A client who is charged with a crime faces one of the most difficult events of their lives. The feelings of unfairness and helplessness can surpass divorce and bereavement in the levels of stress and unhappiness they cause. This is even more so when the allegation is incorrect, and the client wishes to enter a not guilty plea. Clients have to decide whether to use legal aid, or if they can afford it paying privately.
It is therefore not surprising that many of our clients wish to make a truly informed choice about whether it is worth being a private paying client. To make an informed choice clients need to know the facts which I set out below.
We are experts in criminal law. We are bound by our professional rules and pride in our work to do our very best for all clients whether they are private or legally aided. And do our very best we do. However, the absurdly low legal aid rates for both solicitors and counsel have consequences.
First, choice of counsel for private paying criminal clients
To put it bluntly and despite the cab rank rule the best senior barristers who are true experts in their field will not take on poorly paid legal aid work. This is because the fees set under the legal aid scheme are so low. For example, a barrister will be paid only £863 for a full 2-day trial before a jury on a charge of assault occasioning actual bodily harm. This is so despite the fact that the offence is classified as serious violence. The fee includes reading all the papers and fully preparing the case. They must take the defendant through their defence, if they choose to give evidence, and cross examine the prosecution witnesses. There is no payment for fares or travel to and from London courts. The fee for sentencing on a conviction is just £145. These very low fees mean that the client’s choice of barrister is much reduced.
Paying privately will mean a much wider choice of counsel to conduct your case and enable us to choose those most suited to your defence.
Second, getting the counsel you choose.
Legally aided cases are often not given fixed dates but appear in warned lists which means that they can be listed at any time over a two-week period. Your legal aid counsel may not be available when the case comes in and will be taken over by new counsel as a “return”. In general courts are much more sympathetic to giving fixed dates to cases where the client is paying privately.
Paying privately means you will be represented in court by the counsel you choose.
Third, preparation and submission of pre-trial representations.
There is no better result than getting the case dropped or discontinued before it ever comes to trial. Clients who have been wrongly accused are spared the stress and expense of going to court. There is no legal aid for either us or counsel to be to be paid for work done post charge trying to persuade the prosecution to discontinue the case. In fact, doing such work in a legally aided case can result in much reduced fees. Submissions that a case be discontinued should be made in every case where they are justified, and you will see in the examples below why the work that has been made possible by paying privately can give so much value.
Paying privately means we can spend more time time on submissions that your case should be discontinued.
Fourth, level of expertise.
Solicitors receive just over £400 for a two-day theft trial. This sum is fixed and cannot be increased even if the evidence is difficult. It stays the same even when we spend long hours with the client. It stays the same where we send a detailed analysis to counsel; where we attend a conference in chambers or spend time instructing handwriting experts. It stays the same where there is extra preparation for example interviewing and preparing statements for multiple defence witnesses. Such work is done at a loss. We cannot therefore assign our most experienced and senior solicitors to these cases. As a result, these cases are conducted under supervision by more junior staff whilst training. If you pay privately your case will be conducted by a partner with over 16 years’ experience and levels of skill and attention to match.
Paying privately means that you will get our most senior and experienced solicitor.
Fifth, level of customer service.
We aim to provide a very high level of customer service to our private criminal clients. For instance, returning calls and answering e mails the same day, discussing tactics and developing strategy are all much easier to achieve under a private client basis just because the number of privately funded cases is lower.
Paying privately means that you will get the very best customer service.
The importance of private funding to make pre-trial representations is shown in the recent case of a young client just embarking on a career in the professions. They had been interviewed over three years ago about an offence. The police had at that time agreed a resolution which did not involve a charge and later confirmed to us that the case was to be treated as there being “no further action”. To their very great surprise and distress three years later they received a summons to attend court. We instructed senior counsel to attend and seek an adjournment whilst representations were made that the case should not proceed. The adjournment was granted, and very lengthy submissions prepared that the case should not proceed. We argued that if the prosecution did not agree then our client would issue judicial review proceedings of the decisions to charge. The case was withdrawn and our client able to resume their life and career path.
Similarly, a client accused of people trafficking was charged and remanded into custody upon the police making incorrect claims about their contact with co-defendants and their vehicles. We were instructed privately and were able to show that the police claims were not well founded and as a result obtain their release. The case was then thoroughly prepared, an expert senior barrister instructed, and a detailed statement served. In view of the contents of the Defence Case Statement the prosecution concluded there was no longer a realistic prospect of conviction. They therefore indicated that they would not be offering any evidence against our client and our client was acquitted without there being a trial.
In sexual offences cases it is crucial that the right counsel of sufficient seniority and experience is instructed. This is because the very nature of the cases often concerns whose evidence the jury prefers – that of the defendant or the complainant. It is therefore important to not only thoroughly prepare the case but also make sure that counsel selected is a good match for the facts of the case, the type of complainant to be cross examined, the personality of the defendant and the listing protocols of the court. It is also necessary to ensure that proper pre-trial conferences are arranged, and that counsel instructed and advising in conference are indeed those who conduct the trial. In a recent case our client was accused of a serious sexual offence, he decided to pay privately, and we were able to select, in discussion with him the correct advocate and he was in due course found not guilty.
Paying privately is no magic bullet for a not guilty verdict but in view of the above we believe it certainly improves the prospects of a successful outcome.
Types of private fee agreements.
In straight forward cases we can usually offer a fixed fee or agreed fixed fee which is an agreement that you will pay that sum and no more. In more complex cases we can offer staged fixed fees for the different elements of the case, for example up to and including your entering a plea, thereafter service of defence case statement and finally for the trial itself. Alternatively, we charge an hourly rate and provide you with an estimate of likely costs. In all cases we will require funds on account in advance.
To discuss your case and funding arrangements please call Gil Spurling, the partner in charge of crime, on 02089868336.