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Calculations for criminal legal aid trial fees could be a big minus for justice

12 October 2018

The crisis in the criminal justice system is so acute an independent review into the economic sustainability of legal aid is vital - for both trial preparation and representation in court - to stop the exodus of criminal lawyers from the profession, the Law Society warned today.

Commenting on Ministry of Justice (MoJ) proposals for reforms to the Advocates' Graduated Fee Scheme (AGFS) - a payment scheme for advocacy in serious criminal cases, such as robbery, rape and murder - Law Society president Christina Blacklaws said: "We welcome the recognition that more money is needed. But the £15m that the MoJ is proposing to invest will not reverse the current recruitment and retention crisis among solicitors and barristers specialising in criminal law."

The Law Society commissioned a detailed evaluation of the proposals and additional data provided by the MoJ and has serious concerns regarding the amount and distribution of the additional expenditure.

Christina Blacklaws added: “The MoJ intends to put £15m into AGFS. However, the MoJ’s own impact assessment shows that the value of the package varies from year to year. Although it is worth £15m inclusive of VAT on 2016-17 data, it is only worth £8.6m on the 2017-18 data.

“Struggling junior bar and solicitor advocates will have little incentive to continue a career in criminal law under these proposals.

“Criminal legal aid lawyers are critical for ensuring that anyone accused of wrongdoing has a fair trial. But soon there will not be enough young lawyers entering the field of criminal law and many of those who have the training and experience no longer see a viable career doing criminal legal aid work.

“Any additional resources need to be used to mitigate the retention crisis in criminal legal aid – which is the stated policy aim of this proposal. There is a desperate need to increase the litigators fees as well.”

    The Law Society’s key concerns with the proposals are:
  • the actual value of the proposed package to the profession is highly dependent on assumptions about case types and volumes of work, which vary considerably from year to year
  • the allocation of the additional funds is made in a way that fails to incentivise early preparation of Crown Court cases
  • our analysis shows that the 1% of AGFS bills submitted by QCs will attract over 13% of the new funding available

Christina Blacklaws concluded: “Solicitor advocates undertake vital work and we are pleased the MoJ has acknowledged the need to engage with all relevant stakeholders to address the ongoing crisis.”

Notes to editors

Read our consultation response.

The headline expenditure figure of £15m includes VAT, which means 20% of the additional funds will in fact go back to the Treasury.

The Law Society’s independent analysis was conducted by professor Abi Adams, department of economics at Oxford University.

Our analysis shows that changes in case mix have a profound impact on the value of the package.

A Justice Select Committee report, published during the summer said cuts to criminal legal aid are tarnishing the reputation of the justice system and denying people basic legal advice when they most need it.

Speaking to an American University audience in late September, Supreme Court Justice Lord Wilson said: “Access to justice is under threat in the UK. Our lower courts are now full of litigants who have to represent themselves, often of course very ineptly. In our own court very able advocates still regularly appear. But, particularly when they are asserting human rights against a public authority, they nobly appear pro bono, or for a small fee under the attenuated legal aid scheme; and it constantly offends me that it should be necessary for them to do so.”

In May, the Law Society published data showing that in 5 to 10 years’ time there could be insufficient criminal duty solicitors in many regions across England and Wales, leaving individuals in need of legal advice unable to access justice. These concerning statistics underline the need for reasonable payment for this challenging work.

About the Law Society

The Law Society is the independent professional body that works globally to support and represent solicitors, promoting the highest professional standards, the public interest and the rule of law.

Press office contact: Catherine Reed | 020 7320 5764