Criminal defence sector faces collapse without investment

A pillar of our criminal justice system could topple if increased government investment is not finally forthcoming, the Law Society of England and Wales warned as it submitted its response to the Independent Review of Criminal Legal Aid’s call for evidence.

“The criminal defence profession is a pillar of our criminal justice system, which could topple if increased government investment is not finally forthcoming,” said Law Society president I. Stephanie Boyce.

“Criminal legal aid firms are closing their doors and the ageing body of criminal defence solicitors is not being replaced with younger lawyers who are turning away from this area of work. Vast swathes of the country face a future with few or no duty solicitors on call to represent defendants, with adverse consequences for victims, witnesses and the effectiveness and efficiency of the criminal justice system.

“If defence solicitors are not supported now, they will not be there when justice is needed in the future, leaving victims in limbo and the accused potentially deprived of a fair trial.

“Those accused of serious crimes could find themselves unable to access a solicitor to represent them in a police interview or at court, risking miscarriages of justice, while there is the potential for people who are in fact guilty not being convicted for want of a fair trial.

“As the lord chief justice has made clear, it is absolutely vital for the rule of law and the administration of justice that a vibrant and capable criminal defence community is maintained.*

“The review must recommend that the government provides the investment needed to ensure the long-term sustainability of the sector and must do so before it is too late.”

Our response sets out the key problems facing criminal legal aid firms including:

  • Underfunding
    Not only has there been no cost of living increase in criminal legal aid rates since the 1990s, but there was an 8.75% cut to fees in 2014
  • Shortage of trainees and young solicitors
    There is a dearth of young solicitors willing to go into criminal law because of the low fees. Despite it being vocationally of interest, students saddled with debt opt for more lucrative areas of the law
  • Reduced numbers of duty solicitors
    Our duty solicitor heat map from 2018 showed that in five to 10 years’ time there could be insufficient criminal duty solicitors in many regions, leaving individuals in need of legal advice unable to access justice**
  • Reduced number of criminal legal aid firms
    The impact of the lack of any fee increase for over 20 years has also manifested itself in an increasing number of crime firms leaving the market:
    • in 2010 there were 1,861 criminal legal aid firms
    • in 2019 there were 1,271
    • in June 2020 there were 1,147, and
    • the latest figures published in April 2021 show 1,090 firms
  • Competition for staff
    Other government-funded organisations such as the Crown Prosecution Service (CPS) are able to offer considerably higher salaries and benefits to both newly qualified and experienced solicitors than private criminal defence firms

“Restructuring fee schemes could lead to potential savings of time and money in the system overall, by supporting work to achieve early resolution of cases and narrowing the issues in those that proceed,” added I. Stephanie Boyce.

“But ultimately, the defence profession in England and Wales will not survive without additional investment after a quarter of a century of austerity.

“Potential areas for investment include increasing basic fees; a government funded training grant for those wishing to pursue a career in criminal legal aid; annual uprating of fees and an independent fee review board to review and set fees annually.”

Notes for editors

Read our response in full

*Lord chief justice’s evidence to the House of Lords Constitution Committee on 26 May.

**The diminishing number of duty solicitors has meant that 32 schemes now have seven or fewer duty solicitors on them – seven duty solicitors being the minimum number that requires each individual to be on duty one twenty-four hour period in every week. Seven of these schemes have three or fewer duty solicitors.

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