The miscarriage of justice watchdog has called for an increase in legal aid fees for lawyers conducting appeals work as the barristers’ strike entered its second week. The Criminal Cases Review Commission (CCRC) has published its submission to the independent Criminal Legal Aid Review highlighting ‘the dangers’ posed by ‘inadequate levels of representation’ during police investigations and trials with ‘the serious risks of miscarriages of justice occurring as a result’.
The watchdog also flagged ‘poor (or no) representation’ in police interviews, ‘incomplete requests for disclosure’ and ‘ill-informed guilty pleas as obvious causes’. ‘[These] created more issues for resolution in the appellate courts and by the CCRC,’ the CCRC says. ‘We consider that there is a strong case that better investment at first instance would be repaid by a reduction in the higher costs of appellate work. This in turn will increase efficiency, strengthen public confidence in the legal system and most importantly, avoid miscarriages of justice.’
When first established in 1997, the CCRC’s line was that it stood outside of the adversarial process and didn’t require or encourage applicants to be legally represented. However, unsurprisingly, it soon became obvious that those applicants supported by lawyers fared better. According to a 2008 study, 82% of represented applicants got their cases past first ‘screening’ stage compared to only 50% of unrepresented applicants. It was then reckoned that only one in four applications made to the CCRC is supported by a lawyer however the crisis in legal aid has left those claiming to be victims of miscarriages of justice with little chance of finding a lawyer willing to take their case unless they could pay privately.
The CCRC now reports that now 95% of applicants are from people without legal representation and four out of 10 applications come from people ‘who still could, and in most cases should’ appeal directly to the courts. ‘Well-structured CCRC applications made by legal representatives, help speed up the review process and reduce the administrative burden – for example, by ensuring that usual appeal rights have been exhausted by an applicant or that exceptional circumstances are clearly identified.’
‘The vast majority of our applications now come from people who are not legally represented,’ commented CCRC chair Helen Pitcher OBE. ‘An increase in fees for CCRC work is in line with the Government’s aspiration of attracting new and suitable legal providers. Just as important, it will help ensure the retention of existing ones who have experience in this area of work.’
On the government’s plans to increase fees for litigators conducting CCRC work by 15% which is at the centre of the ongoing industrial action, the CCRC agrees with concerns expressed by the Law Society that this was ‘the barest minimum increase’ and ‘an immediate starting point only’. The watchdog added that the increase would not address ‘significant defects’ in the present system of payments. Those defects include: ‘the absence of any funding for case assessment by legal representatives, the absence of enhanced rates for complex cases that inevitably require handling by more experienced practitioners, serious concerns regarding the losses sustained by undertaking associated unremunerated work as well as the disruption to cashflow that results from long delays in the payment of disbursements and fees. The CCRC advocates reforms that will address these issues too’.
A 2021 study by Sussex University, which reported that only one in 10 applicants to the CCRC is now represented by a lawyer, argued that the CCRC is increasingly faced with ‘poorly expressed, underprepared and often misguided applications’ which was adding to its ‘already substantial workload’. ‘Although the CCRC would not accept that a case is more likely to be referred just because an applicant has the benefit of legal representation, we have repeatedly recognised the value of timely, focussed and candid submissions by practitioners,’ the CCRC says. ‘Such submissions focus on salient issues and ensure that usual appeal rights have been exhausted – or that ‘exceptional circumstances’ are readily identified. Further we recognise that useful inquiries can be made by practitioners and that witness statements and expert reports can help frame submissions. These may remove the need for the CCRC to conduct similar work. Legal representatives can also enhance submissions by making relevant inquiries with previous representatives regarding professional conduct at trial and appeal, explore post-conviction matters and give advice on waiving legal privilege. The CCRC therefore agrees with the professions that well-structured applications save the CCRC time and money. Well-formulated applications made by legal representatives undoubtedly speed the review process up and reduce the administrative burden.’
The CCRC’s submission draws on input from ‘stakeholders’ – mainly defence lawyers including members of the Law Society, Criminal Appeal Lawyers Association, and the London Criminal Court Solicitors Association (LCCSA). According to the CCRC submission (here): ‘Over the years in which levels of legal representation in CCRC applications have declined, practitioners have reported experiencing an unacceptable level of bureaucracy and inconsistency in funding decisions. In particular, practitioners have complained that the uncertainty created by the funding process makes it impossible to reliably forecast income from CCRC cases. These financial risks understandably deter firms from taking more CCRC work.’
It continues to note: ‘Other firms have drastically reduced the amount of CCRC work or have withdrawn from doing so completely. Notwithstanding unease about the low rate of pay, the CCRC is particularly concerned that remuneration for work done and disbursements, if paid, only comes at the end of a case. The nature of the work involved in investigating miscarriages of justice is usually painstaking, detailed and in the most complex cases, that work may span several years. In this climate, any substantial volume of CCRC work will obviously jeopardise a firm’s viability.’