Criminal Legal Aid Funding Plan rejected by Government

Criminal Legal Aid: The Government’s Final Response and the Future of the Defence Profession

What CLAIR Recommended

Sir Christopher Bellamy advised an immediate 15 per cent increase in rates for barristers and solicitors. The uplift was valued at approximately £135 million and described as the bare minimum required to prevent the collapse of the criminal defence sector.

Dominic Raab declined to apply the full 15 per cent increase. Under the current plan, solicitors will receive a 9 per cent rise in 2022 and a further 2 per cent by 2024. This is 40 per cent less than the review recommended.

The Law Society’s Reaction

The Law Society has warned that the scheduled funding is insufficient to sustain a functioning criminal defence profession. Without adequate investment, lawyers will struggle to uphold justice in England and Wales.

The government has accepted CLAIR’s reasoning for increasing fee schemes and proposes a 15 per cent rise for most schemes. This includes an additional £115 million per year, plus £20 million for longer-term investment. Planned reforms include changes to the Graduated Litigators’ Fee Scheme, youth court funding and measures to support the sustainability of criminal practice.

The government also intends to support new entrants to the profession by providing up to £2.5 million in training grants for solicitors.

Youth Court: A Critical Pressure Point

Children appearing in the youth court are among the most vulnerable defendants. They require specialised support and representation from lawyers who understand the youth justice system and its sentencing framework. Building trust with a child takes time, patience and skill.

CLAIR identified that current youth court fees often result in inexperienced lawyers taking on these cases. Many do not have sufficient time to meet the child, understand the case or build rapport. The government has accepted the principle that youth court work should attract higher fees than standard magistrates’ court work. This reflects the seriousness and complexity of the cases and may attract more experienced lawyers.

However, the government states that it currently has no evidence to determine the extent to which higher remuneration would improve advocacy quality.

Training Grants for Solicitors

CLAIR recommended training subsidies to address recruitment and retention problems. Many solicitors leave defence firms for the Crown Prosecution Service because pay and working conditions are better. CLAIR supported raising fees so defence firms can offer salaries comparable to the CPS.

Protecting Lawyers’ Practice

CLAIR’s data revealed that in 2018 to 2019, approximately 80 per cent of firms undertaking criminal legal aid work had no new trainees. Low starting salaries deter candidates from disadvantaged backgrounds.

The data also highlighted disparities in earnings. Thirteen per cent of criminal barristers and 22% of solicitors working in criminal legal aid firms were from ethnic minority backgrounds. Women and ethnic minority lawyers consistently earned less than their white male counterparts, even with identical years of experience.

For example, female criminal lawyers with 23 to 27 years of experience had a median fee income of £79,000 before expenses. Male lawyers with the same experience earned £101,000. Ethnic minority barristers with 23 to 27 years of experience earned £83,000 compared to £99,000 for white barristers.

CLAIR concluded that increasing criminal legal aid fees would help firms attract talent from all backgrounds and reduce barriers faced by ethnic minority barristers. However, systemic issues within the profession require further action.

Pre-Charge Engagement

The government is expanding payment capacity for Pre-Charge Engagement for cases beginning on or after 1 October 2022. Solicitors will now be paid for preparatory work undertaken during PCE. This early work has previously been ignored.

Public Defender Service

The government intends to expand the Public Defender Service. The PDS provides free legal advice at police stations and representation for eligible defendants in court. Expansion will initially focus on areas with unmet need, risk of market disruption or shortages of duty solicitors. It may also be used where the PDS offers better value for money, including Very High Cost Criminal Cases.

Additional objectives include:

• Increasing legal aid rates, including police station and magistrates’ court work
• Adjusting fee structures to reflect the work required
• Establishing an advisory board

The government states that private legally aided provision is not the only way criminal defence can be delivered. It also acknowledges the immediate danger in the market and its obligation to ensure access to justice.

The Law Society’s Warning

The Law Society predicts that by 2025:

• Duty solicitors will decrease by nineteen per cent
• Criminal legal aid firms will decrease by sixteen per cent

This would leave many people without access to a lawyer when they need one most. The consequences will be severe for small firms, the criminal justice system and thousands of victims and defendants.

Implications for Law Firms

Solicitors must manage risks to financial stability and business viability under rules 2.4 and 2.5 of the SRA Code of Conduct for Firms.

The Law Society does not advise firms to abandon criminal defence work. It encourages each firm to assess its own circumstances and reduce reliance on criminal defence practice where necessary.

Implications for the Criminal Justice System

The Law Society warns that those entering the profession are unlikely to earn a reasonable income from criminal defence work. Funding shortages have made the system economically unsustainable.

In some regions, fewer than seven duty solicitors remain. Each solicitor is on duty for at least one full 24-hr period every week. The number of criminal legal aid firms has almost halved in fifteen years. Some counties have no duty solicitors under the age of 35.

Ethnic minority solicitors are disproportionately affected. As Joe Mensah Dankwah explains, legal aid once provided opportunities for minority communities to establish high street practices. Funding cuts have made the work unprofitable and left firms in debt. Criminal defence solicitors are leaving the sector rapidly. Without them, there will be no meaningful check on state power.

Implications for Victims and Defendants

Duty solicitors work long hours, often attending police stations during evenings and weekends. They provide free legal advice to anyone detained, regardless of age, wealth or nationality.

Despite their commitment to justice, diminishing fees and a shrinking profession have increased caseloads and strained the system. Criminal defence lawyers are witnessing the erosion of justice in real time.

The Law Society’s Legal Action

In January 2023, the Law Society sent a pre-action letter to the government. It argues that the lord chancellor’s refusal to implement the recommended 15 per cent increase is unlawful and irrational. The letter calls on the lord chancellor to withdraw the decision and apply the bare minimum uplift recommended by CLAIR.