5Some wider concerns
77.In the previous two chapters, we have considered the disputed changes to the LGFS and the AGFS, and steps that might be taken to address the most immediate issues. In this chapter, we turn to wider, but related, concerns about expenditure on the whole criminal legal aid system; expenditure on the criminal justice system as a whole; and disclosure of unused prosecution material.
Expenditure on criminal legal aid
78.In relation to criminal legal aid as a whole—that is, for the AGFS and LGFS, Very High Cost Cases116 and Crime Lower work117—we note that the proportion of Departmental expenditure that it represents is relatively small. Government data indicate that, in 2017–18, expenditure on criminal legal aid was £959 million;118 this is just over 10% of total gross Departmental expenditure of £9,498 million.119 The chart below shows that, of the MoJ’s gross expenditure in 2017–18, £1,895 million supported the operation of the Legal Aid Agency, £1,807 million of which was expended on legal aid (civil legal aid, criminal legal aid and central funds).
Ministry of Justice Departmental Spending 2017-18
Key: LAA = Legal Aid Agency; HMPPS = HM Prisons and Probation Service; HMCTS = HM Courts and Tribunals Service
Daniel Bonich drew our attention120 to the size of the legal aid budget in comparison to income raised by the Ministry of Justice. We note that gross expenditure on legal aid for 2017–18—£1,807 million 121—was comparable to the total income of £1,806 million (derived mainly from fees income, fines income, recoveries of money by the Legal Aid Agency, and income from sales of goods and services).122
79.The general downward trend in expenditure on legal aid is illustrated by the following table, which shows a fall of 33% in real terms between 2011–12 and 2017–18.
Overall criminal legal aid expenditure
Source: Office for National Statistics Legal Aid statistics: January to March 2018
80.The previous two chapters of our report have documented concerns expressed by witnesses from the Criminal Bar and solicitors’ organisations about the sustainability of criminal legal aid, especially because of difficulties in attracting more junior lawyers to this area of work. A related concern is the impact of current recruitment difficulties within the Criminal Bar on the recruitment and diversity of the next generation of judges, including those who sit in the criminal courts; this issue has been raised by several members of the senior judiciary.123
81.The report of the Lammy Review concluded that “[a] fundamental source of mistrust in the [Criminal Justice System] among BAME communities is the lack of diversity among those who wield power within it. Nowhere is this more apparent than in our courts, where there is a gulf between the backgrounds of defendants and judges.”124 We are aware that the senior judiciary, together with the Judicial Appointments Commission, have undertaken a wide range of initiatives to encourage those from under-represented groups to consider a judicial career or progress to higher judicial office.125 The written submission of the CBA made the following observation:
[The ability of chambers to recruit] is having a deleterious impact on diversity and social mobility. This impacts on trust and confidence, and will have consequences for the future profile of the judiciary. This has profound consequences for public confidence in its ability to reflect British society and represent the communities it serves, as has been highlighted by the Grenfell tragedy.126
82.We are aware that the Lord Chief Justice, the Right Hon Lord Burnett of Malden, was recently asked by the House of Lords Constitution Committee whether he thought the current arrangements for criminal legal aid posed a threat to the rule of law. He responded:
…what appears to be happening, according to the Law Society, is that the cadre of legal aid solicitors acting in the criminal sphere is getting older and older. That is happening at the Bar as well. There is fairly convincing evidence from the Bar Council that, at the bottom, the junior Bar is not recruiting many to criminal work. In the long run, whatever the causes—and remuneration may well be at the heart of them—it cannot be good for the rule of law or the administration of justice, because it will mean that there are simply insufficient suitably qualified solicitors and barristers properly to represent those who need representing in the criminal courts.127
83.We note the emerging evidence of increasing numbers of defendants who are representing themselves,128 and the potential consequences of this not only for defendants, but also for witnesses and victims—as well as for the courts. Exploratory MoJ internal research (now placed in the public domain following a Freedom of Information request) based on in-depth interviews with Crown Court judges and prosecutors, together with sample magistrates’ courts data, indicates some of these consequences. We consider many of these research findings, summarised here, to be relevant to the subject matter of our report:
- Unrepresented defendants were seen as having a varied but limited understanding of the court process by the majority of interviewees and were considered less able to participate effectively in the process.
- A consistent theme was the perception that unrepresented defendants’ cases had longer hearings and case progression was slower.
- Interviewees saw unrepresented defendants as a barrier towards achieving early guilty pleas because they had a less detailed understanding of the discount scheme.
- Interviewees also expressed concern about unrepresented defendants’ effect upon witnesses, with particular worries about defendants undertaking cross-examination, including of their alleged victim .129
84.The Ministry of Justice is currently undertaking a post-legislative review of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 and its associated delegated legislation; the review is expected to report by the end of 2018.130 Although Part 1 of the Act was primarily concerned with legal aid for areas of civil and family law, the terms of reference for the review’s evidence-gathering exercise131 confirm that the MoJ has established stakeholder consultative groups that cover criminal justice as well as civil justice, family justice, and the advice sector. The published agenda for the first meeting of the criminal law consultative group132 suggests that one of three topics for discussion should be the impact of remuneration changes on recipients and providers of legal aid; further sub-topics are identified:
a)The impact on the provision of legal aid services that may have affected the experiences of individual recipients.
b)The impact of changes on the demographics of the legal aid professions.
c)The impact of changes to remuneration aimed at reducing the incidence of adjournments and cracked trials on recipients of legal aid.
d)Evidence gaps in this area.
85.In Scotland, which has a separate legal system, there is distinct legal aid scheme operated by the Scottish Legal Aid Board. An independent review of legal aid was completed in March 2018.133 The review report set out a 10-year vision for legal aid, making recommendations designed to ensure Scotland’s legal aid system is simpler, user focussed and more flexible—as well as sustainable and cost-effective. The legal professions and the Scottish Government both agreed beforehand that they would abide by the outcome of the review, and it was supported by an expert advisory group. When we asked the witnesses from the Bar and solicitor representative bodies whether the Government should adopt similar approach for the legal aid system in England and Wales, they agreed. Richard Miller explained that:
Many of the changes we have seen over the past few years have been driven by the financial constraints that the Ministry is facing. It has to make savings. It cannot carry on spending as it has because of the Treasury imposing cuts on it. That has driven decisions that perhaps could not be justified on policy terms if you took out the financial considerations. The other thing that was so refreshing about the Scottish approach was that they started from the principle that they wanted the best legal aid system possible. 134
In response to a similar question, Angela Rafferty QC and Andrew Walker QC supported the idea of an independent review of legal aid, emphasising the importance of making legal aid politically neutral: “I think the politics should be taken out of justice as much as possible. It should be a protected budget … ..”135
86.As we have observed [paragraph 12], there is a common law right to legal advice, together with a right to legal representation for an accused person 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 placing these rights at risk; we conclude that this risk can no longer be ignored.
87.We also conclude that current difficulties in recruitment to the Criminal Bar could potentially have a negative impact on future recruitment to, and diversity within, the judiciary—in particular for judicial office holders in the criminal courts.
88.Given these risks, we welcome the decision of the Ministry of Justice to consider legal aid for criminal law within the LASPO post-implementation review, as a first step in understanding the crisis that criminal legal aid is facing. We recommend that the output from this workstream be used to underpin a comprehensive and independent review of criminal legal aid, with the aim of devising a scheme that is sustainable and user-focussed; the review should adopt a similar approach to that of the recent independent review in Scotland. This review should be launched no later than March 2019 and should be concluded within 12 months.
Declining expenditure on the Criminal Justice System
89.Witnesses at both our evidence sessions raised serious concerns about the decline in expenditure on the criminal justice system as a whole. Angela Rafferty commented:
There is a wider point [ … ] of the general position of justice, and the justice budget, in society. We hope that there are some signs that it is being accepted that continual cuts to the Ministry’s budget are causing real difficulty in the system as a whole. We need to start looking differently at the justice system and to fund it better, generally speaking. That is not just to do with fees; it is across the board.136
We were also reminded by Daniel Bonich about the importance of the criminal justice system, as part of the rule of law, in securing the international reputation of this country:
If we are to continue to sell ourselves as a country that really prides itself on the rule of law—our legal services industry is worth about £25 billion a year—it is not going to help our international reputation when people have secretaries representing them on serious matters.137
A similar comment was made by Andrew Walker, who considered that the justice system had to be understood as being linked to the rule of law: “[t]he problem we have had for years is that, too often, we have been a soft target for cutting budgets, without reference to the impact on the rule of law.”138
90.Richard Miller expressed concerns about inefficiencies in the criminal justice system, attributable to inadequate resources, that give rise to further wastage in the system; for example, the courts’ practice of listing multiple cases together, in the expectation that at least one of them will not go ahead. In relation to the Crown Prosecution Service (CPS), he also observed:
…because the CPS is also significantly under-resourced, some of the conversations that can get rid of cases do not happen until the day of trial. For example, it is not uncommon on the day of trial for the defence and the prosecution to talk and agree, “Yes, we can accept a plea to a lesser offence.” That could have been agreed weeks beforehand, saving a lot of costs on both sides, but it is just impossible to have those conversations.139
The potential cost to the criminal justice system of an increasing number of self-represented defendants has been mentioned in this report, although not addressed in detail. We are also aware that serious concerns have been expressed by some commentators about under-resourcing and inefficiencies within the criminal justice system and the impact of this on defendants, victims and witnesses.140 The condition of the courts estate, including the criminal courts, was raised as a matter of concern by the Lord Chief Justice in his recent evidence to the House of Lords Select Committee on the Constitution; he remarked that “many of our buildings are terrible. Indeed, they are frankly an embarrassment. I do not say that they are an embarrassment for me as a judge, but they are an embarrassment in that we expect the public to have to operate in them.”141
91.It can be seen from the table below that, compared to the financial year 2010–11, the cumulative real terms decrease in the MoJ’s resource departmental expenditure limit [DEL]142 is projected to reach 40% by 2019/20.
Annual Change in the Ministry of Justice’s funding from HM Treasury in real terms
(figures represent £ billion)
Source: Ministry of Justice: Public Expenditure: Written question 112641, 16 Nov 2017143
92.As we noted in our recent report on Disclosure of evidence in criminal cases,144 net expenditure on the CPS fell by 27% between 2009 and 2017: from £672 to £491m. The number of full time equivalent staff employed by the CPS fell from around 6,200 to approximately 5,500 between January 2014 and December 2017, representing a reduction of 11%.145
93.An effective criminal justice system which successfully prosecutes those who commit crime but which also protects the innocence of the accused unless the prosecution can prove their guilt is one of the pillars on which the rule of law is built. The effectiveness of the system also demands that the fabric of the criminal courts is properly maintained. We conclude that the under-funding of the criminal justice system in England and Wales threatens its effectiveness, and in doing so undermines the rule of law and tarnishes the reputation of the justice system as a whole.
94.Our justice system is widely admired and the UK is a jurisdiction of choice for many individuals and corporate bodies that need to resolve disputes; nonetheless, it faces competition from other jurisdictions. We conclude that the under-resourcing of the criminal justice system undermines the prospects of successfully promoting our legal system abroad, a stated objective of the Government.
95.We recommend that that the Government conduct an urgent cross-departmental review of funding for all elements of the criminal justice system, including criminal legal aid and the Crown Prosecution Service, with the aim of restoring resources to a level that enables the system to operate effectively; the details of this review should be published in advance and its timetable must ensure completion in time to influence the conclusions of the 2019 Spending Review.
Disclosure of unused material
96.In the final section of this report, we consider the review of unused prosecution material by the defence. As we noted above, since the advent of the AGFS and the LGFS, reviewing unused material does not attract an additional payment; the work is supposed to be bundled into the graduated fee. The question of unused prosecution material was the primary focus of our recent report on Disclosure of evidence in criminal cases,146 and this report expressed concern about the lack of remuneration for reviewing unused prosecution material.147 Our inquiry heard evidence that cases that were previously straightforward had become more difficult; an example was given of a domestic violence case where 17,000 pages of unused prosecution material was served on the defence on the first day of the trial, which had to be reviewed without additional remuneration.148 Similarly, criminal defence barristers are expected to deal with unused prosecution material “unpaid and under pressure.”149
97.In relation to the present report, Daniel Bonich reiterated in his oral evidence that there had recently been a significant increase in the amount of unused material, in particular because prosecutors come across more material during the course of their investigation:
It is not just digital material, but third-party or medical material. All of that is now in unused material, so typically the unused material can often be significantly more than the volume of the witness statements in a case.150
Mr Bonich also explained that, in addition to time spent reviewing unused material, ancillary work may arise:
That would be attending upon a client, possibly instructing your own experts, preparing schedules and analysis of the work. All of that material has significantly increased, and the workload has increased, but the scheme as it is currently does not recognise any changes.151
98.Angela Rafferty confirmed that the evidence picture had changed considerably over the last 10 years, with the result that “hours and hours of barristers’ time on both sides of the case are spent considering unused material, for which there is absolutely no prospect of payment”.152 She suggested that payment could be made for dealing with unused material through a page threshold or an ex post facto hourly rate.153
99.We conclude that the pressure placed on defence lawyers to fulfil their professional obligations by reviewing unused prosecution material without remuneration is fundamentally unfair and—with the continual increase in the amount of such material—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.
116 See Footnote 24
117 Crime Lower includes work at the pre-charge and police station stage, in the magistrates’ courts and prison assistance.
123 For example, Sir Brian Leveson: “The pursuit of criminal justice”, Criminal Case Review Commission annual lecture, 25 April 2018; paragraph 39
124 The Lammy Review: An independent review into the treatment of, and outcomes for, Black, Asian and Minority Ethnic individuals in the Criminal Justice System, September 2017
125 For example, see The Lord Chief Justice’s Report, 2017
127 House of Lords Select Committee on the Constitution, oral evidence from the Lord Chief Justice, Wednesday 25 April 2018, Q11
128 Justice denied? The experience of unrepresented defendants in the criminal courts. Transform Justice, 2016.
129 Unrepresented Defendants: Perceived effects on the Crown Court in England and Wales and indicative volumes in magistrates’ courts. Ministry of Justice Internal Report, February 2016
130 The work of the Ministry of Justice - oral evidence given by Rt Hon David Gauke MP, Lord Chancellor and Secretary of State for Justice; 7 March 2018, Q122
133 Rethinking Legal Aid: An Independent Strategic Review. Martyn Evans, February 2018
140 For example, The Secret Barrister: stories of the law and how it is broken. Macmillan 2018
141 House of Lords Select Committee on the Constitution, oral evidence from the Lord Chief Justice, Wednesday 25 April 2018, Q7
142 Resource DEL covers most types of day-to-day spending, such as staff costs and the purchase of goods and services. The figures included in the table do not include depreciation, meaning spending on wear and tear.
143 https://www.parliament.uk/business/publications/written-questions-answers-statements/written-question/Commons/2017–11-13/112641/
144 House of Commons Justice Committee: Disclosure of evidence in criminal cases. Eleventh Report of Session 2017–19
146 House of Commons Justice Committee: Disclosure of evidence in criminal cases. Eleventh Report of Session 2017–19
147 Ibid, paragraph 50
148 Justice Committee, Oral evidence: Disclosure of evidence in criminal cases, HC 859, Tuesday 1 May 2018. Daniel Bonich Q159
149 Ibid, Angela Rafferty Q80
Published: 26 July 2018