Shining a light on criminal legal aid
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Marc Bloomfield
Description: Central London Criminal Court and skyline (TheOtherKey_Pixabay)
On 15 December 2021, the lord chancellor made public the highly anticipated final report of the Independent Review of Criminal Legal Aid (CLAR). First announced in October 2020, it formed the final part of the three-year criminal legal aid review. Chaired by Sir Christopher Bellamy QC, the review commenced its work in January 2021 and presented its report to the lord chancellor in November. The government’s response and consultation are expected by the end of March 2022.
The report’s reception has been mixed. The Criminal Law Solicitors’ Association (CLSA) and the London Criminal Courts Solicitors’ Association (LCCSA) have praised its analysis of the state of the criminal justice system. A number of their suggestions in relation to magistrates’ court fees have been adopted as proposals, and the amounts discussed, while not enough, are a positive starting point. By contrast, the criminal bar has been vocal that recommendations don’t go far enough (see below).
All, however, agree on the need for investment to be made immediately. If the consultation is published at the end of March, and runs for the standard eight-week period, it will take us past Easter and further delay. The Ministry of Justice (MoJ) will want to consider the consultation in detail and is likely to report in the autumn at the earliest. Practitioners across the board are concerned that no real change will be implemented until next year. After years of underinvestment, cuts and the pandemic, to make a difference, change is needed now.
The review looked at the sustainability of criminal defence, and recruitment and attrition rates, and asked whether defence firms are able to pay salaries and create working conditions sufficient to attract good candidates. It asked whether the return made on criminal legal aid work is sufficient to make it worthwhile for firms to pursue. Spoiler alert: with salaries up to 15 per cent lower than those at the Crown Prosecution Service (CPS) and profit margins for firms between zero and five per cent, it concluded in both instances that it was not.
Sir Christopher explained his thinking at some length to the Justice Select Committee in an evidence session on 18 January 2022 (Oral evidence: The future of legal aid: the Independent Criminal Legal Aid Review, HC 70). He highlighted the ‘parlous’ state of the solicitors’ side of the profession, adding that ‘fees have remained unchanged for 14 years, except to go down by 8.75 per cent. Some fees have had no increase for over 30 years. The number of firms is in decline. It is very difficult to recruit new blood. There are almost no trainees. The duty solicitor scheme is in deep trouble in various parts of the country’.
At the bar, by contrast, Sir Christopher pointed to a high demand for criminal pupillages and lower levels of attrition. A decrease in workload has led to some barristers leaving, but, citing the data provided to the review, Sir Christopher noted that numbers at the bar remain high. He added that significant investment has already been made by way of the litigators’ graduated fee scheme and despite the impact of the pandemic, the situation at the bar is arguably less critical than that facing firms.
The report tells us that demand on the criminal justice service is expected to rise following the recent recruitment of more police officers and the drive to reduce the courts backlog. The MoJ has forecasted a substantial increase in workload by 2025/26, which would approximate to an expenditure increase of some 13 per cent at current rates (para 1.21, page 6). This increase was essential to the thinking of the review. In the Justice Committee evidence session, Sir Christopher echoed legal aid commentators over the past decade, and pointed to a much weakened system. Without substantial investment, he noted that it will not be able to cope with this future demand.
Specifically, investment should be increased overall for solicitors and barristers alike as soon as possible by at least 15 per cent – in broad terms, additional funding of about £135m (para 1.37, page 10). This is seen as the bare minimum necessary for the first step in the recovery of the system and recommended as soon as practicable. Compare this with the figures prepared for the All-Party Parliamentary Group on Legal Aid’s Westminster Commission: a reversal of the 8.75 per cent cut would cost approximately £60m per annum (Inquiry into the sustainability and recovery of the legal aid sector, October 2021, recommendation B, page 23). If 2011 is taken as a baseline for calculating inflation, £224m is required to ensure criminal legal aid fees reflect the increased costs of delivering services (recommendation A, page 23).
In terms of investment, the CLAR report adds that the money is to come (at least in part) from ‘parallel significant changes to the system of criminal legal aid, to drive greater efficiency and control costs’ (para 1.40, page 10). Of that sum, an estimated £100m has been recommended to generally uplift the fees at criminal legal aid firms, ‘better to enable criminal legal aid firms to invest in recruitment, compete for talent, maintain quality, provide training, and ensure retention … [and] to enable criminal legal aid firms to offer remuneration broadly commensurate with the CPS, and to ensure equality of arms’ (para 16.4, page 156).
This leaves £35m for an increase in barristers’ fees. In June 2019, 61 per cent of Criminal Bar Association (CBA) respondents voted to suspend action with regard to the advocates’ graduated fee scheme pending the outcome of CLAR. The CBA now argues that the proposed £35m investment should be substantially increased and plans for its delivery published by the government by 14 February if industrial action is to be averted once more.
Will CLAR bring with it a new dawn for criminal legal aid? It could take years to implement certain recommendations, such as restructuring fee schemes, but others can be actioned urgently and will make a real difference to beleaguered practitioners. Will Sir Christopher’s recognition of the need for better data bring with it new, more transparent methods of working at the MoJ? And will this review finally inspire the publication of an official review for civil legal aid?

About the author(s)

Description: Rohini Teather
Rohini Teather is head of parliamentary affairs at the Legal Aid Practitioners Group. She is a non-practising solicitor.