The future of criminal legal aid

As the Covid-19 pandemic pushes the criminal case backlog to the brink, criminal legal aid (CLA) lies in tatters. Subjected to relentless cuts since the introduction of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), the sector has struggled to stay afloat.

While the Criminal Legal Aid Review is currently examining the sector’s sustainability and seeking ways to modernise it and improve its efficiency – those in the sector say that urgent change is required now. This has been echoed by Shadow Justice Secretary David Lammy who stated that the problems caused by LASPO must be tackled urgently.

Meanwhile, the government’s recently published data compendium revealed just how serious the situation is. For the time being, the future of CLA seems worryingly precarious.

The Independent Criminal Legal Aid Review

Back in 2018, the Ministry of Justice (MoJ) announced that it would be embarking on a comprehensive review of CLA. This came in response to serious concerns around the sustainability of the sector and fierce complaints about the low pay offered for CLA work. Specifically, the MoJ had two aims here, to conduct a wide-scale review of all the fee schemes, as well as examining reform for the wider CLA market.

However, when little change ensued, those within the sector applied pressure on the MoJ to introduce improvements before the end of the review. Responding to concerns from across the sector, the MoJ announced its “accelerated items”. This included injecting an additional £35 –

51 million per year into CLA. Still, those within the sector determined that the cash injection was not enough to warn off further damage or secure short-term sustainability for the profession. Ultimately, the amount offered was deemed “woefully inadequate”. Meanwhile, the London Criminal Courts Solicitors’ Association (LCSSA) argued the measures were “the equivalent of [justice minister] Robert Buckland trying to put a sticking plaster over a broken leg”.

The second phase of the review was launched in January 2020, led by former judge Sir Christopher Bellamy. It set out to examine the long-term sustainability of the market, as well as funding, transparency and efficiency.

Reflecting on the review’s proposals, the Law Society’s president Simon Davis, said: “A profession which was already perilously underfunded before the pandemic – with defence firms sinking at an alarming rate – has been plunged into even choppier waters by Covid-19…The future of the criminal defence profession is at stake and there is an urgent need for further government investment”. Bar Council chair Amanda Pinto QC added: “This money is desperately needed and long overdue for criminal legal aid barristers… We are pleased that, at last, barristers are paid for work they are obliged to do to prepare cases properly for court.

“Nonetheless, the rates of pay must be revisited as part of the wider independent review, which we look forward to engaging with, to ensure the sustainability of this vital provision. Without further support from the government we fear that this great public service will disappear.”

Concerning statistics

The data compendium published on the government’s website back in February only cemented concerns about the sector.

The data collected from the Law Society, Bar Council, Crown Prosecution Service (CPS) and Legal Aid Agency, revealed that while the number of CLA firms in the year 2014/15 stood at 1,510, by 2019/2020 this number had fallen to just 1,220. The Law Society also highlighted that in the last ten years, 750  CLA firms have either shut up shop or “given up practice”. This equates to approximately 75 firms leaving the market each year over the last ten years. The total number of solicitors working in CLA has also significantly decreased. While in 2014/15 there were 14,790 CLA solicitors by 2018/19 there were a mere 11,760.

Elsewhere, the report also uncovered some interesting facts about the age of those leaving the CLA sector. Of the 2,800 solicitors who said goodbye to CLA work in 2018/19, a total of 57% were below the age of 45. Meanwhile, the data highlighted that as of 2019, only a few duty solicitors were below the age of 35 (9%).

Speaking about the statistics in the data compendium, chair of the Criminal Bar Association, James Mulholland QC, expressed his fears around the number of practitioners entering and staying in the CLA sector. “Forty-five per cent of full practice criminal barristers are 45 years old and over. The average age of a criminal duty solicitor across England and Wales is 47,” he said. He went on to call CLA practitioners a “disappearing profession”.

This is of course extremely concerning considering the huge criminal case backlog which now stands at over 56,000 in the Crown courts and 474,220 in the magistrates’ courts.

Legal aid “cannot wait”

While the review is set to report its recommendations later this year, many within the legal sector have argued that CLA can’t afford to wait.

In January, Richard Miller, the Law Society’s head of justice, spoke to the Commons justice select committee and stressed that many firms are already on the brink. “This system is struggling. Somehow or other it still managed to keep coverage, just. But there is a real concern that if we see no further improvement before this report at the end of this year, and implementation time after that, it’s going to be too late for many firms”.

He subsequently recommended to MPs that they adopt a “Scotland-style” emergency uplift for legal aid fees. Miller outlined that the Law Society wanted “an interim across-the-board increase in rate”. This, he said, would stop the situation from “getting worse” while enabling them to “look at the detail of what’s needed to make it sustainable in the longer term”.

Law Society of England and Wales president David Greene commented: “While the second part of the criminal legal aid review is now underway and will hopefully provide the structural increase in resources needed for the long-term sustainability of the sector, any benefits from it are some way off”.

He added: “We have consistently called on the government to recognise the consistent failure to increase payments for over 20 years and that an immediate increase is a necessity to provide criminal defence solicitors with the additional funds they so desperately need. The government must demonstrate it is committed to ensuring the position does not deteriorate further while they work out how to address the crisis”.

Shadow Justice Secretary David Lammy also echoed these sentiments at the recent Legal Aid Practitioners Group conference. Reflecting on the impact that LASPO has had on the sector, he called the legislation an “unmitigated disaster”. In addition to this, he commented on the shocking findings in the data compendium, and emphasised that it showed there was an “urgent problem” and it “cannot wait” for a new government. He added that he was “praying and hoping” that Justice Secretary Robert Buckland would deliver, and stated: “I’m not sure we will have much to save if we wait another four years”.

It is clear that urgent relief is needed in the CLA sector, and unfortunately, “praying and hoping” won’t change a thing. Right now, the sector is economically unstable and it needs a significant and immediate cash injection to prevent it from further crisis and collapse.