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Criminal legal aid: Welcome boost for trial fees must be matched across system to avert crisis

26 November 2018

Support for criminal legal aid trial payments must be balanced by boost for case preparation work to ensure survival of the criminal defence profession.

Ministry of Justice (MoJ) plans to increase expenditure on a payment scheme for trial fees in serious criminal cases, such as robbery, rape and murder are a helpful first step in addressing the crisis in criminal legal aid, but the survival of defence solicitors is still at stake, the Law Society said today.

Commenting on a government decision to improve fees for defence advocates, Law Society president Christina Blacklaws said: “Criminal legal aid lawyers - solicitors and barristers - are critical for ensuring that anyone accused of wrongdoing has a fair trial.

“We are pleased the MoJ has acknowledged the concerns we raised in our response to its consultation and has considered the analysis we commissioned from Professor Abigail Adams. The Ministry has not only made the changes the Law Society asked for, it has also agreed to bring forward the across the board 1% increase in rates.

“However, advocacy in the Crown Courts is only one small part of the system. In light of the government’s plan to increase the expenditure on advocacy, we would urge the MoJ to restart discussions to try to formulate a revised approach to the Litigators Graduated Fee Scheme (LGFS), as well as the fees paid for work undertaken in the magistrates’ court and police station to ensure solicitors are fairly paid for the work they have to do.

“There is a desperate need to increase fees for all of this other work if we are to have any hope of avoiding the imminent extinction of the criminal defence solicitor in some parts of the country.

“Defence solicitors have had no pay rises for over 20 years and this is driving more and more of them away from criminal defence work. Our data shows a looming crisis in the numbers of criminal duty solicitors. The mean average age of a criminal duty solicitor across the whole of England and Wales is 47, and in many regions the average age is even higher. 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.

“Solicitors urgently need ministers to give this crisis the same constructive attention as they have to the serious problems in relation to advocacy payments, the Flexible Operating Hours pilot – which now excludes criminal courts – and the rules surrounding disclosure of evidence.”

Christina Blacklaws concluded: "A thorough, independent review of the long-term viability of the criminal legal aid system is critical to ensure there is a stable supplier base of defence lawyers, to safeguard the rights of the vulnerable and to protect the reputation of our legal system."

Notes to editors

The Law Society’s independent analysis was conducted by professor Abigail Adams, department of economics at Oxford University. Our analysis showed 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 five 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 | 0203 189 1880