Summary
This report considers recent changes to criminal legal aid—in particular, the Litigators’ Graduated Fee Scheme (LGFS) and the Advocates’ Graduated Fee Scheme (AGFS) that apply to Crown Court cases; expenditure on criminal legal aid generally; and declining expenditure on the criminal justice system as a whole. It also considers the absence of legal aid for defence lawyers to review unused prosecution material. We do not consider the remuneration of prosecution lawyers as they do not fall within the scope of the LGFS and AGFS schemes.
An emerging pattern in the evidence to our separate inquiry on disclosure of evidence in criminal cases was that the AGFS and the LGFS were working against the ability of the defence properly to fulfil its role, as neither scheme offers remuneration for time spent reviewing unused prosecution material. This, together with the dispute that had emerged between the Criminal Bar and the Ministry of Justice over the revised AGFS, prompted us to take oral evidence from the Criminal Bar and solicitors’ representative organisations. Based on this oral evidence, together with our understanding of the background to the AGFS dispute and our exchange of correspondence with the Secretary of State for Justice, we decided to publish this short report on criminal legal aid.
In criminal cases, it has been recognised that there is a common law right to legal advice, together with a right to legal representation under Article 6 of the European Convention on Human Rights. We conclude that there is compelling evidence of the fragility of the Criminal Bar and criminal defence solicitors’ firms, which places these rights at risk—a risk that can no longer be ignored. We recommend that the output from the criminal legal aid workstream within the post-implementation review of the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 be used to underpin a comprehensive and independent review of criminal legal aid—similar to the recent independent review of legal aid in Scotland—with the aim of devising a scheme that is sustainable and user-focused; the review should be launched no later than March 2019 and be concluded within 12 months.
An effective criminal justice system is one of the pillars on which the rule of law is built; effectiveness also demands that the fabric of the criminal courts is maintained. The under-funding of the criminal justice system in England and Wales threatens its effectiveness, so undermining the rule of law and tarnishing the reputation of our justice system as a whole, which is widely admired. We conclude that the under-resourcing of the criminal justice system undermines the prospects of successfully promoting our legal system abroad, a stated Government objective.
We therefore recommend that the Government conduct an urgent cross-departmental review of funding for all elements of the criminal justice system, with the aim of restoring resources to a level that enables the system to operate effectively. The details of the review should be published in advance; its timetable must ensure completion in time to influence the conclusions of the 2019 Spending Review.
Our other principal conclusions and recommendations can be summarised as follows:
- Solicitors appear to have serious grievances about the LGFS, given the absence of index linking, the 8.75% cut in fees imposed in 2014, and the recent cap on pages of prosecution evidence. There is also evidence indicating a worrying level of demoralisation among criminal defence solicitors and threats to the sustainability of criminal defence firms.
- We consider it regrettable that the Law Society has had to resort to bringing a judicial review to pursue its grievances about the LGFS, and we recommend that the Ministry of Justice take urgent steps to avoid this dispute having to be resolved by the courts; whatever the outcome of the case, there should be a wider review of criminal legal aid.
- We also consider it regrettable that the Criminal Bar felt compelled to take direct action in response to the new AGFS, given the potential for adverse impact on defendants, claimants and the functioning of the courts. However, the underlying reasons for the dispute can be understood: the staged reductions in fees from April 2010 onwards, unhappiness about the revised scheme and the Criminal Bar’s genuine and heartfelt concerns about the future of their profession and under-funding of the criminal justice system.
- While we welcome the Government’s additional funding for the AGFS, and the Criminal Bar’s acceptance of the offer, we do not believe that the underlying issues have been resolved; it is clear that many barristers remain deeply unhappy about their situation and about the future of the criminal justice system.
- We acknowledge the challenges facing the Ministry of Justice in reworking the AGFS so that it is fair to all advocates, and in ensuring that the scheme is future-proofed against changes in the profile of Crown Court cases. We also acknowledge that the Ministry has made genuine efforts to address the concerns of the Criminal Bar. We recommend that, without further delay, a system of annual review be built into the AGFS, overseen by a panel which includes representatives from the Criminal Bar and solicitor organisations; the panel’s remit should include considering the inter-dependency between the AGFS and the LGFS.
- The pressure placed on defence lawyers to fulfil their professional obligations by reviewing increasing quantities of unused prosecution material is fundamentally unfair and likely to become unsustainable, and increasingly prejudicial to the defendant. We recommend that restoring legal aid payments for reviewing unused material above a certain page threshold be considered as part of the comprehensive and independent review of criminal legal aid that we have recommended above.
Published: 26 July 2018