I wrote this in 2010. I cannot now recall where it was published. I commissioned an independent IT report for the replacement of the DSCC. ￼ The Law Society followed this up by commissioning its own independent report which was very similar. I had meetings with The Law Society the Association of Chief constablle as it was then called. ￼ it was supported by the CLSA and the LCCSA. We then had a meeting with the LAA. They made encouraging noises at first saying they would ‘get back to you’ and then never did. I think we disturbed a petty little ‘Empire’ wanting to cling on to everything including CDS Direct. It remains a mystery as to how any public body would refuse to take up a proposal that woukd save the tax payer millions including easing the budget of the police. But there it is. And here is the piece as written in 2010.
Why do we need the defence solicitor call centre or CDS direct?
The simple answer is that we do not need either of them and the millions of tax payers’ money they consume are an entirely unnecessary expenditure. They are the strange combination of an historic legacy of LSC empire building and subsequent attempts (possibly illegal) to deprive people under arrest in police stations of legal advice on grounds of cost. First a brief run through of the lamentable history to show how we came to develop an over complicated and wasteful system.
The Duty solicitor call centre.
Under the Police and Criminal Evidence Act 1984 (PACE) s.58, Suspects were entitled to receive legal advice from an independent solicitor following on from a whole swathe of miscarriage of justice cases that brought disgrace and shame upon our nation. There was no call centre at all for ‘own clients ‘and no perceived need for one. The following is what used to happen if someone was in custody and asked for a solicitor.
A. Pre CDS Direct .
1. Duty Cases.
When PACE first came in or at least shortly afterward a rota was submitted to a call centre (who I think were called ‘air call’ in those days and who also handled emergency calls for doctors). There have now been repeated subsequent changes of call centre companies with the cheapest bid winning no doubt, but which causes massive disruption whilst the new company gets to grip with it.
Now I will outline the procedure for duty cases.
1. The police would call the call centre.
2. The call centre would call the duty solicitor.
3. The solicitor then calls the police station.
2. Own Client Cases.
Until very recently, when CDS Direct was created, no call centre at all was involved in these. The police station would have our number and
1. Call the solicitor to give the details who would then speak to the client.
Note this involved one call only.
B. Post CDS Direct.
There has now come a point when after years of encouraging solicitors to go to police stations in the middle of the night, the MOJ/LSC went into reverse gear. This took place under the revision of the General Criminal Contract in 2004, which specified for the first time that only telephone advice would be available under legal aid for certain classes of suspect. Thereafter in January 2008, following a poorly evaluated CDS Direct pilot and bogus consultation exercise, they decided to;
1 Firstly, remove the right of some defendants’ altogether to speak to a Solicitor of their choice at all. (Unless they paid privately – There are no credit card facilities in a custody suite!). This related to non custodial offences e.g. S5 POA but also drink drivers, warrant and breach of bail cases. (They call us with any remand in custody details for which call we do not get paid). Even if the own client or their family had known a solicitor for years they now had to speak with total strangers forming a panel known as CDS Direct run by private firms. Imagine this if it affected you or your family e.g. possibly under arrest for a drink driving offence (e.g. when you or they were not the driver). You may want your own solicitor for you or your family but may well end up speaking to an ex policeman on the CDS Direct panel instead. You may not be able to pay privately at that moment and are forced to speak to a total stranger instead of someone you trust. This is not a civilised pre-arranged appointment. You have been arrested in the middle of the night. You want someone you know and trust not a total stranger.
2 The second thing HMG did from January 2008, in all other non duty cases, was to remove the right of all clients to call their solicitors directly. All clients now have to go through the DSCC instead of asking the police to call us directly. This is transparently to enable the CDS Direct cases to be siphoned off as in paragraph B1 above. So the procedure in the most straightforward cases is as follows:
1. Police ring the DSCC.
2. DSCC rings the clients own solicitor.
3. The solicitor rings the police station.
So whereas all that used to be involved was one call to the solicitor by the police to the solicitor and no one else, (See A 2 above) and the phone being passed directly or transferred to the client in the cell, there are now three calls involved.
3 However in the CDS Direct cases (B1 above) the situation can be far more labour intensive involving more effort than a mere three phone calls. This because sometimes these become cases that require the intervention of the clients own solicitor after speaking to CDS Direct e.g. because an interview becomes necessary or because of a belated realisation that the client is vulnerable (which his own solicitor could have told them if asked). Look at this sequence:
1. Initial call from police to DSCC;
2. DSCC to CDS Direct;
3. CDS Direct to police/client,
4. CDS Direct to DSCC to report case not suitable for CDS Direct;
5. DSCC to nominated or duty solicitor,
6. Duty solicitor or nominated solicitor to police/client
So there we have it. We have (in the case of an own client) moved from one call to a potential six! Meanwhile whilst all this nonsense of a merry go round is taking place the distressed client is still sitting in the cell. He calls the police on an intercom only to be told they have called the DSCC and there is nothing more they can do. Frequently he/she will insist on not waiting any longer and will demand to be interviewed without a solicitor.
How much does this all cost?
Well that is an interesting question. I have tried to find this out. It does of course cost millions but precisely how much?
The Cost of CDS Direct
I tried to find the cost of CDS Direct from the last published LSC accounts financial reports 2008/2009. Interestingly there is no separate figure because it is lost by designating it as ‘PDS and CDS Direct’. Obviously I wanted to find out the individual cost of CDS Direct. I spent a fruitless morning trying to get someone in the LSC to tell me this figure i.e. the annual cost of CDS Direct? In the end I was told I would have to make a Freedom of Information act request. So as a tax payer I cannot simply find or request this information without going through the FOI procedure! I find this, if not sinister then at least disturbing. We should not have to fight for such information. I dispute that post contract that this is now commercially sensitive information.
It is therefore next to impossible to estimate. I thought of going back over published PDS accounts to deduct these from the present combined figure but the last time the PDS accounts stood alone was during the CDS Direct pilot back in 2005/6 and since then there have been closures and reductions to the PDS so a simple deduction would not work. All I can do is provide estimates. Information that has reached me suggests that there are three CDS Direct firms dealing with a total of 11,000 cases per month. I believe the cost per call is £22.00 rather than the usual advice call fee of £30.25. I assume that the cost of £22.00 per call has a profit element built in and that there are no separate demands upon the LSC or my figures will be an under estimate. We can therefore work out that the annual cost is nearly three million pounds (£2,904,000).
The cost of the defence solicitor call centre (DSCC)
Once again these figures are hard to come by but once in Government can be verified. However a draft tender invitation has found its way into my hands (118606-2009) and this estimated that the estimated value of the contract was £30 M over 6o months. This is therefore is a cost to the tax payer of £6M pa.
What is bizarre in particular is the transfer of own client work to the DSCC. I suspect this was linked to the penny pinching approach that required all cases to be funnelled to a central location to siphon off the CDS Direct work. The reason why the transfer otherwise made no sense at all is as follows:
1. The use of the DSCC for own client work came in at same time as police station fixed fees.
2. The separate advice call fee of £30.25 was then incorporated or wrapped up into the fixed fee for attendance and could only be claimed as a ‘stand alone’ telephone advice fee if no interview takes place (e.g. the police discover another committed the offence prior to interview). This claim is rare. So usually we do not get paid separately for telephone advice except in so far as it forms part of the fixed fee.
3. Why did they vastly expand the call centre at additional expense, to cope with vast amount of additional own clients, when the LSC have now effectively taken away the separate advice call fee by incorporating it into the fixed fee? We are effectively doing it for next to nothing and often this involves more than one advice call, but they increased HMG’s cost by introducing the DSCC. You do not need the ‘middle man’ in the form of the costly DSCC for own client work.
4. As far as CDS Direct is concerned, and the cases that are currently siphoned off to them, the LSC should have offered the profession the option of doing that work at a reduced fee (£22) for the limited category of work involved such as bail and warrant cases which would ensure we could be ready to pick up the work the next morning. (a far more efficient system than that which now occurs with random phone calls and faxes at bizarre times e.g. 2 am). An audit could ensure the proper application of exceptions in those rare cases where attendances are necessary.
How did this mess happen?
If you want to learn how to govern badly you could do no better than emulate the process under which all the above came about. First decide upon a policy. Then set up a bogus pilot. Thereafter conduct a bogus consultation and ignore all the responses from people and organisations who actually know the subject. Thereafter treat parliament with contempt by ignoring what it had approved and allow a Quango to change it without reference back. You must embrace the fact that you will be given dishonest and misleading advice by people who do not know what they are doing. Then you too can waste millions of public funds and put at risk access to justice. Remember this when the MOJ/LSC tell you what a wonderful success Virtual Courts are.
If you think I am being cynical then I can do no better than to quote directly from the work, published by Centre for Crime and Justice Studies King’s College London, of two of our most distinguished professors in the field, Professor Lee Bridges who is a Professor in the School of Law at the University of Warwick and Professor Ed Cape who is Professor of Criminal Law and Practice and Director of the Centre for Legal Research at the University of the West of England, Bristol. They wrote the only independent study of this matter, ‘CDS Direct: Flying in the face of the evidence’ and said:
‘The [CDS Direct] pilot project was never evaluated independently, and the evaluation that was carried out provided an inadequate basis for expanding the scheme. Evidence has been ignored or discounted as to the likely implications of changes which will build in long lines of communication and delay, which will break the link between suspects and ‘their’ lawyers, and which will require many of those who request legal advice to be asked about how they intend to pay. Spurious targets and measures of success – for example, measuring time taken by CDS Direct to respond to a call rather than the time taken to deliver legal advice – are established and calls for meaningful evaluation are refused. Whilst police custody officers are asked for their views about whether the schemes are ‘usable’, no attempt is made to discover the views and experiences of suspects or their lawyers.
Public consultation has been used to legitimise the new schemes, yet the process is shamelessly abused. Consultation periods are unreasonably short and, in the case of the consultation on the Police and Criminal Evidence codes, limited to the absolute minimum number of respondents permitted by the legislation. And, in any event, the views of those who oppose or question the
Proposals (that is, the overwhelming majority) are simply ignored. The parliamentary approval process for revising the codes is so arcane that it is difficult to identify the relevant committee that will actually consider the substance of the changes. However, that is of no consequence since, as the revisions were approved, the Legal Services Commission (LSC) changed the scheme so that what
Parliament had approved was immediately rendered meaningless.
Yet the confidence of the Ministry of Justice and the LSC that they will not, or cannot, be challenged is such that all of this is placed in the public domain.’
This is not a lengthy report but it is well sourced and frankly devastating in its analysis of the bad faith and duplicity shown by the MOJ/LSC. It should be recommended reading for every new minister with responsibility for this area. There are lessons to be learned including how fatal it is to rely on these officials without subjecting policy to genuine outside independent scrutiny and dangerous to hold a consultation and to deliberately ignore the results. I have under the FOIA subjected LSC responses to a comparison with the BVT consultation replies and again there was a total failure to engage the argument of 99% of respondents who told the LSC that BVT would not work. The subsequent debacle was not surprising when HMG finally realised how poor the process had been and rather than proceed to catastrophe cancelled the project at the eleventh hour.
A new approach would be welcomed. The automatic assumption that those with knowledge of the subject are self interested and oblivious of the need to protect the tax payer is wholly wrong. Working with the profession will make the CJS far more efficient than forcing half baked and crazed plans down our throats ever did.
Proposals for reform
1. Abolish the defence duty solicitor call centre.
2. Replace this with a system by which:
a) The local police call the local duty solicitor by calling a single telephone number which is changed each shift following a rota structure previously ‘up loaded’. There already telephone software systems to achieve this.
b) The call will be routed to the firm on duty. There may on some schemes be more than one firm on duty to which calls are allocated in rotation during the duty period. Other schemes have just one firm on call for a shift period. That firm may have a choice of numbers (You log on to a web site and switch the numbers to whoever is on call and back up for you) ) which the system will call in turn until answered.
c) If there is no answer then there will have to be a mechanism to allocate the case to the next firm due to receive a back up panel case. There may be software to do this automatically but I suspect a very small call centre may be necessary to deal with this very small number of cases. There will have to be a method of defaulting to the back up call centre.
d) As a failsafe, if the police do not hear from a solicitor, a central alternative number will be provided to the police and this will be put through to the same small national on call operator panel with access to all the rotas, who will either sort out the problem with the ‘on call firm’ not responding or begin to seek a back up solicitor from the appropriate local panel. (see below)
e) There also exists automatic messaging software (Dental surgeries use them) to remind Solicitors that they are on call and need to switch the telephone contact number to their own firms contact number.
f) We can help you research this but I have already begun preliminary discussions to ensure the technology is feasible and this would appear to be the case.
3. In terms of costs for this limited number of back up cases the size of this smaller call centre can be estimated with reference to the number of historical panel cases but it will be much smaller and relatively inexpensive. May I suggest that you discuss this matter initially with the CLSA (who currently handle all ID cards for the profession) as I am sure they will consider taking responsibility for this function when all the facts and figures are studied? I am not of course intending to commit the CLSA in any way at this stage as although I am a committee member I have no authority to do so. I am quite sure that the cost will be nearer to £250,000/£500,000 pa than to the £6 million you are currently paying for a call centre handling all calls to solicitors. This will also involve transparency so that all can see that back up/conflict cases are being allocated fairly.
4. All the thousands of own client cases will be dealt with without a call centre at all (in contrast to the post January 2008 position) unless the same availability problems arise as with duty cases.
5. Abolish CDS Direct ASAP and return those cases to the profession with the same restrictions upon attendance. If one is going to be on duty one may as well take those calls as well. This will be greeted rather sourly by the profession who will understandably complain that being woken up at 2 am for a drink drive call is just as, and indeed sometimes more, irksome than other advice call cases which attract a slightly higher fee. Bearing in mind that you will have saved the whole cost of CDS Direct and the 99% of the call centre expenditure, you should consider restoring the CDS Direct cases advice calls to the level of all other advice calls. The surplus millions you save can be re applied to the fund in this way and still save money for the tax payer due to the much smaller and less labour intensive call centre required backed by the established telephone technology that cuts out the use of the call centre in 95% of cases (a rough guess- I will update you later on the exact figures.)
To conclude, the present system is a waste of money. It is genuinely hated by Solicitors, clients and the police (who yearn for the pre-20008 days when they had to make one call to local firms on own client matters). It should be hated by anyone in government who hates waste and who wishes to strip out unnecessary layers of bureaucracy. When I have further information on the telephone IT aspect I will let you know.