The profession, the public and the government, time and time again, year after year, have been warned about the current dire landscape of criminal legal aid.
In December 2018, the Ministry of Justice (MoJ) published the government response to Amending the Advocates’ Graduated Fee Scheme. This was followed by an announcement that a review of criminal legal aid would take place in the near future.
CLAR was set up with the hope of two main outcomes:
(1) To reform the criminal legal aid fee schemes so that they:
- fairly reflect, and pay for, work done
- support the sustainability of the market, including recruitment, retention, and career progression within the professions and a diverse workforce
- support just, efficient, and effective case progression, limit perverse incentives, and ensure value for money for the taxpayer
- are consistent with and, where appropriate enable, wider reforms
- are simple and place proportionate administrative burdens on providers, the Legal Aid Agency (LAA), and other government departments and agencies
- ensure cases are dealt with by practitioners with the right skills and experience
(2) To reform the wider criminal legal aid market to ensure that the provider market:
- responds flexibly to changes in the wider system, pursues working practices and structures that drive efficient and effective case progression, and delivers value for money for the taxpayer
- operates to ensure that legal aid services are delivered by practitioners with the right skills and experience
- operates to ensure the right level of legal aid provision and to encourage a diverse workforce
CLAR is due to report towards the end of the summer 2020. However, following threat of industrial action from members of the criminal bar in the summer of 2019, the MoJ announced details of an accelerated items report, due by November 2019.
CLAR is being overseen by a cross-agency Criminal Legal Aid Review Programme Board and is being advised by a Defence Practitioner Advisory Panel comprising representatives from solicitors and barristers, including the Junior Lawyers Division.
Fixed fees, graduated fee schemes like the Advocates’ Graduated Fee Scheme (AFGS) and Litigators’ Graduated Fee Scheme (LGFS) are no longer fit for purpose. The rate of remuneration is based on out of date historical data and on the concept of swings and roundabouts and thus the rate of remuneration is inadequate.
Since 2010, there are 21,000 fewer police officers, 600+ police stations have closed and so have half of the Magistrates’ Courts. In the last eight years, there’s been a 45% reduction in prosecutions and a significant increase in suspects being Released under Investigation (RUI); in 2017/2018, 193,000 suspects were RUI.
Impact on junior criminal legal aid lawyers
In summary, there aren’t many. The Law Society published data in April 2018 outlining the average age of a duty solicitor in England and Wales was 47. To make matters worse, there has been a 36% drop in law firms with a criminal legal aid contract in the last 10 years and comparing the October 2019 Duty Rota to that of three years ago shows a 29% decrease in Duty Solicitors.
Aspiring junior lawyers are being 'put off' a career in criminal legal aid – even by current practitioners – due to the long working hours and little reward. Many junior lawyers we speak to say they would be interested in a career in criminal law but the low pay puts them off and there is no job security.
This profession is losing out on talent as juniors choose, what they perceive as, more attractive, more lucrative careers with better prospects. After all, how could one be convinced to join a sector that has had no cash injection since the 1990’s? And who knows what the sector will be like in 10 years? From a junior starting out with 50+ years to work there is little to persuade them.
The biggest concern though is who will provide criminal legal aid in future. There will be no readymade criminal defence solicitors sitting on the shelf; once it’s gone, it’s gone.
What do we want to see?
It’s more a case of need. We need to see the profession collectively willing to continue providing criminal legal aid. We need to see the profession exercise its industrial strength and rally around a campaign seeking an increase in the rate of remuneration. There is no justice without access to it and that is in the form of an expert legal aid lawyer.
If CLAR is to be a success, this government must agree to injecting new money into the fee schemes, otherwise it will soon find the Defence Practitioner Advisory Panel will be no more. It will walk away because it is not interested in rearranging the deck chairs on a sinking ship.
To add salt to defence solicitor’s wounds, on 1 November 2019, the Crown Prosecution Service (CPS) announced details with regards to an increase in remuneration for CPS advocates. Of course, the announcement of a general election on 12 December 2019 will certainly throw a spanner in the works. Delays are now inevitable with the CLAR being placed on hold until 2020 but that does give the profession time to get in line.
What can junior lawyers do?
Support the JLD’s work. Follow the developments of the CLAR and attend any roadshows in your local area. Respond to any government consultations on this issue. Finally, share real stories about how the lack of funding has affected you, your family and/or your clients.
If you work in criminal law; or you’re practising in a different area of law because the lack of funding put you off; or even if you have moved into another area of law from the criminal sector, please get in touch by emailing us at firstname.lastname@example.org with ‘CLAR’ in the subject line.
We hope the pendulum will swing back our way. Until then, it’s optimism with significant warnings.
Amy Clowrey, Switalskis Solicitors, and Stephen Davies, Tuckers Solicitors LLP