Article written by Laetitia Ponde Nkot
On 30 November 2022, the UK government announced its final response to the Independent Review of Criminal Legal Aid.
In December 2020, the government ordered the Criminal Legal Aid Independent Review (CLAIR), which studied the provision of criminal legal aid in England and Wales. The review was launched by Sir Christopher Bellamy QC, a former judge with extensive legal experience. The review aimed to find a course of action to protect the future and long-term sustainability of the criminal justice system.
Sir Bellamy advised a 15% increase in rates for barristers and solicitors, worth around £135m. Dominic Raab took the decision not to apply the immediate 15% increase in the criminal legal aid rate put forward in the review as a bare minimum to prevent the collapse of the criminal defence sector.
Under the current plan, solicitors should receive a 9% increase in criminal legal aid funding in 2022 and a further 2% by 2024, 40% less than Sir Bellamy’s recommendations.
The Law Society is worried that the scheduled funding will not be enough to sustain a criminal defence profession and allow lawyers to uphold justice in England and Wales.
The government welcomed CLAIR’s explanations for augmentation in fee schemes and proposes a 15% increase for most schemes, implanting a supplement of £115m a year into the system, added to £20m sterling per year for a longer-term investment. Projects carry reform of the Graduated Litigators’ Fee Scheme (LGFS), youth court, and the general sustainability and development of lawyers’ practice. The Government is also assisting the next generation of criminal solicitors by making available up to £2.5 million for training grants for solicitors.
Arraigned children are among the most vulnerable and gain the most from specialised and personalised succour as well as from a defence lawyer who has their rehabilitation desire. Working in Youth Court demands an understanding of the separate youth justice system, sentencing process and options. Building confidence and empathy with a child is arduous and takes more time and strive.
The CLAIR report identifies that current levels of juvenile court fees can lead to inexperienced lawyers taking on these cases, who may have little time to meet with the child in order to engage them, understand their cases, win his trust, and speak for his interests successfully. This is why the government embraced the premise of CLAIR’s recommendation that a relative increase beyond the standard Magistrates’ Court rates for certain youth affairs could better reflect the seriousness and complexity of the work needed, will reflect the need to spend more time with child defendant and might attract more experienced lawyers to work in Youth Court. However, the government currently has no evidence to say to what extent a rise in the quality of advocacy could be achieved with higher remuneration.
CLAIR recommended making training subsidies accessible for solicitors firms to tackle recruitment and retention difficulties that could conduct to an unsustainable criminal solicitor market. CLAIR observed that many solicitors quit defence firms to join the Crown Prosecution Service (CPS) because it pays and conditions are better. CLAIR approved raising fees to enable defence firms to offer salaries at a level similar to that of the CPS.
The CLAIR data also remarked that in 2018-2019, about 80% of companies doing criminal legal aid work had no new trainees. CLAIR concedes that the starting salary is often low for these groups, which can deter people from disadvantaged backgrounds from entering the profession.
The data reveals that 13% of criminal barristers (2019-20) and 22% of solicitors (2018-19) operating with criminal legal aid firms were from ethnic minorities, compared to 16% in the general population of working age (annual population survey 2019-20).
The criminal legal aid profession overall was 50/50 male to female, however, among those over the age of 45 the split was approximately 60/40 male to female. Among duty solicitors, the split was 65/35 male to female in 2019. Among specialist criminal barristers in 2019-20, the point of entry sex balance was approximately 50/50 male for women, but the senior barristers included a much more important proportion of men, resulting in an overall balance of 69/31.
These same data demonstrated that women lawyers earn on average less than men with the same years of practice. For example, female criminal lawyers with 23 to 27 years of experience had a median public criminal fee income before expenses of £79,000, compared to £101,000 for their male counterparts. These data also showed that ethnic minority lawyers tend to earn less than their equivalent white counterparts. For example, those with between 23 and 27 years of experience had a median public criminal fee before expenses of £83,000, compared to £99,000 for white barristers.
CLAIR concluded that an increase in the level at which criminal legal aid fees are paid would aid law firms to bring top talent from all walks of life and reduce the problems confronted by ethnic minority barristers to build a career at the Bar. However, the report bears out that much more needs to be done if the systemic barriers to progression within the professions are to be challenged.
The government is also expanding the capacity of payment for Pre-Charge engagement (PCE) on cases that begin on or after 1 October 2022.
Solicitors will now be able to collect remuneration for preparatory work handled for PCE. Currently, this crucial early work is ignored.
Finally, the government submitted to broaden the Public Defender Service (PDS); which provides free legal advice, assistance and representation at the police station and for those eligible for criminal legal aid at court; on a limited basis initially focused on providing additional capacity in geographic or thematic elements of the legal defense market where there is a potential unmet need, risk of default or disruption of markets, such as duty solicitors in rural areas and for specialised advocacy; or where the PDS might offer better value for money, as in Very High Cost (Criminal) Cases (VHCCs), a fee scheme developed by the CPS to ensure that the work done by the counsel is well managed by the lawyer.
Other objectives comprise:
The Government is determined to support the development of various professions and innovation in the supply of legal services. The Government does not believe, however, that ‘private legally aided provision is always and exclusively the only way that criminal defence can be delivered.’
In the short term, the Government is also aware of the danger in the market and the moral and legal obligations to ensure access to justice.
The Law Society urges that the number of duty solicitors will decrease by another 19% by 2025 (687 fewer duty solicitors) and the number of firms doing criminal legal aid work will decrease by 16% (150 fewer firms), leaving many people without access to a lawyer when they seriously need one. The current strategy will have ample consequences for small businesses operating in the criminal defence sector, the criminal justice system as a whole and thousands of victims and defendants seeking justice
Solicitors are under a professional obligation to guarantee they manage risks to their financial stability and business viability (under 2.4 and 2.5 of the SRA Code of Conduct for Firms).
The Law Society does not insinuate that solicitors’ firms give up criminal defence practice, but ‘each firm should make its own assessment as to its own individual circumstances.’
The Law Society strongly encourages firms to take steps to lower their backbone on criminal defence practice to give themselves realistic commercial options.
Law Society’s warning to those entering the profession and considering a career in criminal defence practice is that ‘given the situation with criminal legal aid, it is highly unlikely that they are able to generate a reasonable professional income from this work.’
A lack of legal aid funding means the system is no longer economically viable.
In some parts of the country, there are fewer than seven duty solicitors signifying each solicitor is on duty for at minimum one full 24-hour every single week.
The number of criminal legal aid firms has almost halved in the last 15 years, and some counties have no duty solicitors under the age of 35.
Criminal legal aid firms are facing desolate hopes, with solicitors from ethnic minority communities particularly affected by funding cuts. Law Society Council member Joe Mensah-Dankwah said, ‘Legal aid contracts offered employment opportunities and a chance for people to set up their own high-street businesses. For members of certain minority communities, legal aid was a haven,’ he recalls. But due to a lack of funding, the work is no longer profitable and firms are finding themselves saddled with debt. Criminal defence solicitors are now leaving the sector in droves… We’re coming to a position where there won’t be that check on the state’s power to arrest, detain and put a person through trial who may be innocent.’
Even after a hard working day in court, criminal duty solicitors spend evenings and weekends at police stations to help people who have been arrested understand their legal rights. For a criminal defence lawyer the call from the police station can happen at any time: Christmas dinners, celebrations with friends or spending time with his young children.
Criminal solicitors offer free legal advice to anyone detained by the police, regardless of wealth, age, or nationality.
Criminal defence lawyers’ passion for justice and protecting vulnerable people impel them to continue, even in difficult circumstances, but diminishing fees and a declining profession have piled up caseloads and left criminal defence lawyers to see the justice system abrade around them.
On January 2023, The Law Society sent a pre-action letter to the UK government protesting its decision-making as ‘unlawful and irrational’.
‘We argue the lord chancellor’s decision not to remunerate solicitors by the bare minimum 15% recommended by the government’s own independent review is unlawful,’ said president Lubna Shuja.
They issued a pre-action protocol letter calling on the lord chancellor to withdraw his decision not to increase criminal defence solicitors’ legal aid rates with the recommended bare minimum.