Four out of 10 defence lawyers were no longer prepared to undertake publicly-funded work on applications to the miscarriage of justice watchdog, according to new study which recommends an increase in legal aid rates that have been frozen for more than 20 years.
The new research paper published by academics at Sussex University adds to the pressure on the Criminal Cases Review Commission (CCRC) to refer more cases to the Court of Appeal. This follows the recent report from Westminster Commission published earlier in the year (reported here) and the 2015 House of Commons’ justice committee which both called on the watchdog to take a ‘bolder’ stand. The authors noted a ‘common position’ emerging from interviews with lawyers that the statutory test for referring cases was ‘being interpreted and applied too conservatively’ by the CCRC following ‘previous “handbaggings”’ by the Appeal judges which ‘they felt had made CCRC staff “obsequious”, “scared”, “subordinate”, “captive” and “supine”’.
The study, which had access to to CCRC data between 1997 and 2017, reported that only one in 10 applicants to the CCRC is now represented by a lawyer. By contrast a third of applicants had legal representation prior to a cut to legal aid rates of 8.75% in 2014. As a result, the authors – Prof Richard Vogler and Drs Lucy Welsh, Amy Clarke, Susann Wiedlitzka and Liz McDonnell – argue that the CCRC is increasingly faced with ‘poorly expressed, underprepared and often misguided applications’ which was adding to its ‘already substantial workload’. As the Westminster Commission report noted the watchdog has suffered the ‘biggest cut’ of any part of the criminal justice system since 2010.
The report’s authors noted that it was ‘striking’ that 18 of 45 lawyers interviewed (42%) were ‘no longer willing and/or able to accept potential CCRC cases on legal aid’ and some had dropped out altogether after the 2014 cut. ‘Whilst older specialist practitioners in the area were retiring from the work, of the seven trainees and paralegals/caseworkers we spoke to, one had already moved into another area of practice and two described plans to move into other areas,’ it continued. In a survey, 11 out of 13 lawyers reported that they no longer did pro bono work for potential CCRC applicants. An application made it through to the CCRC’s review stage in seven out of 10 of cases where a lawyer was involved (23% were deemed ‘ineligible’); compared to just four out of 10 for non-legally represented applicants.
The CCRC welcomed what is called ‘an insightful report’. ‘There is no doubt that applicants can sometimes be better served with input from a legal specialist,’ said CCRC chair Helen Pitcher. ‘A legal eye can certainly help an applicant to better understand the key points surrounding their case and any key nuggets of evidence or information as part of that claim. When an applicant understands what helps state their case, or has legal representation, that approach can certainly help with reviews and prevent unnecessary delays.’
The study drew on interviews with 45 lawyers and highlighted the legal profession’s concern about the CCRC’s relationship with the Court of Appeal and its ‘notoriously low referral rate’.
Public funding for criminal appeals is restricted to just £456.25 and is only available if a case is deemed to have sufficient benefit. The overly deferential relationship with the Appeal judges ‘had consequences for whether legal professionals believed the sufficient benefit could be satisfied, i.e. the lower the likelihood of referral, the less likely sufficient benefit could be found’.
The report states: ‘The CCRC should be a bit more willing to take a chance on cases, and a bit more willing to incur the displeasure of the Court of Appeal, and should apply not quite so tough tests as they do.’ Lawyers complained about ‘a lack of transparency and openness’ regarding decision-making at the CCRC, ‘unexplained delay and low levels of communication’ and an unwillingness to rethink decisions. As one solicitor put it: ‘They say, “We’ll listen to further representations.” Fine. They do, but they take no notice.’ ‘Suspicion and feelings of distrust about the review processes were also exacerbated where mistakes had been made or cases had not been referred when lawyers felt they should have been,’ the report said.
One solicitor described taking the decision to withdraw from publicly funded CCRC work back in 2008 because it became ‘uneconomic’. Asked about the legal aid rates, the respondent replied: ‘They’re laughable. They’re having a joke. It’s just not possible. I don’t think criminal practice in general is possible. […] I can’t remember how many years. ‘94, I think, was the last time they went up properly, ’94. And I pulled out 14 years after that … 14 years of making it more efficient, creating greater economies and trying to hang on to any semblance of quality.’
Lawyers can apply to the Legal Aid Authority (LAA) for more money to work on a case. Many respondent lawyers complained about the LAA’s acting in ‘an unfair or inconsistent manner’ with it being variously described as ‘irrational, perverse, or burdensome’. Interviewees felt that the agency was ‘obstructive and distrusting’ of lawyers and found this ‘frustrating and insulting’.
Lawyers interviewed were ‘almost unanimous’ in believing that CCRC work should be carried out by experienced lawyers and ‘many’ said that generalist criminal lawyers ‘did not understand appeal work or in some cases even know about the CCRC’. One said: ’The majority of lawyers don’t know how it works. They don’t do Court of Appeal work, they don’t do CCRC work. In fact, the number of lawyers I’ve spoken to who haven’t even heard of the CCRC … it wasn’t really surprising, but it was shocking.’
In a recent interview with the CCRC chair for the Justice Gap, Helen Pitcher was asked whether she supported the idea of a specialist panel of criminal appeal lawyers in tandem with an increase in legal aid rates. ‘No, I have that with my commissioners,’ she said. ‘I do not need another panel of experts. But I would like to see there being more legal aid to support our applicants.’
She was asked whether there was a danger that, in an environment where so many defence firms struggle to be viable and with so many people claiming to be victims of miscarriages of justice and struggling to find legal aid lawyers, the CCRC might end up being flooded with not very good applications written by lawyers? ‘It could be,’ she said. ‘I know a lot of criminal barristers who have been coming out of the profession because they say they cannot make a living and they are good barristers. There needs to be a serious look at what’s going on.’