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Criminal legal aid review: latest proposals are insufficient

Posted: 28 February 2020

The proposals – or ‘accelerated items’ – emerging from the criminal legal aid review published today were supposed to address urgently the deepening crisis in the criminal legal aid profession. Sadly, we believe that they are insufficient to match the scale of the problem.

A criminal justice crisis

In the past year alone large criminal defence practices – such as Rodney Warren and Co and One Legal – have become insolvent and ceased trading.

One duty scheme in the North West has already become unviable and has been merged with the neighbouring scheme.

We are also aware that a number of firms have had to close their criminal departments after their staff moved to the Crown Prosecution Service.

Our criminal justice campaign, launched last year, has highlighted the extensive problems facing our criminal justice system, and has received significant coverage in the media, in Parliament, and with the general public.

One of the most important planks of our campaign has been to secure the short-term sustainability of the criminal legal profession, specifically ensuring fair pay for criminal defence solicitors through legal aid. One of the prime reasons for the growing shortage of criminal duty solicitors has been that criminal legal aid fees for solicitors have not been increased since the 1990s.

The criminal legal aid review

We welcomed the criminal legal aid review announced in December 2018 and were encouraged that the Ministry of Justice (MoJ) accelerated some of the urgent changes required to secure the sustainability of the profession.

However, we do not believe that these accelerated proposals will do enough to secure the short-term sustainability of the profession

We’re particularly concerned about the following issues.

The 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 just 2.1-3.7%
  • The value of this package to advocates is approximately £20-£29 million – equating to 9.7-14.1% – on top of a similar sum they received last year
  • The CPS and prosecuting advocates have been given an interim increase of 10% and a promise of annual reviews, with the full review of the scheme still continuing
  • There has also been a significant cash injection for the CPS, which is now recruiting hundreds of new lawyers, the vast majority of whom are leaving defence practice to take up these roles, and cannot be replaced

We remain supportive of increased investment for the CPS and advocates, but the crisis in the criminal justice system will only be addressed with increased funding across the board. A commitment from the government to defence practitioners is vital if the system is not to be damaged beyond repair.

Sent cases and committals

The proposed fee for a Magistrates’ Court hearing in sent cases is £90. When the previous committal fee 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. There is now a substantially greater responsibility on solicitors in these cases than there was in 2011. A defendant is now expected to indicate a plea at this stage and will lose credit for a guilty plea if it’s only made later.

The solicitor therefore has to undertake all the work necessary to advise on plea, and has to accept the professional responsibility for giving that advice.

It’s disappointing to see a proposal for a fee of only £90, given that a decade ago the fee was £318, and that there is now more work involved.

Unused material

Prosecutors must provide the defence with unused material which may assist the defence. Litigators must then analyse this evidence. The new proposals are based on the current inadequate rates, rather than proposing a bolt-on that reflects the realistic cost to firms of undertaking this work.

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 payments work they do.

Cracked trials

The proposals provide for an advocate under the Advocates’ Graduated Fee Scheme (AGFS) to be paid 100% of the basic trial fee, rather than the current 85%. The rationale for this change also applies to the Litigators’ Graduated Fee Scheme (LGFS).

While the issue of cracked trial fees in the LGFS was not explicitly on the agenda for the accelerated items, we believe that the principle in respect of the AGFS should count for the LGFS as well. It’s 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.

Throughout the course of this part of the review we have engaged constructively alongside other professional organisations.

A call to action

If urgent action is not taken immediately, further collapses of duty schemes, solicitors’ firms and crime departments are inevitable, causing criminal defence services to be unavailable in some parts of the country. This will result in unrepresented defendants, cause huge inefficiencies in our courts and have clear implications for access to justice.

It’s vital that the MoJ amends the proposals, otherwise further collapses of firms will be inevitable.

We have already proposed three ways the government could improve matters, which are:

  • an across the board increase in rates
  • a higher fee for sent cases
  • alignment of the principle of paying 100% for cracked trials

The responsibilities rest with the MoJ to amend or bring forward new proposals to ensure the immediate sustainability of the profession while we wait for the final review outcome. 

How you can help

We know that criminal practitioners and the public will agree that these proposals are insufficient.