Criminal lack of aid

Government moves to shake up criminal justice have failed to recognise the dire state of support afforded to legal aid lawyers, argues Carolyn Kirby

The criminal justice system faces serious challenges.

Defence practitioners are under attack, the Court Service is underfunded, legal aid is in crisis, the law enforcement agencies are insufficiently resourced, and public perception is negative, fuelled by a media that is often misinformed and prone to misinterpretation.

In searching for a path through the maze of problems that currently exist, it is clear that the persistently thorny subject of public funding is central to the future success, or otherwise, of our criminal justice system.

The fact is that the legal aid spend in criminal matters has been increasing steadily for the past four or five years.

The removal of the means test for most criminal defence work has increased the number of people eligible for legal aid.

On top of this, a gaping hole has been left in the legal aid budget by the urgent need for immigration support - a need that was not identified when the budget was set - and by Home Office policies that have affected criminal court costs.

Government policies have led to a rise in the number of people being arrested and imprisoned.

Defendants at risk of prison have an unquestionable entitlement to legal representation.

The government must recognise that it cannot introduce legislation, initiate criminal justice reforms, or decide to take a 'tougher stance' on certain types of offences and categories of defendants, without considering the consequent impact on the criminal defence budget.

Clearly, there needs to be more cohesive thinking from the government, which says it is committed to evidence-based policy making and to undertaking impact assessments of proposed changes, for example, on disadvantaged groups.

An important part of this analysis is the consequent need for resourcing policy changes.

There must be a commitment to meet the projected increase in spending that is needed.

Expecting criminal defence lawyers to do publicly funded work at decreasing rates, in real terms, will lead to more and more skilled practitioners abandoning it.

This is the road to a third-rate service which would fail to provide defendants with their basic entitlement.

There is already an insufficient supply of criminal defence lawyers.

Unless urgent action is taken, more will leave this area of work and young people will be further deterred from entering it.

Already there is some evidence that legal practice course students are turning away from elective subjects in areas of law that are publicly funded.

One course provider reports, for example, that in 1996/1997, 60 out of 119 students selected housing law, from a choice of two electives; in 2002/2003, only 24 out of 165 students selected housing law, from a choice of three electives.

This will all be no surprise to those working in the sector but, significantly, it has at last been highlighted by the Legal Services Commission's own most recent annual report.

It recognises the drift away from legal aid work and expresses concern about the future supplier base.

However, the problems do not relate simply to money.

The morale of legal aid practitioners is at an all-time low; they feel undervalued and under attack.

Criminal lawyers have been accused of 'stringing out' cases for profit - an accusation that is not only without justification but is senseless in a system with standard fees for criminal cases.

Low morale contributes to the drift away from this area of work.

Failing to address these issues now will lead to deserts of provision, such as that recently reported so starkly by Joshua Rozenberg in the Daily Telegraph.

A Cambridgeshire solicitor was interviewed and reported that he is the only solicitor franchised to undertake criminal legal aid work for the 50,000 people living in and around the town of March.

The duty solicitor scheme also faces crisis.

Low pay, plummeting morale, a lack of career structure and uncertainty about the future of legal aid, all contribute to the exodus from this area of practice.

Insufficient numbers of duty solicitors will inevitably make it more difficult for suspects' basic rights to legal advice to be met.

There has never been a greater need for criminal defence practitioners.

A consequence of this should be an increase in the prestige and value accorded to them.

The government and media should celebrate their vital contribution to the administration of justice and the protection of basic human rights.

However, this is not the case.

It is time to recognise the importance of maintaining, promoting and investing in an effective and efficient criminal justice system.

While the government concentrates on high-profile legislation such as the Criminal Justice Bill and the Courts Bill, it runs the risk of policy failures.

The criminal justice system cannot function without a cadre of expert, committed lawyers who undertake public service work.

We would all like to be certain that our criminal justice system is among the best in the world, not only in the interests of the public, but also to promote this country's international credibility.

No matter what legislative initiatives are undertaken, we will not achieve this goal by starving the system of resources and ignoring the value of those who provide the legal services that support it.

If the government wants a modernised and efficient criminal justice system, it must recognise the crucial role of the lawyers who provide services within it and remunerate them fairly for the important public service they perform.

Carolyn Kirby is President of the Law Society