1Background to this report
Our inquiry on disclosure of evidence in criminal cases
1.On 22 February 2018 we launched an inquiry into disclosure of evidence in criminal cases, prompted by several reports of criminal cases collapsing due to prosecution failings in disclosure of evidence. The inquiry aimed to investigate disclosure procedures to ensure they were fit for purpose and that the steps proposed (including by the National Disclosure Improvement Plan) to address existing issues were sufficient to resolve them.
2.An emerging pattern within the evidence that we received was that the criminal legal aid fee schemes for both advocates and litigators were working against the ability of the defence properly to fulfil its role, by making no provision for the time spent reviewing unused prosecution material.1 Although this work may involve reviewing thousands of pages of electronic evidence, it depends on the professionalism and commitment of the legal representative involved, who is not paid for the time that they spend engaged in this activity.
Correspondence with the Secretary of State
3.Criminal defence advocates, both barristers and suitably qualified solicitors,2 receive legal aid payments under the Advocates’ Graduate Fee Scheme (AGFS); fee rates have not been increased since 2007 and have also been subject to various reductions. In 2017, the Ministry of Justice (MoJ) consulted on changes to the scheme that were designed to be cost neutral; it published the revised AGFS on 23 February 2018. On 29 March 2018, the Criminal Bar Association (CBA), the representative body for practising members of the Criminal Bar in England and Wales, made an announcement describing the criminal justice system as “collapsing”, and suggesting that the Government’s lack of investment in legal aid was “the final straw” for the Criminal Bar, which it said was currently facing a recruitment and retention crisis. The announcement recommended that CBA members consider declining new legally aided cases as from 1 April 2018—the day that the new AGFS scheme was due to be implemented. A statement from the Bar Council, issued the same day, expressed support for the stance taken by the CBA and the Criminal Bar.3
4.On 24 April 2018, the Criminal Bar’s decision to take direct action prompted us to write to the Secretary of State for Justice, the Right Hon David Gauke MP, expressing dismay about this development.4 While we took no view as to whether the direct action was appropriate, we drew attention to evidence indicating that the perception of a crisis was justified, including a Bar Council survey indicating worryingly low levels of morale among criminal barristers. Our letter also expressed concern about the newly revised Litigators’ Graduated Fee Scheme (LGFS) that had generated lower payments for criminal defence solicitors, prompting an application for judicial review by the Law Society; the Society’s survey evidence indicated a shortage of duty solicitors in England and Wales, with this being an increasingly ageing sector of the profession.5 Our letter also referred to evidence to our inquiry on disclosure of evidence in criminal cases suggesting that the lack of legal aid payments to defence lawyers for reviewing unused prosecution material6 could be exacerbating the risk of miscarriages of justice.
5.The Secretary of State responded to our letter on 14 May 2018.7 While confirming the great value that he placed on the work of criminal advocates, without whom “our justice system would simply not function”, he expressed disappointment that the CBA had encouraged its members to take action, given that the MoJ had worked closely with the profession in designing the new fee scheme. He said that, under the reformed AGFS scheme, money is redistributed to ensure that advocates “are paid more accurately for work done”—for example, by increasing fees for more serious cases and remunerating each standard court appearance separately; no fees were reduced following the MoJ’s consultation.
6.In his response to us, the Secretary of State also acknowledged that concerns had emerged during the AGFS consultation about the potential adverse impacts on junior advocates and solicitor advocates, as a result of which: “we made significant changes to the scheme including allocating an additional £9m pa.” He went on to state that a financial risk linked to the new scheme [not further explained] was “likely to lead to another £9m expenditure per year”; in total this represented an increase of £18 million against expenditure for 2014–2015. The MoJ had committed to undertaking a full appraisal of the reforms, which was likely to take place between 18 months and two years following implementation. With regard to the LGFS, the Secretary of State explained that this had been amended in 2017 to address the “unintended consequences” of the decision of a Costs Judge affecting certain Crown Court cases.
Evidence sessions with criminal defence lawyers
7.The continuing dispute between the MoJ and the Criminal Bar prompted us to take oral evidence from representatives of the two main legal professions, to gain a better understanding of the underlying reasons for their grievances about the AGFS and the LGFS and the potential for resolving them. We held an oral evidence session on 22 May 2018, where the witnesses were Richard Miller, Head of Justice at the Law Society, and Daniel Bonich, Vice-Chair of the Criminal Law Solicitors’ Association (CLSA); and another on 12 June 2018, with Andrew Walker QC, Chair of the Criminal Bar and Angela Rafferty QC, Chair of the CBA; the CBA and the CLSA also provided us with a helpful written submissions which we have published.8 We are grateful to all the witnesses for their oral evidence and to the CBA and CLSA for providing us with written evidence.
8.The CBA had been set to step up its action on 25 May 2018 by adopting a “no returns” policy.9 However, shortly before this date, negotiations with the MoJ led to a breakthrough offer of £15 million in additional Government investment into the AGFS. In response, the CBA suspended implementation of the “no returns” policy while it balloted its members. On 12 June 2018, the day of our second evidence session, the CBA announced the result of the ballot, indicating that the revised offer had been accepted by a narrow margin of its members. Nonetheless, as discussed below, in oral evidence the CBA and the Bar Council expressed a view that the underlying problems within the criminal justice system, particularly the lack of investment, had not been resolved.
Our report
9.Based on the oral evidence that we received, together with our understanding of the background to the lengthy dispute between the legal professions and the Government over the AGFS and the LGFS, we decided to publish a short report. We are mindful of the fact that, on this occasion, we have not launched a public call for evidence, nor have we invited the Government to provide written or oral evidence since the original exchange of correspondence with the Secretary of State. However, we have concluded that the issues facing the criminal justice system—and in particular, their impact on lawyers who conduct criminal defence work—are sufficiently urgent for our report to be published without further delay.
10.In producing this report, we have considered the Government’s published material on the AGFS and the LGFS, including its consultation papers on proposed changes to the two schemes, and its responses to these consultations; we have also taken into account our own correspondence with the Secretary of State. We recognise below the efforts made by the Ministry of Justice to resolve the dispute that arose with the Criminal Bar, as well as the impact of funding constraints under which it currently operates—a matter to which we return in the final chapter of our report.
11.In the next chapter, we consider the rationale for criminal legal aid and summarise the history of criminal legal aid system, in particular the LGFS and the AGFS. The following two chapters consider the recent changes to the LGFS and the AGFS, and the dispute that has arisen between the Ministry of Justice and the Criminal Bar. In the final chapter, we consider some wider concerns: overall expenditure on criminal legal aid, and on the criminal justice system as a whole. We also look at the disclosure of unused prosecution material; as noted above, this formed part of the subject matter of our inquiry on disclosure of evidence in criminal cases; the report of that inquiry10 has thrown into sharp relief the relationship between the absence of legal aid remuneration and the handling of unused material and has informed the conclusions of the present report.
1 The prosecution has a duty to disclose to the defence material gathered during the investigation of a criminal offence, which is not intended to be used as evidence against the defendant, but which may undermine the prosecution case or assist the defence case.
2 See Paragraph 20 below.
4 Letter from the Chair of the Justice Committee to the Secretary of State for Justice, 24 April 2018
5 There are two duty solicitor schemes, operating in parallel: the police station duty solicitor scheme enables an arrested person to consult with a solicitor in the police station, and the court duty solicitor scheme allows someone charged with an offence to consult with/be represented by a solicitor on their first appearance in the Magistrates’ Court if they do not have their own solicitor.
6 See Footnote 1
8 Criminal Bar Association Briefing Note on the Advocates’ Graduated Fee Scheme; Written evidence from the Criminal Law Solicitors’ Association [AID0001]
9 A “return” is a case that a barrister agrees to take over from a colleague in their chambers who can no longer provide advocacy as a result of a diary clash.
10 House of Commons Justice Committee: Disclosure of evidence in criminal cases. Eleventh Report of Session 2017–19
Published: 26 July 2018