Criminal Legal Aid Review – another missed opportunity ?

28 February 2020

For a number of years we, together with other representative groups and the Law Society have been warning the government that the profession was at a critical juncture and facing a crisis in sustainability. Our members will remember this was an issue as far back as Chris Grayling and that at that stage the Otterburn report confirmed that most firms’ finances were precarious, with an average profit margin of around 5%. The government then promptly cut 17.5% from Legal Aid rates, and reduced Legal Aid Scope. Rates continue to fall in real terms and expenses such as business rates continue to rise. The crisis is now a very real one.

Why has this crisis point been reached ? Put simply, because governments of all shades and colours have not only neglected access to justice, but launched a concerted attack on it, denying the most vulnerable in our society representation.

Prior to the launch of the Criminal Legal Aid Review, figures produced by the Law Society showed the average age of Duty Solicitor was 47. Our own survey suggested it was around 49. SRA figures show that less than 3% of trainee solicitors undertake an element of criminal law training, and fewer still go on to practice in criminal legal aid. Since 2010 almost a third of duty solicitors have left the profession and have not been replaced.

At the beginning of CLAR we made it plain that our participation in it was dependant on urgent interim relief being given in the form of an emergency injection of funds. If nothing else that good will gesture was necessary to temporarily stave off the impending extinction of a profession long in a death spiral whist the final outcome of the Review was awaited.

We have been in ongoing talks with the government as part of the Review, and it was agreed that some areas of work would be accelerated. This was openly declared on the MOJ website.

Today’s consultation paper represents the fruit of those discussions. We start by rightly thanking those involved in the Review who are clearly committed and engaged in the exercise. We also welcome the fact that these proposals represent the first new money into the system for decades. We will be carefully looking at the detail, and deployment of these additional areas of funding, particularly given that it appears from the estimates given that whilst the maximum amount these changes is predicted to represent is an additional £25m to solicitors, and a similar amount to the Bar, the range suggests it could also represent as little as £12m. It is also not clear whether those amounts need to be further reduced by 20% to take into account VAT.

Whilst we welcome any new money into the crumbling criminal justice system, the sums proposed in the consultation are as insulting as they are derisory, particularly given that the government has managed to find £85m for the CPS (including the promise of annual reviews), who are recruiting a further 390 CPS lawyers, the Bar, and the police who are recruiting 20,000, all without the need for a wholesale review. Meanwhile we have lost 1/3 of our colleagues in just 10 years. The number of providers in only the last few years has fallen by 25%. Defence lawyers have been leaving their work attracted by the much higher remuneration packages on offer from CPS. Salaries with which hard pressed crime firms are simply unable to compete. The average age of a practitioner continues to rise, and many areas are set to be without any duty solicitors in the next 5-10 years unless something changes. The criminal justice system is increasingly held together with sticking plasters, with our committed, die-hard proverbial dinosaurs operating on goodwill to keep the wheels of justice turning. That is not sustainable. A fully functioning justice system should not have to rely on the goodwill and charity of our members. Our members are already thoroughly disillusioned and cannot and will not continue to prop up the failing system. It will not have gone unnoticed by our members that those working within the CJS who have threatened or undertaken disruptive action have secured greater amounts of additional additional investment. 

We will respond in due course to the detail of the consultation, but even at this stage we are clear the sums discussed in this latest consultation simply do not address this crisis. If the Govt is serious in its intention to save the criminal justice system from total collapse before it is too late, then the proposals in this consultation certainly do not support that intention. The proposals also appear to have some logical inconsistencies to them. If the aim was to fix areas where the current funding arrangement fell short, why, for example given the apparent acceptance that a trial is prepared in advance (explaining the welcome changes to the Advocates scheme with cracked trials), does the same logic not apply to the litigator’s Scheme ? If these proposals instead are supposed to be the urgent shot of investment needed to stabilise the critically ailing criminal defence profession they fall well short. The amounts proposed do not even represent the cost of living increase since the Review started, and puts at risk the very sustainability of the profession, and the credibility of the Review. We urge the government to expediate the next stage of the Review and inject funds as a national priority.

Like their namesakes, our proverbial dinosaurs are on the verge of extinction. These proposals do nothing to avoid that crisis and may represent a missed opportunity to reverse decades of decline.

This is the link to the consulation document and survey: