Criminal Legal Aid: Review calls for new measures to secure sustainability of criminal defence sector

Sir Christopher Bellamy QC’s long-awaited criminal legal aid review was published in December.

The independent review, which was commissioned by the Ministry of Justice (MoJ) and brought together experts from across the sector, found the market did not need “radical reform” but highlighted “new possible ways of working”, such as through not-for-profit community interest companies and firms specialising in particular kinds of work, supported by block grants from the government.

As well as calling for an immediate injection of £135m in new funding, with remuneration able to attract criminal lawyers “of the talent and calibre that the system requires” he highlighted the importance of supporting a new generation of lawyers into the sector and opening up to achieve more diversity amongst practitioners.

The next generation

The review recommended the MoJ consider allowing the Legal Aid Agency (LAA) to provide specific funding to legal aid providers to bring in trainees, targeted to areas where there is a particular shortage of specialist advice.

Individual chambers, the Inns of Court, or the MoJ, should make available top-up grants to ensure that young criminal legal aid barristers are not excluded from the profession for purely financial reasons in the initial period after expiry of a pupillage award.

Recognising the valuable role of CILEX Lawyers in the sector, the report included a recommendation to resolve the anomaly that actively prevents suitably qualified CILEX Lawyers from being recognised by the Criminal Litigation Accreditation Scheme (CLAS).

For CILEX practitioners, the first hurdle to a career as a police station duty lawyer arises at the very beginning. A lack of recognition of CILEX Advocates’ training and competence creates duplicate standards for proving an ability to carry out work independently.

It was also proposed that the Solicitors Qualifying Examination could open “wider possibilities for qualifying as a solicitor”, after which a transfer to the Bar could become a more common alternative to the traditional pupillage.

Our view is that the CILEX advocacy qualification fulfils the requirements under CLAS and that CILEX practitioners holding this qualification should be ‘passported’ across; an easy remedy that, if Law Society opposition could be overcome, removing this barrier faced by CILEX Lawyers looking to get onto the duty rota. Alternatively, a comparable accreditation scheme could deliver this assurance, something to which the MoJ has not, to date, been amenable.

The review’s recommendation that this be addressed is an important step in opening up the sector to a wider pool of lawyers, potentially giving CILEX Lawyers the opportunity to take part in more police station work.

Diversity

In terms of social, gender or ethnic diversity, a common point made to the review, by organisations including CILEX, the Black Solicitors Network and the Muslim Lawyers Advisory Group, was that low criminal legal aid rates generally made it very difficult for smaller firms that traditionally offered career opportunities for lawyers from disadvantaged social or minority ethnic groups to continue to do so.

This was resulting in fewer lawyers from these backgrounds entering the system – a real issue given the relatively high proportion of socially disadvantaged or minority ethnic defendants in the criminal justice system. That, the report contends, meant a shortage of lawyers who could relate to these defendants that in turn was eroding trust in the system.

CILEX has a more diverse membership than other branches of the profession – 76% of our lawyers are women, 17% identify as Black, Asian or Minority Ethnic and 85% attended state schools.

This diversity was recognised in the report, acknowledging that giving members specialising in criminal defence work the ability to take on the same work as solicitors would improve diversity in the sector.

It was also proposed that the Legal Aid Agency should work with the MoJ and solicitors’ representatives “to determine why the gender balance in relation to duty solicitors is in favour of male solicitors, and if so what steps should be taken to achieve a more equal gender balance”.

To tackle the issue, the MoJ, the Bar Council and the Bar Standards Board should also, the report said, look to establish to what extent, and if so why, differences exist in the publicly funded incomes earned or the work undertaken by criminal legal aid barristers on the basis of gender or ethnicity, “with a view to taking any necessary corrective action”.

Bureaucracy

The review highlighted that the primary objectives of the LAA should be “to support the resilience of the system of criminal legal aid, to reduce bureaucratic burdens on providers, and not ‘to save the pennies at all costs’”.

It was recommended that the MoJ should encourage and facilitate local arrangements for improving lines of communication between the defence, the police, the Crown Prosecution Service and the courts and that an independent advisory board should be established to advise the Lord Chancellor at regular intervals on the arrangements for the delivery of criminal legal aid.

Overall, the review was a cogent analysis of the challenges faced within the criminal legal aid environment and a grounded response designed to address the current challenges that are threatening the sustainability of the criminal justice system.

Funding

The sector has seen a real-terms expenditure decline of 43% since 2004, with some fees for criminal law practitioners remaining unchanged for 25 years.

The review questions how this situation can be sustained given criminal legal aid firms “can neither attract sufficient new blood, because the fee levels restrict the salaries that can be offered, nor retain experienced practitioners because of the higher salaries offered by the CPS”.

The review found that profits have also declined to a level well below those in other areas of legal practice. The result is that there is little incentive for new investment in the sector and insufficient compensation for business owners given the risks they are exposed to.

With the government recruiting more police and trying to reduce the court backlog, demand for defence services is set to rise. Sir Christopher argues that “absent a substantial increase in funding, there is a high risk that the system will simply be unable to cope with the challenges ahead.”

He recommends an extra £100m for solicitors and £35m for barristers, a 15% increase, as “the minimum necessary as the first step in nursing the system of criminal legal aid back to health after years of neglect”.

He stressed that this needs to happen as soon as practicable to enable the defence side, and therefore the whole criminal justice system, to function effectively.

The Lord Chancellor Dominic Raab is facing mounting pressure from both the Bar Council and Law Society to act on the review and has stated that the MoJ’s response will be published no later than the end of March. Justice Minister, James Cartlidge, has insisted that it is vital the government takes its time to get proposals for reform right.

We urge the government to respond positively and without further delay as without these proposals being implemented quickly, there is a serious risk that the effectiveness of the criminal justice system may be harmed through a loss of access to justice by some of the most vulnerable in our society.

Linda Ford is the CEO of CILEX (Chartered Institute of Legal Executives)

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