. After decades of legal aid cuts by successive governments the criminal legal aid market has been placed under extreme pressure. Underfunding of the CPS and the Court system also contributes to the growth of inefficiency in the system, which in some instances is crumbling literally as well as metaphorically.
The right to a fair trial is at the heart of a democratic society and it sets Britain apart from authoritarian regimes the world over. Yet, those accused of a crime in England and Wales are often forced on a nightmarish journey through the criminal justice system, whether they are guilty or not.
It is encouraging there is a growing awareness of the crisis, and a consensus that the consequences of chronic underfunding can no longer be ignored. This is something the wider public should know and care about – not just a dedicated cadre of legal professionals operating in courts, police cells and prisons.
A Populus survey commissioned by the Law Society, Bar Council and Chartered Institute of Legal Executives to mark the launch of Justice Week 2018 – a week of events and activities to boost the profile of justice and the rule of law – showed that government policies to restrict legal aid are out of step with public opinion.
The findings revealed not only that the public really cares about justice but also that– they think politicians fail to prioritise as they should. This far-reaching research into public attitudes to the justice system in England and Wales also revealed that justice is as important to most people as health and education and that only twenty per cent think there is sufficient funding in place for those needing legal advice. The survey of 2,086 people also revealed an alarmingly widespread belief that justice favours the wealthy. The survey found that sixty per cent of respondents agreed that ‘people on low incomes are more likely to be convicted of crimes than wealthy people’.
It is frightening to think that people accused of crimes have a diminishing chance of a fair trial and victims have a reduced chance of seeing justice as the criminal justice system slides further into crisis due to years of underfunding.
Of equal concern is the fact that the reputation of our justice system – one of England and Wales’ most precious assets – is in great danger at a time when the country needs it most.
The fabric of society is built around legal rights and obligations. Surely, this is what British values are based on. By allowing our criminal justice system to crumble like this, we are disregarding and undermining centuries of progress.
Last September, just a few months after the Justice Select Committee called for a wider review of criminal legal aid, Supreme Court Justice Lord Wilson addressed an audience at an Ivy League university in the United States, stating that “…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”.
Criminal legal aid lawyers – solicitors and barristers – ensure that anyone accused of wrongdoing has a fair trial. A stable supplier base of defence lawyers to safeguard the rights of the vulnerable and to protect the reputation of our legal system is essential. Yet, rates for criminal legal aid work are now so low, young lawyers no longer see a viable career in this specialism.
A Law Society heat map published last year shows that there are counties in England and Wales where there are now no criminal duty solicitors under the age of thirty five. On a growing number of individual duty schemes, there are no lawyers under fifty years old. If this trend is not changed, the government will soon find itself unable to meet its statutory obligation to provide criminal legal aid services to those who need them in the interests of justice.
For more than a decade, justice has stomached the deepest cuts of any government departmental spending. Some criminal law firms are being selective about which cases they take on, in order to remain financially viable. The argument for reasonable payment for this challenging work has never been more clear-cut.
Media coverage of the crisis has gradually increased across national and regional print and broadcast outlets and public understanding of the issue has no-doubt been aided by The Secret Barrister’s compelling portrayal of a crumbling system paralysed by policies and budget cuts.
The Law Society and Bar Council have been unrelenting in their efforts to draw attention to the impact of cuts on access to justice. At the beginning of the year – ahead of the government spending review – the Law Society launched a campaign calling on the government to address the problems in the criminal justice system by adopting a series of policy recommendations on criminal justice. Put simply, we’re asking the government to invest more money to help resolve criminal justice issues.
Justice and the rule of law are key exports for the UK – but their integrity depends on the whole system working effectively. Years of underinvestment have meant the system is facing an avalanche of problems which have brought the criminal justice system to absolute breaking point, including:
- An increasing shortage of criminal duty solicitors who provide defence representation to the poorest and most vulnerable in society when they are accused of a crime
- Swathes of court closures which are impacting urban and rural communities and putting obstacles in the way of victims and witnesses and costing the taxpayer money as people fail to attend distant hearings, or are ferried by taxi
- Impassable barriers to accessing legal aid for those unable to afford a solicitor
- Victims and witnesses having to attend court repeatedly because of trials being adjourned again and again
- Solicitors firms which provide legal aid services finding themselves in an increasingly unstainable economic situation
- Those accused of a crime being held on remand far longer than necessary because of inefficiencies in the system at great public expense
- Defendants on low incomes forced to pay fees or contributions they can’t afford due to the overly stringent means test – thus threatening their right to legal advice and representation
- Failures to disclose crucial material from criminal investigations mean victims can be unintentionally misled as to who really committed a crime.
In fact, in July last year the House of Commons Justice Committee concluded that disclosure failures have been widely acknowledged for many years but have gone unresolved, in part, because of insufficient focus and leadership by ministers and senior officials. This was not aided by data collected by the Crown Prosecution Service which might have underestimated the number of cases which were stopped with disclosure errors by around ninety per cent.
The government must act to restore confidence in a battered system.
In December, the government laid legislation in parliament to spend an additional £23m on criminal defence advocacy fees and we were encouraged by the Ministry of Justice’s (MoJ) announcement that it will conduct a ‘fundamental review’ of criminal legal aid payment schemes, including considering criminal legal aid throughout the ‘life cycle’ of a criminal case. We are calling on the MoJ to undertake an independent analysis of what is required to ensure the market is economically sustainable. Remuneration rates need urgent attention and means testing thresholds should be uprated.
While a thorough, independent review of the long-term viability of the criminal legal aid system is long overdue, the timeframe of late 2020 for this fundamental rethink is far from ideal. Immediate action is needed. We are facing a crisis today.
By Richard Miller, Law Society Head of Justice