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Criminal Legal Aid Contents

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:





Published: 26 July 2018