The Law Society are now right up against it with regard to their self imposed deadline to provide further CDS contract guidance – which they set for today. You might have to wait until Monday now for us to pass this on – alternatively you can sit clicking the “refresh” button on their site.
Good luck Englands – have a good weekend.
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General criminal contract: Law Society statement
Friday 12 October 2007
Practioners’ concern about the Criminal Defence Service Direct (CDS Direct)
The Law Society has received letters from many practitioners concerned about the interplay between the provisions for CDS Direct and the General Criminal Contract (GCC).
We are not able to advise solicitors not to sign the General Criminal Contract based on that interplay
We have considered whether the Law Society would be entitled to advise solicitors not to sign the contract. Leading counsel (Andrew Munday QC), has advised us unequivocally that we cannot do so for three reasons:
The references to CDS Direct in the GCC are by way of explanation only, and to identify work which is not covered by the contract and for which the solicitor will not be paid under this contract. The clauses do not require solicitors to act in any way, let alone in an unlawful way.
The references to CDS Direct are peripheral to the main purpose of the contract. They do not go to the heart of the contract, and therefore no court could be expected to find that any problem with these clauses served to render the contract as a whole unlawful.
The GCC contains a severability clause at clause 16.13 of the standard terms. The meaning of this clause is that even if all of the arguments about CDS Direct were upheld by a court, and the provisions were found to be unlawful, the only consequence would be that those clauses fell out of the contract and the rest remained intact.
We continue to work to resolve concerns expressed by practitioners
We are very concerned about the arguments over CDS Direct. For legal, procedural and tactical reasons, we do not wish to go into detail about all of the steps we are taking, but they reflect the seriousness of the concerns that have been expressed. Leading Counsel shared many of these concerns.
The issues are complex, but we believe there is great force in many of arguments, including:
the interplay between CDS Direct and section 58 of the Police and Criminal Evidence Act 1984
the compliance of CDS Direct with the SRA’s regulatory standards, particularly over supervision and independence
the implications of having a non-solicitor commercial organisation involved in the delivery of the service
the separate implications of diverting all requests for own solicitor advice to the Defence Solicitor Call Centre
We have also identified further issues of concern around the nature of the retainer between the client and the CDS Direct organisation, and the question whether discussions between a client and a non-solicitor advisor attract legal professional privilege. On top of all this, there are factual problems surrounding both the stated and likely actual supervision arrangements.
We are pursuing all of these issues in the context of the proposed amendments to the PACE Codes required to implement the changes, and are making our views known to the SRA, because we believe there is an important regulatory task to be addressed. Up to now, CDS Direct has been a pilot scheme. The LSC are now proposing to make it permanent, to extend its scope hugely and to require any non-solicitor commercial organisations involved actually to employ solicitors to provide and supervise legal services being provided to the public. We believe the profession’s regulator should investigate how the supervision arrangements within the CDS Direct pilot have been working. By their proposals, we believe the LSC are trying to bring about an ABS structure far too early and without the necessary regulatory protections that Parliament is insisting on in Part 5 of the Legal Services Bill.
We believe the Commission has acted unwisely in proceeding in this way. The appeal against the judgment in the judicial review case relating to the Unified Contract is due to be held on 15 and 16 October. The outcome of that appeal may have the effect of calling into question the process the LSC has followed in offering this contract and the lawfulness of some of the terms. Unfortunately, it is not likely that judgment will be delivered before 31 October and so this is not a reason why firms should consider not signing the contract. However, if the LSC is later shown to have acted unlawfully and any firms suffers a loss as a result, that firm may have a claim for damages against the LSC.
What should practitioners do about the General Criminal Contract?
We still have the utmost concern over the ability of many professionals to deliver a proper professional service for the fees on offer under this contract. We will be providing more detailed advice by 23 October. Our advice remains, as it was when the contract was first sent out, that if you do not believe you can deliver a proper professional service for the fees on offer, then you need seriously to consider whether you should sign this contract.