A review of criminal legal aid has called for an injection of £135m a year as a ‘minimum’ first step to ‘nursing’ the system back to health after ‘years of neglect’. Sir Christopher Bellamy QC’s Criminal Legal Aid Review (CLAR) makes the case for funding for criminal legal aid to be increased for solicitors and barristers as soon as possible to an annual level of ‘at least 15%’ above present levels and raises issues to do with quality of advice as firms do the ‘bare minimum’.
‘I do not see that sum as “an opening bid” but rather what is needed, as soon as practicable, to enable the defence side, and thus the whole CJS to function effectively, to respond to forecast increased demand, and to reduce the back-log,’ Sir Christopher writes. The CLAR was established in 2018 by the then Lord Chancellor David Gauke to reform funding to ‘fairly reflect, and pay for, work done’ and support ‘the sustainability of the market’.
The review identifies ‘strategies’ that defence firms adopt to deal with sector’s problems, including dropping time-consuming cases, outsourcing work and doing ‘the bare minimum’. ‘Thus, at the police station, where a simple shoplifting case is paid the same as a murder, it is more profitable to take several of the former than to spend many hours or even days on the latter,’ the review said. ‘None of the above can be described as delivering an acceptable criminal legal aid service, from the point of view of suspects, defendants, or indeed victims, or the public interest,’ Sir Christopher wrote. On the positive side, he noted firms had ‘increased efficiency’ and overheads had been reduced to a minimum. ‘But essentially the system has survived so far because of the dedication of the professionals currently working within it. That is unlikely to last much longer.’
The report notes that spending on criminal legal had fallen to £841 million in 2019/20 from a peak of £1.2 billion in 2004/05 which represented a decline in real terms of around 43%. Problems in the sector have been caused by the fall in the number of cases entering the justice system as a result of fewer arrests being made by the police. ‘However, following the Government’s recent policy of recruiting more police officers, and the drive to reduce the Court backlog that has grown during the pandemic, demand for criminal legal aid is now expected to increase,’ CLAR notes.
Sir Christopher pointed to ‘a significant imbalance’ between the resources available to the defence compared to the prosecution ‘undermining the principle of equality of arms’. ‘Criminal legal aid firms can neither attract sufficient new blood, because the fee levels restrict the salaries that can be offered, nor retain experienced practitioners because of the higher salaries offered by the CPS,’ he said. ‘Fee levels have been cut, and there has been no increase for many years. In real terms fees have declined by about one third from 2008, and many fees have remained the same for 25 years. Profits too have declined, to a level well below those in other areas of legal practice and are at present unlikely to incentivise new investment in the sector or compensate the business owners for the risks to which they are exposed.’
The dire state of parts of the defence profession is a result of freeze in legal aid rates going back two decades as well as a huge 14.5% cut in 2014 for solicitors. CLAR notes some solicitors have not received an increase for 25 years in some cases. ‘Many of the rates, for example in the Police Station and Magistrates’ Courts, are lower now, even in cash terms, than they were in 2008 or even in the 1990s,’ the review states. ‘It is difficult to see how this situation can be sustained.’
Sir Christopher calls for an advisory board. ‘The schemes tend to be “set in aspic” and have difficulty in keeping up with either the needs of the CJS, or the changing concerns of providers,’ he explained. Such a group would not be a ‘pay review body’ but a forum in which ‘the overall functioning of the system can be kept under review’ and, in that context, issues of remuneration ‘may well arise’.
The review looked at the sustainability of the profession. A career in criminal defence work was ‘not for the faint-hearted’, the report asserted . ‘… if those able and willing to undertake this work cannot aspire to even reasonable remuneration, the pipeline of new blood naturally dries up.’ The review said the issue was ‘not just a question of remuneration, although that is a most important aspect: it is also a question of morale’. ‘A feeling that “nobody cares” and “criminal legal aid has no future” was often articulated to me in roundtables in both Wales and England,’ it added. The review charted the decline in the profession from 1,861 solicitors firms in 2010, as recorded by the Law Society, to 1090 in April this year.
The ‘bare minimum strategy’
The review posted the ‘obvious question’ asking ‘if things are so bad, how has the sector survived so far, and are not some providers at least making a reasonable living?’ According to the review, the following strategies were adopted:
(i) Do the bare minimum. ‘Thus, at the police station, where a simple shoplifting case is paid the same as a murder, it is more profitable to take several of the former than to spend many hours or even days on the latter. In the Magistrates’ Court, juggling half a dozen cases in a day “on the hoof” may be profitable but whether that allows time for preparation and considered advice to defendants is another matter. A consistent theme of the evidence from those working in solicitors’ firms was that they often felt under pressure to do the bare minimum, when it would have been in the client’s best interests to spend more time on the case.’
(ii) Avoid time consuming cases where the fee is minimal.
(iii) Rely on a small number of high page count cases under the LGFS to make up for losses on other work.
(iv) Outsource work, for example to accredited police station representatives, use outside consultants (to avoid employment costs) and at least in London instruct junior barristers in the Magistrates’ Court at very low rates.
(v) Work longer hours. The evidence to the Review is that working long hours and/or through the weekends is a principal route to survival in a criminal legal aid firm. A duty solicitor clocking up 30 hours work in a 48-hour period seems not uncommon. A 60-hour week was quoted in roundtables. (vi) Pay lower salaries and accept lower quality.