollected.
The key issue is the cost of recovery and the key factor is the national insurance number (NINo). The fact is that without the NINo, the cost of recovering fixed penalty notices (FPNs) and smaller court fines is effectively prohibitive.
To address this issue, three reforms are required:
- The crucial reform to the system is that police officers would need to gather the NINo at the time of issuing a FPN or when making an arrest. This would require the DWP to provide an out-of-hours service for this purpose.
The cost of this service would be in the millions, but could be set against the billions that would be collected. Of course, the cost of the service would decline over time. First, repeat offenders will already be in the new system.
Secondly, as habitual reoffenders realise that they can no longer commit low-level crime with impunity, they are more likely to stop offending.
- Rather than arresting wages of those offenders that are working, the debt recovery mechanism of HM Revenue & Customs should be used. Many offenders change employers to avoid paying their court fine. This mechanism simply involves changing the offender’s tax code until the fine is recovered.
- For those on benefits, a more businesslike approach is appropriate. If the offender does not pay their fine in full when issued, then the courts should immediately use the Benefits Agency’s (BA) Third Party Deduction (TPD) mechanism.
With the above reforms in place and with the appropriate amendments to the proposed bill, the Scottish Legal Aid Board, as a statutory body, could use these reformed mechanisms to automatically recover client contributions.
Mev Brown is the founder/editor of frontlinepolicy.org.uk It was established in June to draw on the experience of front line professionals to contribute to the policy debate.