Be prepared for justice to fall apart - solicitors issue stark warning to government

The criminal legal aid system is doomed to spiral into ever greater crisis unless the Ministry of Justice’s plans are urgently rethought, the Law Society of England and Wales warned today.

The Law Society had hoped that the interim proposals from the criminal legal aid review – the ‘accelerated items’ – would provide some urgent relief from the deepening crisis in the criminal legal aid profession.

Today the Law Society rejected any suggestion they are adequate to match the scale of the problem.

Law Society president Simon Davis said: “We have warned time and again that the very existence of criminal defence practitioners is under threat. Unless the package is adjusted to address the depth and urgency of this crisis, then extinction may be firmly on the horizon.

“There are increasingly large areas of the country where there are no defence solicitors available. The very notion of British justice is in jeopardy – with victims left in limbo and the accused potentially deprived of a fair trial.

“Not only will the shortage of practitioners lead to injustice; it is economically unsound. Defence lawyers help ensure the justice system runs efficiently – and in doing so, save the taxpayer money.”

The closure of Carter Moore this month – the latest in a growing number of significant firms to shut its doors – is further evidence that the profession cannot wait. Our heatmap shows how the numbers of criminal duty solicitors are diminishing.

The Crown Prosecution Service (CPS) has recently received an interim increase of 10% for prosecutors – worth up to £85m - with a promise of annual reviews. In contrast, the defence has not received an increase in 25 years. In real terms, these measures do not even restore the position for litigators at the time the review was announced in 2018.

Simon Davis continued: “The offer on the table from the government is woefully inadequate. It cannot hope to provide a solution.

“Fewer new solicitors are choosing to enter criminal law as opting for other areas of legal practice is simply more sustainable as a career choice.

“Meanwhile, a recent boost in funding for prosecutors means that many defence lawyers are taking jobs with the Crown Prosecution Service.

“This further diminishes the pool of those capable and able to provide for the defence; a crucial ingredient to ensure that our adversarial system of justice acquits the innocent and convicts the guilty.

“We have demonstrated the urgent need for greater action. The MoJ must overhaul its proposals to reflect the scale and speed of action that is required.

“Firms are withdrawing and collapsing as we speak - in greater numbers than ever before. This may only be an interim plan, pending the full review into the sustainability of the system, but investment is needed now - not in a year’s time.

“The government has an opportunity to pull us back from the brink by improving this package. I hope they choose to take it.”

Notes to editors

  1. The criminal legal aid review was announced by the Ministry of Justice in December 2018 as a comprehensive review of criminal legal aid fee schemes.
  2. Response to key proposals:

    Total value of the package - the value to litigators is £12-£21 million. In percentage terms (based on July-September 2019 data) this equates to 2.1-3.7% for litigators after 25 years without even an inflationary increase.
    Sent cases and committals – The government has proposed a set fee for a Magistrates’ Court hearing in sent cases of £90. When the previous committal fee (for a broadly similar process) was abolished in 2011, it stood at around £318. There was no valid case for its abolition at that time. The work involved in committals had not gone, it had simply been moved, and no other fees were increased to reflect this fact.
    Unused material – prosecutors must provide the defence with unused material which may undermine the prosecution or assist the defence. Litigators analyse this evidence. The new proposals – of 1.5 hours’ work at special preparation rates for 0-3 hours - do not reflect realistic cost to firms of undertaking this work, because it is based on hourly rates that are lower than the rates applied in the 1990s.
    Review of disclosure – The attorney general’s review of disclosure has been published but we await proposals as to how defence lawyers will be paid for additional work they are being asked to do.
    Cracked trials – an advocate under the Advocates’ Graduated Fee Scheme (AGFS) will, under these new proposals, be paid 100% of the basic trial fee, rather than the current 85%. The rationale for change applies equally in respect of the Litigators’ Graduated Fee Scheme (LGFS). While the issue of cracked trial fees in the LGFS was not explicitly one of the topics on the agenda for the accelerated items, the decision represents a change in the principle underpinning the payment schemes, and not an adjustment to reflect changes in the work required on cases. We believe that the principle in respect of the AGFS should count for the LGFS as well. It is more likely, not less, that a litigator will have undertaken most of the work of a basic trial for a case that cracks. Litigators must then be equally compensated.
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