Criminal legal aid

Criminal legal aid report – key recommendations

In December 2021, the independent review of criminal legal aid, chaired by Sir Christopher Bellamy QC, published its final report.

To help you know what's been proposed, we've pulled out key recommendations that affect solicitors.

The government published its response to these proposals in March 2022, alongside a consultation.

Read our response to the consultation

Key recommendations

Starred items (*) were either in our submission to the independent review or have often been recommended by the Law Society.

An independent advisory board should be set up to advise the lord chancellor on arrangements for delivering criminal legal aid.

The board would:

  • report regularly to the lord chancellor
  • help develop a more joined-up approach to criminal legal aid in the criminal justice system (CJS)
  • be “a forum where other stakeholders, including the Home Office, police, Crown Prosecution Service (CPS), HM Prison and Probation Service (HMPPS) and the courts can discuss issues of common interest”
  • “play a central role in implementing the recommendations of the review” (paragraphs 15.4 to 15.6)

Read chapter 15 for more

Our view

We’ve been recommending this for several years, although we had hoped that any independent board would also advise on fees.

We included this in our submission to the review, and we hope the Ministry of Justice (MoJ) will take this proposal forward.

Criminal legal aid funding (for litigators and advocates) should receive an overall increase to at least 15% above present levels “as soon as possible”. 

This would represent extra funding of approximately £135 million per year.

Such an uplift would be “the minimum necessary as the first step in nursing the system of criminal legal aid back to health after years of neglect” and does not “exclude that further sums may be necessary in the future to meet these public interest objectives”.

“There is no scope for delayed implementation of this recommendation.”

Read chapters 6 and 7 for more

Our view

This is a welcome step in the right direction.

However, after a quarter of a century of freezes and cuts, it remains to be seen whether it’s enough to stem the exodus of firms from criminal legal aid, or to attract new young lawyers into the sector.

We’re glad that Sir Christopher categorised this proposed increase as the “minimum necessary”, and we share his view that more investment is likely to be needed.

Solicitors urgently need to see the benefits from these proposals, and we’re continuing to press the MoJ hard to get the money to our members as soon as possible.

The MoJ should encourage and facilitate local arrangements to improve communication between the defence, the police, the CPS and the courts, with a view to understanding common problems and finding solutions in the interests of the criminal justice system as a whole.

Read chapter 15 for more

Our view

For the criminal justice system to work more effectively, more “joined-up thinking” is essential, so is better communication about new initiatives that may impact other stakeholders.

The MoJ should consider the extent of unmet need, for example, in terms of:

  • geographical areas
  • types of user
  • communities, or
  • areas of work

It should also consider how those needs should be met, in particular by support grants to not-for-profit (NFP) or similar organisations, or other measures, with a view to pilot schemes.

The MoJ should consider training grants to support more trainees in criminal legal aid firms.

Read more in chapter 15 for more

Our view

Identifying the highest areas of unmet need is long overdue.

We welcome the proposal of training grants for trainees in criminal law. We’ve long called for this, given the difficulty that crime firms have in recruiting and retaining trainees.

We’re interested to see more detail on how supporting NFP organisations might work.

The MoJ should invest in and significantly improve the availability of data.

This would allow for a better assessment of criminal legal aid, the various fee schemes and their:

  • efficiency
  • incentives
  • costs
  • effectiveness – including how decisions in different parts of the criminal justice system affect the provision and cost of criminal legal aid

Read chapter 15 for more

Our view

We agree it’s essential that the MoJ starts collecting meaningful data on:

  • criminal legal aid spend
  • the cost of providing the service, and
  • the impact on criminal legal aid providers of decisions made in other parts of the criminal justice system

This is something we’ve been calling for.

The report sets out general principles for reforming solicitors’ remuneration schemes, mainly affecting criminal legal aid firms:

  • work done should be properly paid
  • perverse incentives should be removed, and
  • administration costs should be minimised

The magistrates’ court standard fee scheme should be used as the basic model for:

  • criminal legal aid work in the police station
  • litigation work in the Crown Court

The remuneration model should reflect the seniority of the solicitor where appropriate.

In principle, each main component of the work – namely the police station, the magistrates’ court and the Crown Court – should not rely on cross-subsidy from other work.

Read chapter 7 for more

Our view

We recommended that the government should consider a standard fee scheme in the police station and Crown Court – along the lines of the magistrate’s court scheme.

Although we support the proposal, we’d like to emphasise that such a scheme will not work without a significant injection of new funds.

We also fully support the principle that each area of criminal legal aid work should be sustainable.

We’ve often pointed out that many crime practices need to subsidise their lower crime work from large Crown Court cases, and their criminal legal aid work from their private work.

Remuneration for police station advice and assistance should be restructured:

  • along the lines of the magistrates’ court remuneration scheme
  • to reflect the seniority of the solicitor concerned
  • to phase out different rates based on individual police stations as soon as practicable

Read chapter 8 for more

Our view

We recommended moving to a standard fee scheme model for all criminal legal aid work in our submission to the review.

We also fully support the principle of rates which reflect the seniority of the solicitor concerned, in order to encourage firms to send the most appropriately qualified solicitor to the police station.

The MoJ should initiate a detailed study of the operation and effectiveness of advice and assistance in the police station, including:

  • assembling more detailed data, for example on whether suspects' take-up of such advice can be improved
  • the quality of the service given
  • the means of delivery (physically or remotely)
  • the possibility of basing duty solicitors in larger police stations
  • the use of accredited representatives and their effective supervision
  • improvements needed in training and/or accreditation, especially relating to young or vulnerable suspects, and those from a minority ethnic background

Read chapter 8 for more

Our view

In order to comment properly, we’d need to see the detail of any proposals based on these recommendations.

However, we would support any initiative that helps ensure as many people as possible take up police station advice – particularly initiatives that safeguard the interests of vulnerable clients.

All pre-charge engagement work should be remunerated, including:

  • the preparation necessary to determine whether pre-charge engagement is appropriate or not
  • work reasonably necessary to maintain contact with the police and/or the client in the period between the initial police station arrest/interview and the charging decision

This remuneration should be treated as an extension of the police station scheme.

Read chapter 9 for more

Our view

We’ve been in extensive discussions with the MoJ since late 2021, to ensure that the pre-charge engagement fee is extended to cover all of the necessary advice and assistance related to pre-charge engagement, including where pre-charge engagement does not take place.

Without seeing the specific details of how this work would be remunerated as part of the police station scheme it’s difficult to comment further.

Criminal legal aid funding should be available to remunerate discussions between the defence and prosecution before the first hearing in the magistrates' court.

This remuneration should be based on the same structure as the current magistrates' court scheme.

Read chapter 9 for more

Our view

We welcome this new proposal and look forward to seeing more detail in due course.

The MoJ should retain the existing magistrates’ court scheme, but increase remuneration in line with the general uplift in remuneration recommended.

There should be a system of higher and lower standard fees for appeals and committals for sentence from the magistrates’ court to the Crown Court.

Committals for sentence should not be remunerated at less than the equivalent remuneration for a guilty plea in the Crown Court.

Sir Christopher’s report also suggests that the amount of legal aid for a defendant committed to the Crown Court for sentence should depend on the Crown Court’s eligibility criteria rather than on the criteria of the magistrates’ court.

However, this idea is “for consideration” and is not a formal recommendation.

Read chapter 10 for more

Our view

We would support all these suggestions – noting that restructuring the scheme will not work without additional investment.

We’ve been urging the MoJ to reform the legal aid eligibility for defendants committed for sentence for some time – including as part of our submissions to the means test review.

We’d like to see this adopted as a firm recommendation.

Currently, some clients must make an unacceptable choice between:

  • credit for a guilty plea, but representing themselves for the sentencing hearing
  • losing that credit but having a solicitor to mitigate in the Crown Court sentencing

The MoJ should:

  • prioritise devoting extra resources to the Youth Court – by raising fees to the level that would apply if the case to be tried in the Crown Court
  • develop a system of accreditation with appropriate training for advocates appearing in the Youth Court, with the higher rates recommended only available to those with the necessary qualification
  • provide certificates for counsel for Youth Court appearances

Read chapter 11 for more

Our view

We agree that Youth Court work requires specific skills and experience, and should be remunerated accordingly, in order to attract sufficiently experienced lawyers.

We also welcome the proposal for a Youth Court accreditation and training, although we would need to see further details – such as what arrangements would be made for representation in rural areas where there may not be any appropriately trained or accredited solicitors.

The Litigators’ Graduated Fees Scheme (LGFS) should be restructured – on the basis of no reduction in solicitors’ remuneration overall – but to rebalance remuneration to:

  • better reflect work actually done
  • facilitate the recommended general increase in fees

There are several recommendations for restructuring the LGFS, all based on the principle of lower, higher and non-standard fees used in the magistrates’ court.

Different fees would apply to different classes of offences set out in the LGFS table of offences, which would be simplified as appropriate.

Read chapter 12 for more

Our view

We agree the current fees scheme is no longer fit for purpose, as it was designed around 15 years ago.

A standard fee scheme in the Crown Court is a principle that we could support, although this would need to have enough flexibility to account for the varied and often highly complex work in the Crown Court.

Advocates’ remuneration under the Advocates’ Graduated Fees Scheme (AGFS) should be increased overall by £35 million (15%), to include both barristers and solicitor advocates.

This would be done partly through an overall increase in fees, and partly through a restructuring of the AGFS as recommended below.

Read chapter 13 for more

Our view

We agree all the fee schemes are in dire need of extra investment, which – as stated above – cannot come soon enough if a crisis in the criminal defence community is to be averted.

Sir Christopher does not feel that the ‘standard fee’ approach recommended for the other areas of defence work is appropriate for the Advocates’ Graduated Fees Scheme (AGFS). This may be because the AGFS has been restructured far more recently than the LGFS.

Instead he proposes specific improvements to the scheme, together with the increase in funding.

Fees

  • The relationship between the brief fees for different offences should be reviewed  to determine whether fees adequately reflect the gravity and complexity of more serious cases
  • Fees for special preparation and considering unused material should be increased
  • Possible enhanced payment for fixed fees under the AGFS
  • Fees for confiscation matters should benefit from the general uplift in a way that sufficiently incentivises advocates to take on this work

Flexibility on preparation and payment

  • Where an advocate cannot attend a trial through no fault of their own, they should be able to claim for the wasted preparation in all cases where this exceeds two hours
  • Advocates should be able to claim for work reasonably undertaken (and receive payment within 90 days) without having to await the trial’s conclusion
  • Provisions on special preparation should be more flexible so that work that's reasonably done be properly remunerated

Read chapter 13 for more

Our view

We agree in particular with the proposals in chapter 13 regarding “special preparation”. This clearly needs to be redefined or completely overhauled, as it's currently not fit for purpose.

As with the other recommendations on structural changes, we look forward to seeing more detail in due course.

Appeals, prison law, high-cost criminal cases and experts’ fees

Renumeration for the following should increase overall in line with the increases recommended elsewhere:

  • appeals
  • prison law
  • very high-cost criminal cases (VHCCS)
  • experts’ fees

Remuneration for advice and assistance should be restructured with lower, higher and non-standard fees for:

  • Criminal Cases Review Commission (CCRC) work
  • prison law

The regulations for Interim Fixed Fee Offers in VHCCs should be amended to clarify the statutory basis and provide a mechanism for dispute resolution.

Read chapter 14 for more

Our view

The majority of the recommendations in chapter 14 seem reasonable.

However, in relation to VHCCs, the discrepancy between barristers’ and litigators’ fees is pointed out in several places. Since 2014, litigators’ fees have fallen by over 35%, yet over the same time, average barristers’ costs have risen by 278%.

In paragraph 14.31, the report suggests bringing VHCC cases within the updated framework of fees proposed elsewhere in the report, but stops short of making this a recommendation.

We would like to see further work on VHCCs, but the priority has to be the work done by the majority of our members undertaking criminal legal aid.

The Legal Aid Agency (LAA) should work with the MoJ, solicitors’ representatives, the Bar Council and the Bar Standards Board, to investigate and address:

  • why the gender balance for duty solicitors favours male solicitors
  • differences in the publicly funded incomes earned (and work undertaken) by criminal legal aid barristers of different genders or ethnicities
  • whether further support for young barristers after pupillage is appropriate to increase diversity within the profession

Read chapter 15 for more

Our view

We support all these recommendations, particularly as one of the review’s main aims was to consider how to improve diversity within the professions.

The Legal Aid Agency and MoJ should review the provisions on accepting chartered legal executives (CILEX members) as duty solicitors.

Read chapter 8 for more

Our view

We’re considering how to respond to this recommendation.

The Legal Aid Agency (LAA) should:

  • reframe its primary objectives to support a resilient criminal legal aid system and reduce unnecessary bureaucracy
  • review its procedures in order to simplify and reduce administrative burdens where proportionate
  • review its staff training programmes with a view to implementing a more flexible approach to claims for reimbursement, while mindful of the need to reject unreasonable claims and safeguard the taxpayer

Areas the LAA should particularly consider include:

  • the Defence Solicitor Call Centre
  • how the police station scheme works
  • the 14-hour rule
  • earlier payment of advocates’ fees
  • reimbursement of experts’ fees in the Magistrates’ Court

Read chapter 15 for more

Our view

We fully support any recommendation that will help to:

  • reduce bureaucracy for our members
  • make it easier for solicitors to claim their fees without disagreements

We look forward to working with the MoJ and LAA to implement these proposals.

You can read a detailed summary of Sir Christopher’s key recommendations in chapter 16 of the report.

Other Law Society recommendations / views adopted in the report

Sir Christopher’s report also rejects the idea of:

  • competitive tendering: “I do not think such a model would now make sense” (paragraph 7.9)
  • expanding the Public Defender Service – we agree with this, noting that the present system is “sound in concept but suffering from severe underfunding”

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