The Future of Legal Aid Contents

2Criminal legal aid

7.The value of criminal legal aid can only be fully appreciated by looking at how it contributes to the broader operation of the criminal justice system. This Committee’s concurrent inquiry into court capacity has served to inform our understanding of the current criminal legal aid framework. On 12 January 2021, Sir Tom Winsor, HM Chief Inspector of Constabulary and HM Chief Inspector of Fire and Rescue Services, HM Inspectorate of Constabulary, Fire and Rescue Services, told us:

We should also acknowledge that before the pandemic, the criminal justice system was in a severely distressed condition. Criminal defence resources were weak; legal aid rates are at chronically low levels. There were very severe delays already, decaying buildings, a crumbling infrastructure, understaffing and inadequate resourcing in all sorts of respects, and the pandemic has made things worse.9

Everyone working within the criminal justice system, especially during the pandemic, deserves credit for their efforts to keep the wheels of justice turning. But the starting point for reform of criminal legal aid should be to consider how publicly funded criminal lawyers can improve the overall functioning and fairness of the criminal justice system.

8.In 2018, our predecessor Committee’s report on criminal legal aid concluded:

[t]here 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.10

This inquiry has led us to the same conclusion on the fragility of criminal defence firms and the Criminal Bar. The situation in 2021 is worse than in 2018, especially due to the impact of Covid-19 on legal aid expenditure. In April-June 2020, spending was down 35% on the same quarter in the previous year. In July-September it was down 44% and in October-December, it was down 32% on 2018–19. In the first quarter of 2021, it was down 20% on the previous year.11

Table 1: Value of criminal legal aid work

Source: MoJ, Legal aid statistics, January to March 2021, table 1.1; HM Treasury, GDP deflators at market prices, and money GDP March 2021 (Quarterly National Accounts)

9.It appears that significant reform to the criminal legal aid system is on the way. Richard Miller, head of the Justice Team at the Law Society, writing in December 2020, said “The independent element of the Criminal Legal Aid Review gives hope that the economic crisis in the criminal defence profession may finally be substantially addressed”.12 The Criminal Legal Aid Review has already delivered some positive, if relatively modest, changes to the system. The evidence we have received on criminal legal aid indicates that the system will require significant further investment to become sustainable. However, while significant financial investment is necessary, it is not sufficient to make the criminal legal aid system work effectively for the public. Fundamental reform to key components of the criminal legal aid system is required. In particular, the system should move away from a transactional approach, prioritise providing the right level of help at the right time and focus on the quality of the service provided for the benefit of the criminal justice system and the public.

The role of criminal legal aid lawyers in the criminal justice system

10.Criminal legal aid providers provide legal services in four main areas:

The current fee regime for these services is set out in the Criminal Legal Aid (Remuneration) Regulations 2013.14

11.Pre-charge advice at the police station is performed by solicitors and police station representatives. Pre-charge advice in the police station is not means tested. Dr Vicky Kemp told us that the request rate for advice rose from 45% of suspects in 2009 to 56% in 2017.15 The duty solicitor scheme provides representation to suspects who do not have their own solicitors. Duty solicitor schemes are run by the Legal Aid Agency, which contracts private firms to do the work in police stations. The Independent Review of Criminal Legal Aid’s data compendium shows that between 2017 and 2019 the number of duty solicitors on the rota declined from 5,240 to 4,600.16 In that same period the average age of duty solicitors rose from 47 to 49. In 2019, only 9% of those solicitors were under 35.

12.Fees for police station advice are set out in Schedule 4 of the Criminal Legal Aid (Remuneration) Regulations 2013.17 Schedule 4 sets out the fixed fee and escape fee threshold for in-person police station advice for particular areas and schemes.18 For example, the fixed fee in Pwllheli in North Wales is £133.50 and the escape fee is £400.72. The fixed fee in Manchester is £177.90 and the escape fee is £587.11, and in central London it is £237.25 and £803.78 respectively. The regulations also set out the hourly rate used to calculate whether the escape fee threshold is reached (for example, for an own or Duty Solicitor during normal hours it is £51.28 in London and £47.45 everywhere else).19

13.Legal aid funded representation in the magistrates’ court is subject to a non-contributory means test and an interests of justice test. In 2020–21, defendants received representation via legal aid in approximately 13% of magistrates’ court cases.20 This was down from 24% in 2012–13. In 2020, there were 57,388 trials in the magistrates’ court, as opposed to 10,610 in the Crown Court. This work is largely performed by solicitors. This work is paid through a mixture of standard fees (and fee limits) and hourly rates, which are set out in Schedule 4 of the Criminal Legal Aid (Remuneration) Regulations 2013. For example the Designated Area Standard Fee for a Category 1A case, which includes for example either way guilty pleas, provides for a lower standard fee of £248.71 and a lower standard fee limit of £272.34. The relevant higher standard fee and higher standard fee limit are £471.81 and £471.85 respectively.

14.Legal aid in the Crown and the Higher Court is funded through the Litigators’ Graduated Fee Scheme, the Advocates’ Graduated Fee Scheme and the Very High Cost (Criminal) Cases scheme. Litigation work in the Crown Court and above is undertaken by solicitors. Advocacy work in the Crown Court and above is undertaken by solicitor advocates and barristers. There is a contributory means test that decides whether someone is eligible for legal aid in the Crown Court. At the Crown Court, legal aid was granted in approximately 93% of cases in 2019–20, and this figure was higher than in recent years, in which it has stayed around 87%.21 Crown Court work is normally responsible for around two-thirds of criminal legal aid expenditure even though the workload is smaller than either the Police Station Advice or the Magistrates’ court work. The fees for the Advocates’ Graduated Fee Scheme and Litigators’ Graduated Fee Scheme are set out in Schedule 1 and Schedule 2 of the Criminal Legal Aid (Remuneration) Regulations 2013 respectively. The mixture of graduated fees and hourly rates for these schemes means that Crown Court work is more profitable for providers than police station advice or magistrates’ court representation.

15.This summary of the work of criminal legal aid lawyers serves to highlight how fundamental their work is to the criminal justice system in England and Wales. In the discussion of fee schemes, it is important to remember that the criminal legal aid system is about real people. The work of criminal legal aid lawyers secures the right of everyone in England and Wales to legal representation in a police station or a court, even if they cannot pay for representation privately. That right depends on the fact that there are criminal lawyers willing and able to work for criminal legal aid rates. As well as securing the fundamental individual right of access to legal advice, criminal legal aid lawyers provide a public service that is crucial for the effective functioning of the criminal justice system. Reform of criminal legal aid must prioritise a whole justice system approach, to ensure that there are incentives for everyone to work towards the fair and timely resolution of criminal cases.

Recent changes to the criminal legal aid framework

16.The rules governing criminal legal aid are contained in the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act and in regulations made under that Act. The Justice Committee’s 2018 report, Criminal Legal Aid, provides a detailed outline of some of the changes made to criminal legal aid between 2008 and 2018.22 The changes over that period contributed to a significant decrease in the amount of money spent on criminal legal aid. In real terms, criminal legal aid spending was 38% lower in 2019–20 than in 2010–11, at around £864 million versus £1.38 billion.

Table 2: Annual spending on criminal legal aid

Source: MoJ, Legal aid statistics, October to December 2020, table 1.0; HM Treasury, GDP deflators at market prices, and money GDP March 2021 (Quarterly National Accounts)

17.The Committee’s 2018 inquiry was prompted by the Government’s proposed changes to the Litigators’ Graduated Fee Scheme and Advocates’ Graduated Fee Scheme.

Box 2: AGFS and LGFS

The Advocates’ Graduated Fee Scheme (“AGFS”) is the fee scheme through which criminal defence advocates are paid for carrying out publicly funded work in the Crown Court and the Litigators’ Graduated Fee Scheme (“LGFS”) is the fee scheme through which criminal litigators are paid for carrying out public funded work in the Crown Court.

Source: Explanatory Memorandum to the Criminal Legal Aid (Remuneration) (Amendment) Regulations 2020 No. 903

Our predecessor Committee noted that even though the disputes between the professions and the Government over those proposals were eventually resolved, the underlying problems around the sustainability of criminal legal aid, for both solicitors and barristers, remained.23

18.In February 2019, the Government published its Post-Implementation Review of Part 1 of LASPO. The Review estimated that the changes to criminal legal aid fees saved £140m per annum, thought there was “some variability between the policies in terms of the magnitude of the savings”.24 The Review noted that changes to defendant’s cost orders had been effective in reducing expenditure, and explained that central funds expenditure had fallen by £53m since 2011–12, from £101m to £48m.25 The Review stated that the introduction of the £37,500 disposable income threshold in the Crown Court had “not significantly impacted on the volume of Crown Court defendants representing themselves” and had saved the LAA £1.6m per annum.26 The report concluded that the Government planned “to undertake a broader review of criminal legal aid fee schemes as the Government believes the time is right for a more holistic review”.27

19.In February 2020, as part of the Criminal Legal Aid Review, the Government launched a consultation on an accelerated package of measures to amend the criminal legal aid fee schemes (the AGFS and the LGFS).28 The consultation set out a number of proposals relating to:

20.The Government published its response to the consultation on 21 August 2020.30 The Government decided to proceed with the changes in the consultation, except on the issue over what litigators are paid for work on sending cases to the Crown Court.31 The Government decided to increase the payment from two hours’ worth of work to four hours and that payment will be made under the magistrates’ court scheme rather than the LGFS.32 On 25 August 2020, the Criminal Legal Aid (Remuneration) (Amendment) Regulations 2020 were made to bring the changes into law. The Government said that these changes would amount to an additional £35 million to £51 million per year for criminal legal aid.33

21.In December 2020, following the publication of the Attorney General’s revised Guidelines for Disclosure, the Government launched a further consultation on remuneration for pre-charge engagement.34 The consultation proposed a new unit of work for advice and assistance associated with pre-charge engagement; it would allow a defence practitioner to be remunerated where it has been agreed “between the relevant parties (prosecutors and/or investigators, suspects and suspect’s legal representatives) that pre-charge engagement may assist the investigation and a full written record of the discussions is made”.35 The Government response to the consultation set out that it would proceed with the proposal and the Criminal Legal Aid (Remuneration) Regulations 2013 (the Remuneration Regulations) came into force on 7 June 2021.36

22.The changes made as part of the Criminal Legal Aid Review are positive and show that the Government recognises the need to make improvements to the criminal legal aid framework. It is particularly welcome that the Government has acted on pre-charge engagement. However, much more needs to be done to make criminal legal aid sustainable.

Sustainability

23.There is a consensus that the sustainability of criminal legal aid providers is a real problem. Speaking to the Committee on 20 December 2020, the Lord Chancellor outlined the thinking behind the Independent Review of Criminal Legal Aid, explaining that it would “allow a much longer-term solution to be brought to bear, not just about advocates’ fees, important though they are, but about the way in which solicitors are remunerated for their important work at the police station, to really get under the skin of the existential issues that are affecting criminal practice and make a sustainable difference for criminal legal aid”.37 The Independent Review of Criminal Legal Aid’s Terms of Reference, as noted above, are focused on looking at “the Criminal Legal Aid System in its entirety” and this reflects the Government’s aim to address the issues of sustainability.38 The Independent Review has gathered a significant amount of data on the issue of sustainability, as has the APPG on Legal Aid’s Westminster Commission on Legal Aid.39

24.The Independent Review of Criminal Legal Aid’s data compendium shows that since 2014/15 the number of criminal legal aid firms in England and Wales has decreased by 19% (from 1,510 in 2014/15 to 1,220 in 2019/20).40 The number of solicitors working for criminal legal aid firms declined between 2014/15 and 2018/19 by 20%, while the number of practising solicitors grew by 9%.41

25.Richard Miller, head of the Justice Team at the Law Society, summarised the problem of sustainability facing solicitors:

CLAR was first announced in 2018 to address what even then was seen as an urgent problem, with an ageing criminal defence profession and areas where there were no lawyers under 35 doing the work at all. Duty schemes are collapsing. One in the north-west collapsed and had to be combined with a neighbouring scheme, and others are down to their last three or four lawyers. […] We had 1,122 firms holding a criminal legal aid contract as of 14 December. That is 150 fewer firms than in 2019, so 12% of the supply base has gone in the course of a year.42

26.Barristers face similar problems. Derek Sweeting QC, Chair of the Bar Council, said:

People are coming to the criminal Bar, staying for 10 years or less and then leaving in numbers, so we have a sandwich with no meat in the middle, which is comprised of young members of the Bar with not much experience and older members of the Bar who are ageing, and we have very little in the middle.43

Without significant reform there is a real chance that there will be a shortage of qualified criminal legal aid lawyers to fulfil the crucial role of defending suspects and defendants. This risks a shift in the balance between prosecution and defence that could compromise the fairness of the criminal justice system.

Recruitment and retention

27.In terms of recruitment, the Criminal Law Committee of the Birmingham Law Society cites the following factors to explain the lack of new entrants to criminal practice, for both solicitors and barristers:

28.These factors also contribute to the difficulty of retaining staff. Birmingham Law Society told us entire cohorts of pupil barristers at local chambers choose not to practice in crime, even though they are being drawn to the profession by criminal work.45 Emma Fenn, a barrister at Garden Court Chambers in London, said that they faced similar problems: “every year, out of three or four pupils, we virtually never get a chance to retain them in crime because they get a taste of it and the fees, and they immediately want to work in one of our other areas”.46 James Mulholland QC, Chair of the Criminal Bar Association (CBA), stressed that many criminal barristers are leaving because of substantial student debts.47

29.Dr James Thornton, Lecturer in Law at Nottingham Trent University, provided written evidence based on interviews with 29 criminal defence litigators and advocates in England and Wales. Thornton reported that:

Very few of the criminal legal aid lawyers I interviewed in my study could see much of a future in criminal legal aid due to current payment rates, both in terms of direct cuts and the impact of inflation. From the most recently qualified to the senior, other options were being considered. Some solicitors were diversifying from or abandoning criminal legal aid. Some experienced barristers did likewise, or had developed their caseload to such an extent that what small amount of criminal law work they still did was done for personal interest, rather than any financial benefit. More junior ones were using the advocacy experience they had gained from criminal legal aid work as a springboard into other practice areas.48

30.One of the main issues in terms of retention, is that many criminal lawyers are leaving private practice to join the CPS. Hollie Collinge, a Solicitor Advocate at Kellys Solicitors in Brighton, told us that “of my peers who started doing this kind of work 15 or so years ago, I have seen so many good lawyers leave the profession, often employed by the CPS, after a very solid training in private practice and being funded by private practice”.49 Kerry Morgan, Director at Morgan Brown and Company Solicitors in Manchester, told the Committee that many of the solicitors trained by her firm had left to join the CPS:

I started my practice in 2006, and more or less every year for eight years we had a trainee every year, so we would be taking on a trainee solicitor, getting a duty solicitor, keeping them on, but we’ve probably not had one in years and years simply because you haven’t got the money to train them, or the time required, as you’re keeping the wheels on in terms of the rest of the practice, and when they do qualify they end up going to the Crown Prosecution Service. So we’ve become a training ground for the prosecution, as opposed to being able to retain them ourselves because the money is just not there.50

31.Kerry Morgan added “all the firms in Manchester are in the same position, I would probably say a third of over 40s have now gone to the Crown Prosecution Services on salaries we just can’t compete with”.51 With many leaving and fewer joining the profession, the long-term prospects are for criminal defence are worrying. As Robbie Ross, a solicitor and director from Ross Solicitors in Swindon, set out “How is the system going to operate without lawyers? You can’t have loads of prosecutors when you’ve got no one to defend”.52

32.There appears to be a growing imbalance between the ability of criminal defence firms to recruit and retain staff and that of the Crown Prosecution Service. It is fundamental to our adversarial justice system that criminal defence services have sufficient resources to provide high-quality representation to suspects and defendants. We recommend that the Government consider linking legal aid fees to the rates of pay of the Crown Prosecution Service.

Remuneration

33.The cause of the current problems with sustainability can, according to the Criminal Law Committee of the Birmingham Law Society, be attributed to the “extremely poor rates of remuneration for legal aid practitioners”.53 Dr Lucy Welsh, Senior Lecturer in Law at University of Sussex, argues that the combination of the 8.75% fee cut to the Litigator Graduated Fee Scheme in 2014, combined with the lack of fee increases for over 20 years, has led to market contraction and reduced firms’ capacity to conduct legal aid work and reduced capacity for training contracts and pupillages in publicly funded defence work.54

34.Dr James Thornton’s evidence highlights how the system of fixed fees impacts on the morale of the workforce and on the quality of the work:

An indirect consequence of low rates is that a high volume of work needs to be done to run a solvent business. Speaking anonymously, several interviewees in my study expressed great frustration with how this meant they needed to prepare and conduct each case: often in ways they considered inadequate, or even improper, and often contrasted with the (greater) attention that they could afford to spend on privately paid defence cases.55

A number of solicitors told us that the 2014 cut of 8.75% to the Litigators’ Graduated Fee Scheme had caused a significant contraction of the supplier base and should be reversed.56 Many witnesses also stressed that the lack of any increase to the fees for over twenty years was the source of the lack of sustainability. Robbie Ross, a solicitor advocate put it in the following terms:

I don’t like talking just about money, but the fact is if any of you MPs went out to a builder and said ‘I’ve got an extension that I need to be built,’ and they came back and said, ‘right, it’s going to cost you £50,000 and you said, ‘well that’s fine, but I’m only going to pay you what it would cost for me to build it in 1997’ Now how many builders would then take on the contract!?57

The lack of any increase to criminal legal aid fees for solicitors over the past 20 years needs to be addressed. Sir Christopher Bellamy’s current review, commissioned by the Government, gives an opportunity to do this. Thereafter, fees and rates should be regularly reviewed in line with inflation, otherwise the gap will build up over time and become harder to address.

35.James Mulholland QC, the Chair of the CBA, also told the Committee that the fees for barristers are too low:

I hope that Sir Christopher Bellamy QC, the chair of the review, will see that the criminal Bar is vastly under-remunerated. That was clear from the Jeffrey review, and that was six years ago. I hope he will see the need for diversity, the need for retention of carers and women within the profession, and the importance of remuneration. I really hope that he sends a message soon that keeps people on board, because I fear silence is not an option in relation to this review. I hope that, within three months, he indicates the direction of travel and that he is going to recommend significant increases in rates that have fallen far below their previous incarnation.58

36.Derek Sweeting QC, Chair of the Bar Council, told the Committee that the current fee structure does not reflect the complexity of the work and a result does not provide a career structure for criminal barristers:

It needs to recognise that there should be a difference according to complexity: there should be a recognition that, as people get more senior and experienced in the profession and do cases of more complexity, of the sort we have been told are on the way in numbers, that is reflected in pay as well, because that will provide a career structure for criminal barristers. We desperately need that.59

The Bar Council’s written evidence highlights that a barrister who undertakes a Magistrates Court full day trial can expect to receive £150, to cover the full day in court and all the prior preparation.60

37.James Mulholland QC made the same point about the rate for a Plea and Trial Preparation Hearing and noted that the £126 fee is “lower than the minimum wage”.61 He added:

We are talking about really, really low rates of pay, and that is what needs to be examined. Nobody is saying that the taxpayer should be somehow ripped off. The reality is that people in this position, and those who represent them, deserve fair and reasonable remuneration for the work they do.62

The criminal justice system will be stronger if able and experienced advocates at the criminal bar are able to do publicly funded legal aid work. The gap between private and public rates has grown substantially in the past decade, and while a significant gap is to be expected, we agree with Criminal Bar Association’s interim submission to the Independent Review of Criminal Legal Aid that there needs to be a connection between the two.63 Further, in assessing the fees paid to advocates, it is important to remember that the total fees do not translate directly to earnings, as barristers have to pay considerable overheads, expenses and chambers fees out of the gross fee. The Government should take this into account when considering how to reform the criminal legal aid system.

38.There are serious problems with the current fee schemes for criminal legal aid. The fees and rates do not reflect the work required. The schemes should be reformed to ensure that they offer a fair rate for the work required and are subject to regular review.

Diversity

39.Joanna Hardy, a barrister at Red Lion Chambers, told the APPG on legal aid’s Westminster Commission that she is concerned for the future diversity of the criminal bar:

The risk we run at the Bar, which is a brilliant job, is that we don’t get many thanks or very much money and that the job will still attract people when you cut the pay. Back in the day, being a barrister was deemed to be something of a hobby profession for wealthy white men and we do not want to see the profession returning to that. We should be able to look kids in the eye and say you can work in the publicly funded Bar, you won’t be rich but you will be able to do it. I’m reaching the stage where I cannot say that to young people.64

40.Tony McDaid, vice-president of the Birmingham Law Society, made the same point:

Unless you come from a background where your parents have money, there’s no way that you can sustain a career in a criminal practice, in a solicitors law firm, or indeed certainly at the Bar, unless you’ve got some funds coming in from other means. It’s absolutely desperate.65

The justice system needs talented lawyers from all backgrounds to choose to practise criminal law and for the professions to be able to retain them. In 2018, our predecessor Committee stated “that current difficulties in recruitment to the Criminal Bar could have a negative impact on future recruitment to, and diversity within, the judiciary—in particular for judicial office holders in the criminal courts”.66 This inquiry’s evidence has reaffirmed those concerns.

Fee schemes

41.A number of witnesses criticised the structure of the existing fee schemes for criminal legal aid work, and in particular the role of fixed fees.67 The Carter Review in 2006 instigated a comprehensive move away from payment for publicly funded legal services on the basis of hourly rates to a system of fixed or graduated fees.68 Since then certain areas of criminal legal aid work, for example at the police station and the Magistrates Court, have been paid predominantly through fixed fees.69

Quality and complexity

42.Dr Vicky Kemp, Principal Research Fellow at the University of Nottingham, argued that the inadequate fixed fee for police station work has proved particularly problematic:

[S]olicitors complain that the fee is not sufficient to cover the cost of providing advice and assistance to detainees, particularly when dealing with serious and complex cases.[…] These changes have not only impacted on the financial viability of solicitors’ firms but have also had a negative impact on the quality of criminal legal aid services and in providing access to justice.

In relation to police station work, for example, many firms now concentrate on the police interview only and do not get involved in the wider issues concerning the detention of their clients.70

43.Dr Roxanna Dehaghani and Dr Daniel Newman, both from Cardiff University, provided written evidence containing extracts from interviews with practitioners which set out the impact of inadequate fixed fees on the quality of the work provided:

So you probably work out how much work you need to do on a case and know that you’re, you know, the fixed fee comes nowhere near it. So, yeah, again sometimes that may impact on the way that you prepare the case. It’s possible. Yeah. Especially when you’re busy. You know, because you, in order to try to make a living out of this, the only way round [sic] the fixed fees is to have a lot of work. So that the volume increases, so that you’re still getting lots of work in. And sometimes when that happens, because you’re so busy, you can’t give a certain client enough time that they really should deserve on their case. We try our best, but sometimes it doesn’t happen.71

Dehaghani and Newman’s evidence also cites an interviewee who explains that on less serious cases “there’s no incentive to go out and do anything above and beyond what you’re expected to do”.72 Kerry Hudson, the Director at Bullivant law, told the APPG on Legal Aid’s Westminster Commission that “the complexity of the work done on fixed fees has increased in a way that it could have not been anticipated by the fixed fees system”.73 Transform Justice’s evidence to us argued that the current fee structure “provides no financial incentive to improve quality or take on complex cases (and may be a disincentive)”.74 In relation to police station work, Transform Justice argued that the fixed fee structure “creates a financial incentive for the most experienced lawyers to do the least complex police station cases because they tend to be quickest, for defence representatives to spend the minimum required time on any case, and for work to be delegated to representatives (not lawyers) who may lack the experience to deal with complex cases and who may work freelance for an unregulated company”.75

44.A study commissioned by the Criminal Cases Review Commission (CCRC) found that legal aid payment rates had a detrimental effect on the willingness of lawyers to take on CCRC casework.76 A number of participants in the study highlighted that the rates of pay were not proportionate to the complexity of the work and the staffing resources required. On 25 May 2021, the Chair of the CCRC, Helen Pitcher, told us that 10% of applicants have legal representation.77 She added that when an application is made with the support of a legal representative, it makes the CCRC’s work more straightforward.78

45.Dr James Thornton’s evidence highlights how inadequate fixed fees impact on the morale of the workforce and on the quality of the work:

Several criminal legal aid firm partners I interviewed considered all police station advice work as a loss-leader and/or most if not all magistrates court work as cashflow rather than profit-making. One admitted to having only made a profit in a previous year because of two substantial Crown Court trials. A fee system that appears to encourage the view that large parts of a lawyer’s work is financially worthless and to focus on Crown Court work above everything else seems problematic for morale and retention, but also the administration of justice more generally.79

46.Crown Court work is statistically a relatively small proportion of the total work within the criminal justice system.80 It is also right to recognise that every system will have some anomalies. However, as Thornton notes that “the temptation to follow such financial rewards and avoid such financial punishments is greater when fees are lower and margins are consequently tighter”.81

47.The predominance of inadequate fixed fees in the current framework is problematic. The structure of the fees does not reflect the complexity of the work required, nor does it incentivise firms to take on the most difficult cases at an early stage. The Government should reform the fee structure to prioritise quality over quantity and to allow criminal defence lawyers to spend more time on the most difficult cases at the earliest possible stage. There is a risk to the fairness of the criminal justice system if lawyers are not willing to take on the most complex cases because of the low rates of pay. There are also clear benefits for the operation of the criminal justice system if more work can be done at an early stage to make progress on a case.

Focus on Crown Court work

48.Kerry Morgan, Director at Morgan Brown and Company Solicitors in Manchester, told us that fixed fees were the main problem facing criminal legal aid. She also supported the view that they created a focus on major Crown Court trials:

[i]f you’re a firm that’s got some big Crown Court trials you’ll make a lot of money. If you’re doing the bread and butter stuff you won’t make any money, and it is swings and roundabouts. When we used to get paid for what we did, the firms that did a good job, the firms that did the work, the firms that did the quality, got paid for it. And what’s happening now is everyone is clambering for this big case and, ‘the less work I do on that big case, the more money I’ll make.’ And that’s not how it should be.82

49.Dehaghani and Newman’s evidence also highlight how the fee system focuses attention on the Crown Court. They cite an extract from an interview with a practitioner who explained:

[S]ay a two-hour trial in a magistrates’ court, where you’re not going to get into a higher standard fee, then you’re going to get two hundred and seventy quid, plus about maybe fifty quid travelling weight. So three hundred pounds for a trial. With two hearings and all the prep. So you lose money hand over fist on your general police station work, unless you’ve got a load of people in, and you get picking up standard fee. Standard fee in the police station’s… a hundred and sixty-nine. Pounds. And that’s regardless of how many times you’ve got to go back. So you can do up to, I think it’s sixteen hours’ worth of work, for your hundred and sixty-nine pounds. So you lose money on that, you lose money on the magistrates’ court, and you make your money on the odd Crown Court case which happily falls within one of the four well-paid categories. So my colleagues just dealt with a case which was a higher-paid category. In that case it was a long trial, but we got paid fifteen thousand pounds. Comparative case on the lower category you get paid fifteen hundred pounds.83

50.Transform Justice’s evidence argued that the system focus on the Crown Court creates “perverse financial incentives”.84 Increasing the fees paid for police station work could have a number of benefits for the criminal justice system. Transform Justice’s evidence points out that “if a defendant pleads not guilty to an offence which will be tried in the Crown Court, then changes their plea to guilty after the start of the trial, the solicitors’ firm will get a much higher fee than if the defendant pleaded guilty at an early stage”.85 We do not know if this happens or on what scale, but the broader point that the current system leads to a focus on Crown Court work, at the expense of other work, was made by a number of witnesses.86

51.The Committee’s inquiry on court capacity has focused on the Crown Court where the delays are the most acute. In that context, it is imperative that the criminal legal aid system should be structured to facilitate resolution of cases at the earliest possible stage in the process.

Rebalancing the system

52.The current fixed fee structure needs to be re-evaluated. As Transform Justice’s evidence notes, it is difficult to pin down how the fees impact on the quality of defence work, but the overall impression created by the evidence submitted is that the current system is not working.87 The “swings and roundabouts” approach does not always enable providers to do their best for their clients, nor is it helping to sustain the profession. The criminal legal aid system should be restructured so that it enables legal aid lawyers to provide effective representation at every stage of the process, works for complex cases and sustains providers in all areas of England and Wales. The Government should reduce the role of fixed fees within the legal aid system to ensure that high-quality work at every stage of proceedings and on complex cases is fairly remunerated.

53.The current criminal legal aid system does not provide enough incentives for legal representatives to take early action to progress cases through the system as quickly as possible. The legal aid fee structure should incentivise early engagement between defence lawyers and the police and the CPS. We note that the Government has sought to make changes to pre-charge engagement, but more changes are needed. The current system does not do enough to recompense lawyers for taking on complex cases at the police station and at the magistrates’ court. Investing more in early engagement will lead to savings to the public purse, as cases would be resolved at an earlier stage, which could free up capacity across the criminal justice system.

The throughput of work and the impact on sustainability

54.One of the major themes of the evidence to the Committee is that the reduction in the number of cases going through the criminal justice system has had a negative impact on the sustainability of criminal legal aid. Dr Vicki Kemp highlighted that the income of solicitors working in criminal legal aid has reduced because the number of arrests has fallen by over half, from 1.4 million in 2010/11 to 670,000 in 2018/19.88 The number of cases going through the Crown Court has also decreased in that time. In 2010–11, 38,114 cases were received by the Crown Court and in 2018–19 this figure was 25,063.89 Emma Fenn, barrister at Garden Court Chambers, told the Committee that the combination of low charging rates and low number of Crown Court trials are having an adverse effect on the workload and career development of recently qualified junior barristers.90

55.Another connected point is that the situation is worse in some areas of England and Wales. Criminal legal providers in some areas of the country are struggling because there is not the volume or the quality of the work that there is elsewhere. Dehaghani and Newman suggest that providers in Cardiff have suffered disproportionately from changes to criminal legal aid because the city does not have the same amount or type of work as larger cities in England.91 This reinforces the Law Society’s analysis of the LAA Duty Solicitor Scheme data, showing that certain areas of England and Wales were likely to face a shortage of criminal duty solicitors.92

56.Release Under Investigation (RUI), introduced by the Policing and Crime Act 2017 and which the Government has proposed to amend through the Police, Crime, Sentencing and Courts Bill, has also caused difficulties for legal aid lawyers. A number of witnesses have argued that RUI has led to delays in charging cases. Stephen Davies, a solicitor at Tuckers, outlined in written evidence that he has regularly had cases where suspects have “waited 1–2 years to find out they have been charged with serious offences”.93 This, Davies argues is “nothing other than a cash flow nightmare” for legal aid providers.94 Hollie Collinge, a solicitor advocate from Brighton, told the Committee that the combination of RUI and the need to examine data as part of the investigatory process has been a “perfect storm” leading to delays in cases being charged and progressing through the system. During the APPG on Legal Aid’s evidence session on criminal legal aid, Kerry Hudson, the Director at Bullivant law outlined the impact of Release Under Investigation on legal aid lawyers:

RUI is one of the worst things that has ever happened to the system. It hit us in the face in 2017, and overnight we had to come up with a system to manage hundreds of cases that sit in our drawers for years at a time. The fixed fee for the initial interview and all the time in between that interview and the charging, you must basically do that work pro-bono. The burden on a firm is huge and whether or not you get that case going to court, later on, is completely up to luck.95

A number of other witnesses also told the Committee that the police are not making charging decisions quickly enough, and that when combined with level of fixed fees, that the result is that a significant number criminal legal aid providers are not generating enough income to be sustainable.96

57.The table below shows how much the criminal legal aid workload has changed in the last decade:

Table 3: the Criminal legal aid workload and expenditure in 2020–21, as compared with 2011–12

58.The recent changes to the way that cases progress through the criminal justice system further highlights the need to keep the fee structure under regular review. The Government needs to ensure that the legal aid framework is able to respond and adapt to changes in volume and practice over time in the criminal justice system.

The impact of Covid-19

59.Covid-19 has significantly reduced the number of cases going through the courts in 2020. As a consequence, spending on criminal legal aid decreased significantly after the pandemic. Total expenditure on criminal legal aid dropped by 33% in 2020–21 when compared with 2019–20 (£838 million in 2019–20 compared to £563 million in 2020–21). The table provides a detailed breakdown of the impact on spending during the pandemic:

Table 4: Criminal legal aid expenditure comparison between 2019–20 and 2020–21

60.A number of submissions to the Committee stressed that Covid-19 would result in a significant number of criminal legal aid providers leaving the market permanently. Daniel Bonnich explained that the situation for solicitors was very difficult:

The starting position is that far fewer cases are completing. There is still a reasonable number coming in, but far less are finishing. The number of trials is down, certainly in the Crown court, by about 75%, I believe, was the most recent stat, and it has led to something like a 60% drop in legal aid spend. […] On top of that, we have been able to take advantage of some of the Government support such as furlough, but that has the knock-on effect of reducing our own capacity. Those who are not furloughed are working even longer hours—it is more difficult—than they were in an already strained system. As you and many of your colleagues will be aware, because most of the fee structures for publicly funded work effectively kick in for payment at the end, the fact that cases are not finishing makes life financially very difficult for firms at the moment.97

Hollie Collinge, solicitor advocate from Kellys Solicitors in Brighton, told the Committee that in her experience the pandemic was “the icing on the cake”98. She added that a number of firms were at risk and that “no Crown court cases finishing in a year is enough to send a firm under”.99

61.James Mulholland QC, the Chair of the Criminal Bar Association, said that the situation at the publicly funded criminal bar was difficult:

The vast majority of criminal barristers are in tremendous financial difficulties. I am still hearing of numerous individuals who have not had an effective trial for over a year. We understand that somewhere in the region of four fifths of the criminal Bar have incurred personal debt or used savings to support their practice through the pandemic. A substantial proportion—perhaps as much as a quarter, we understand—have taken on personal debt in excess of £20,000.100

Emma Fenn confirmed that the situation for the junior bar was also challenging:

It is an area of publicly funded work that has been undergoing a recruitment and retention crisis long before I was contemplating coming into this area of law in 2009–10. This really does feel like the final straw. Most of my colleagues report 70% reductions in income over the last year or so during the pandemic.101

Our 2019–21 Report on the effect of Covid-19 on the legal professions discussed measures taken to provide additional income during the early stages of the pandemic. The impact of Covid-19 means, however, that the need to take action to improve the criminal legal aid framework is now even more urgent than it was when the Government set up the Criminal Legal Aid Review in 2018.

The means test

62.The Post-Implementation Review of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 provides the following summary of how the eligibility test works in criminal legal aid in England and Wales:

Initial advice and assistance is available for all those questioned in a police station. For legal aid in the magistrates’ court, defendants are subject to an Interests of Justice test, an initial means test, and in certain circumstances, a full means test. If the defendant is eligible for legal aid, they are not required to make any income-based contributions. For the Crown Court, defendants are not subject to the Interests of Justice test, as Crown Court cases automatically satisfy this. However, Crown Court defendants are subject to an initial means test, and often a full means test or capital means test, depending on the findings of the initial means test.102

63.Before 2013, all defendants in Crown Court proceedings were eligible for legal aid. At this time, the sole purpose of means testing ahead of Crown Court trial was to determine the level of contribution required by the defendant, if any at all. The Legal Aid Transformation (LAT) tranche of reforms in 2013 introduced an upper eligibility threshold for the first time. Any defendant with a disposable household income of £37,500 or more would now be ineligible for legal aid. Those whose income is above the threshold but could not in fact afford to pay for the cost of their case privately can apply for a hardship review in order to access legal aid. The Post-Implementation Review of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 stated that the £37,500 threshold had “estimated to have achieved £1.6m in savings”.103 The Review also noted that the threshold had ensured that those “who can afford to pay their own litigation fees do so while those lacking the financial capacity to do so receive funding”.104

64.The Post-implementation Review noted that the evidence received suggest that the lack of flexibility to the eligibility requirements more generally was a problem and that the lack of uprating of financial thresholds meant that unrepresented defendants were becoming increasingly common in the magistrates’ court.105

65.The Review also noted concerns over the perceived inequalities of those who fail the financial eligibility test and then are acquitted in the Crown Court and then can only recoup their fees at legal aid rates. This has been described as the ‘Innocence Tax’.106 The Proposals for the Reform of Legal Aid in England and Wales (LAR) reforms, undertaken by the Coalition government, changed the rules for acquitted defendants so “that anyone who elected to pay privately were no longer entitled to recoup their privately paid representation fees if they were acquitted”.107 The Review noted that the changes to what acquitted defendants could recoup had contributed to annual central funds expenditure falling by £53m since 2011–12—from £101m to £48m in 2017–18.108

66.The evidence received by the Committee has been highly critical of the effect of the means test on the criminal justice system. James Mulholland QC, Chair of the Criminal Bar Association, told us that:

The means test was set about eight years ago, in 2013, so we are talking about £37,000 of disposable income, and above that no legal aid whatsoever. In terms of access to justice, that is appalling. It is a complete contradiction in access to justice. It is called denial of justice in reality. We should get rid of the means test.109

67.Hollie Collinge, solicitor advocate at Kellys Solicitors in Brighton, told us that in her experience defendants that could not secure legal aid often then decided against paying for representation:

If the idea is genuinely that somebody should pay because they can pay, then why do we find ourselves in a position where, if one of our clients fails the means test and is no longer eligible for legal aid, as soon as we talk about the very reasonable private rates at which they could pay, they are unable to and they say, “No, thanks. We will represent ourselves”? That happens very often.110

The central finding of the Law Society’s 2018 Report, Paying for legal help when ineligible for criminal legal aid, was that “the means testing of legal aid is set at a level that can require people on low incomes to make contributions to legal costs that they could not afford while maintaining a socially acceptable standard of living”.111 The Government should evaluate whether the money saved by the means test is justified when weighed against its impact on the fairness of criminal justice system. If the means tests for the magistrates’ court and the Crown Court are to remain then the current eligibility thresholds should be addressed and thereafter automatically uprated every year in line with inflation.

68.The Magistrates Association’s written evidence outlines that its membership, when surveyed reported significant increases in the number of unrepresented defendants in remand cases, trials and sentencing hearings.112 The Magistrates Association’s survey reported that “an average of over 90% of respondents felt unrepresented defendants negatively affected the court hearing, putting them at an unfair disadvantage in respect of most hearings in magistrates’ court”.113 The official figures indicate that legal aid grants in the magistrates’ court have decreased. In 2019–20, defendants received representation via legal aid in approximately 18% of magistrates’ court cases.114 This was down from 24% in 2012–13.115 There is no official data on the number of unrepresented litigants in the Magistrates’ Court. We recommend that HMCTS should ensure that this data is collected and its impact on the effectiveness of court proceedings is monitored. In the Crown Court, at first hearings in 2020, 94% of defendants were represented by an advocate (i.e. a barrister), 5% had a solicitor but no advocate (or unknown advocate representation), and 2% had no solicitor and no advocate (or unknown advocate representation). At the Crown Court, legal aid was granted in approximately 93% of cases in 2019–20, and this figure was higher than in recent years, in which it has stayed around 87%.116

69.In relation to the rule which means that acquitted defendants can only recover costs at legal aid rates, the so-called “innocence tax”, we are concerned that this rule does not strike a fair balance between prosecution and defence. We recognise that the measure has contributed to some savings to central funds, but those savings do not outweigh the damage to the fairness of the criminal justice system.117 Our recent report on private prosecutions noted that at present private prosecutors are able to recover their costs from central funds without being capped at legal aid rates.118 They are able to recover costs even if the prosecution does not secure a conviction. The Government’s response to our report on private prosecutions concluded that the rules should be changed to level down what private prosecutors can recover from central funds.119 Our view is that this is the wrong approach. The right approach would be to make the system fairer by levelling up and removing the cap on what reasonable costs acquitted defendants may recover from central funds.

Young suspects and legal aid

70.Dr Vicky Kemp’s evidence to us suggested that there ought to be an ‘opt-out’ rather than ‘opt-in’ approach to legal advice for young suspects.120 Charlie Taylor’s 2016 Youth Justice Review made the same recommendation:

I propose that children should not be required to make a decision about seeing a solicitor. Rather there should be a presumption that a solicitor is called and legal advice is provided, unless the child expressly asks not to.121

71.Charlie Taylor also recommended that the Ministry of Justice “should review the fee structure of cases heard in the youth court in order to raise their status and improve the quality of legal representation for children”.122 A number of submissions to us supported Taylor’s recommendations.123

72.Kate Aubrey-Johnson’s evidence to us proposed that youth court work should be remunerated at higher rates than the adult magistrates’ court and that police station funding needs to include additional funding for police station engagement in cases with child suspects.124 Just for Kids Law’s evidence argues that the “interest of justice test in criminal legal aid fails to protect children and risks their access to a fair trial”.125 They also argue in favour of a presumption that all children, including 16 and 17-year-old children, should be protected by a presumption of grant of criminal legal aid.126 Transform Justice also makes the point that the current fee regime does not reflect the complexity of youth courts’ work:

The youth court has the power to impose up to two years custody—much greater powers than the magistrates’ court. Defendants under 18 are all vulnerable, and are often extremely challenging to represent. But lawyers get paid no more to deal with a serious assault trial in the youth court than they do for a theft trial in the magistrates’ court.127

Garden Court Chambers’ evidence also argues that the fee structure has a negative impact on the quality of children’s representation.128 This reaffirms the evidence that the current fee structure does not do enough to provide incentives for lawyers to provide high-quality advice on the most complex cases outside the Crown Court.

73.The fee structures for youth court work encapsulates the problems with the current criminal legal aid framework. The system does not do enough to prioritise the areas that are most in need. A whole criminal justice system approach to criminal legal aid would recognise the special needs of those in the youth courts and creates a structure that supports specialist legal representation for children. We recommend that the Government implement the recommendations of the Taylor Review of Youth Justice: to review the fee structure of cases heard in the youth courts in order to raise their status and improve the quality of legal representation for children and to introduce a presumption that children should receive free legal representation at the police station.

Technology and access to justice

74.Technological change is having a major impact on the criminal justice system. Covid-19 has dramatically increased the use of technology, particularly in facilitating the use of remote hearings, but also in the delivery of legal services. However, in relation to criminal legal aid, the evidence we have received suggests that much more can be done to use technology to expand and enhance access to legal services provided by legal aid practitioners.

75.Vicky Kemp’s evidence highlights that technology could make legal advice more accessible to detainees in police custody suites:

[T]he lack of visibility of lawyers in police custody suites can discourage detainees from requesting legal advice, mainly because they are concerned this will lead to further delays. When testing out an app to help inform suspects of their legal rights, detainees were asked if it would make a difference to having legal advice if there was a virtual and confidential link to a lawyer, via a TV monitor embedded into the cell wall (with a toughened screen). Some detainees were excited about this prospect, saying that they would change their mind and have legal advice if it was so easy to speak to their lawyer. With police custody increasingly becoming a virtual site, this also provides an opportunity for lawyers to become more involved in detention decision-making and in supporting their clients.129

Vicky Kemp has also argued that technology could make legal advice more accessible for those interviewed voluntarily by the police.130

76.By contrast, Transform Justice’s evidence focuses on the limitation of remote advice and advocacy for suspects and defendants. Transform Justice’s evidence states that there is evidence to suggest that video links can be a barrier to the client-lawyer relationship.131 A joint report titled ‘Not remotely fair?’ by Transform Justice, the National Appropriate Adult Network and Fair Trials, published in February 2021, looked at the effect of remote legal advice on children and mentally vulnerable people.132 The findings were based on an online survey carried out with trained appropriate adults, many of whom continued to attend police custody throughout the pandemic. The report found that:

The report recommends a return to in-person advice and assistance for all suspects as soon as possible.134 The report also concludes that further research on the impact of remote legal assistance on suspects, particularly children and vulnerable adults is urgently needed.135

77.When considering whether to rely more on technology to deliver criminal legal aid services it is vital that concerns around digital exclusion and whether remote legal assistance is appropriate for certain individuals are considered. Convenience should not be prioritised over quality, and as such we agree that much more research is needed on the impact of remote legal advice before it becomes the default, in any setting, and especially in police stations. That said, it is also important to recognise that technology, used appropriately, could as Dr Vicky Kemp suggests, both expand and enhance the provision of advice by lawyers to suspects and defendants.136 Dr Kemp’s evidence also highlights how technology could be used to increase the visibility of lawyers without necessarily losing physical presence at the actual interview.137 Other witnesses have also stressed how technology can facilitate increased contact between prisoners and their legal advisers, for example. James Mulholland QC, Chair of the CBA argued that “facilitating conferences, facilitating access to defendants on a more regular basis as well as physical contact, is immensely important”.138

78.There is a risk that many aspects of the criminal justice system, namely the courts, the police and the CPS, are able to benefit from improved technology but defence services will be left behind. The Birmingham Law Society’s evidence submits that most crime firms will not have the resources to invest in improved devices and case management software to keep up with the rest of the system.139 The Government should consider how technology can be used to increase the accessibility of legal advice to suspects and defendants. The Government should also consider developing a scheme to enable criminal legal aid providers to upgrade their digital capacity.

Conclusion

79.The Committee’s separate inquiry into Court Capacity received evidence that indicates that it is likely that the number of criminal cases going through the justice system is likely to increase significantly over the next decade.140 The number of police officers is due to increase significantly and the Institute for Government told the Committee that their modelling indicates that will lead to a 15% increase in the number of cases that need to be heard and consequentially a 15% increase in the capacity required in the courts by 2023.141 CREST Advisory also told us that their modelling projected that there will be an increase in more serious cases, with a higher charge rate, coming into the criminal justice system.142 If the capacity of both the police and the courts increase significantly over the next decade, this will have knock on effects on criminal legal aid providers. The increase in throughput could be positive for criminal legal aid providers, however, we have real concerns that the current legal aid framework would not be able to rise to the challenge of a significant increase in demand. We are concerned that in certain areas there simply may not be enough lawyers to do the work. Even if there are enough in the next few years, with rising levels of student debt, the longer-term pipeline looks much more problematic, especially in terms of the next generation of mid-career practitioners, who are needed for the most complex publicly funded cases. Moreover, the current fee structure does not provide much of an incentive for defence practitioners to invest time in complex cases before they reach the Crown Court. Unless, the system provides more of an incentive to work on complex cases at every stage of the process, it is likely that practitioners will have to focus on quantity over quality.

80.Successive governments have prioritised efficiency and costs over the quality of the criminal justice system. The Committee’s inquiry into Court Capacity has highlighted the difficult situation facing the courts at the start of the pandemic. Unless there is significant change to criminal legal aid, there is a real risk that the balance between defence and prosecution, which is at the heart of our adversarial justice system, will be unfairly tilted in favour of the prosecution. The fairness of the criminal justice system depends on a criminal legal aid system that is properly funded and that is structured to enable lawyers to provide high-quality work on the most complex cases at every stage of the process. The Government’s response to the independent review of criminal legal aid must ensure that criminal lawyers are paid for all the work they do to represent their clients and that fees and rates are regularly reviewed so that the profession can remain sustainable for the long-term.

9 Justice Committee, Oral evidence: Coronavirus (Covid-19): The impact on prison, probation and court systems, HC 299 Tuesday 19 January 2021 Q253

10 Justice Committee, Criminal Legal Aid, Twelfth Report of Session 2017–19, HC 1069, para 7

11 MoJ, Legal aid statistics, January to March 2021, table 1.1; HM Treasury, GDP deflators at market prices, and money GDP March 2021 (Quarterly National Accounts)

12 Richard Miller, A turning point for legal aid? Law Society Gazette 17 December 2020

13 Ministry of Justice, Post-Implementation Review of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, (2019) para 199

14 These regulations have been amended by 15 subsequent amending regulations.

15 Dr Vicky Kemp (Principal Research Fellow at U) (LEG0015)

16 Independent review of criminal legal aid, Summary Information on Publicly Funded Criminal Legal Services p48–56

18 The Criminal Bills Assessment Manual explains how the Escape Fee Thresholds work in police station cases para 5.13. In practice, firms get paid the work done in excess of the fixed fee threshold (in addition to the fixed fee).

19 The Criminal Legal Aid (Remuneration) Regulations 2013.

22 Justice Committee, Criminal Legal Aid, Twelfth Report of Session 2017–19 (HC 1069) paras 12–24

23 Justice Committee, Criminal Legal Aid, Twelfth Report of Session 2017–19 (HC 1069) paras 44 and 75.

24 Ministry of Justice, Post-Implementation Review of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, (2019) para 890

25 Ministry of Justice, Post-Implementation Review of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, (2019) para 1044

26 Ministry of Justice, Post-Implementation Review of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, (2019) paras 1059–1062

27 Ministry of Justice, Post-Implementation Review of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, (2019) para 1078

31 Ministry of Justice, An accelerated package of measures amending the criminal legal aid fee schemes, Government Response, 2021 para 4

37 Justice Committee, Oral evidence: The work of the Lord Chancellor, HC 225 Tuesday 1 December 2020, Q177

39 Independent review of criminal legal aid, Summary Information on Publicly Funded Criminal Legal Services; APPG on Legal Aid, Inquiry into Sustainability, workforce survey

40 Independent review of criminal legal aid, Summary Information on Publicly Funded Criminal Legal Services p8

41 Independent review of criminal legal aid, Summary Information on Publicly Funded Criminal Legal Services p23

44 Birmingham Law Society (LEG0024)

45 Birmingham Law Society (LEG0024)

48 Dr James Thornton (Lecturer in Law at Nottingham Trent University) (LEG0034)

53 Birmingham Law Society (LEG0024)

54 Dr Lucy Welsh (Senior Lecturer in Law at University of Sussex) (LEG0011)

55 Dr James Thornton (Lecturer in Law at Nottingham Trent University) (LEG0034)

56 The Law Society of England and Wales (LEG0070) APPEAL (LEG0085) Young Legal Aid Lawyers (LEG0095) Legal Aid Practitioners Group (LEG0096) Tuckers Solicitors LLP (LEG0101) Dr Vicky Kemp (Principal Research Fellow at U) (LEG0015)

60 The Bar Council (LEG0073)

64 APPG on Legal Aid, Westminster Commission on Legal Aid, first Oral Evidence Session Sustainability of the Criminal Legal Aid Profession, 29th October 2020

66 Justice Committee, Criminal Legal Aid, Twelfth Report of Session 2017–19 (HC 1069) paras 87

67 For example, Dr Roxanna Dehaghani (Senior Lecturer in Law at Cardiff University); Dr Daniel Newman (Senior Lecturer in Law at Cardiff University) (LEG0022)

68 Fixed or graduated fees for criminal legal aid predate the Carter Review. See House of Commons Constitutional Affairs Committee, Implementation of the Carter Review of Legal Aid, Third Report of Session 2006–07 paras 53–57

69 See paras 9–12 above

70 Dr Vicky Kemp (Principal Research Fellow at U) (LEG0015)

71 Dr Roxanna Dehaghani (Senior Lecturer in Law at Cardiff University); Dr Daniel Newman (Senior Lecturer in Law at Cardiff University) (LEG0022)

72 Dr Roxanna Dehaghani (Senior Lecturer in Law at Cardiff University); Dr Daniel Newman (Senior Lecturer in Law at Cardiff University) (LEG0022)

73 APPG on Legal Aid, Westminster Commission on Legal Aid, first Oral Evidence Session Sustainability of the Criminal Legal Aid Profession, 29th October 2020

74 Transform Justice (LEG0013)

75 Transform Justice (LEG0013)

77 Justice Select Committee, Oral evidence: Private prosecutions: safeguards, HC 248 Tuesday 25 May 2021 Q108

78 Justice Select Committee, Oral evidence: Private prosecutions: safeguards, HC 248 Tuesday 25 May 2021 Q108

79 Dr James Thornton (Lecturer in Law at Nottingham Trent University) (LEG0034)

80 See table 3 below

81 Dr James Thornton (Lecturer in Law at Nottingham Trent University) (LEG0034)

83 Dr Roxanna Dehaghani (Senior Lecturer in Law at Cardiff University); Dr Daniel Newman (Senior Lecturer in Law at Cardiff University) (LEG0022)

84 Transform Justice (LEG0013)

85 Transform Justice (LEG0013)

86 Dr Roxanna Dehaghani (Senior Lecturer in Law at Cardiff University); Dr Daniel Newman (Senior Lecturer in Law at Cardiff University) (LEG0022); Dr James Thornton (Lecturer in Law at Nottingham Trent University) (LEG0034); Criminal Law Roundtable 8 February 2021

87 Transform Justice (LEG0013)

88 Dr Vicky Kemp (Principal Research Fellow at U) (LEG0015)

91 Dr Roxanna Dehaghani (Senior Lecturer in Law at Cardiff University); Dr Daniel Newman (Senior Lecturer in Law at Cardiff University) (LEG0022)

92 The Law Society, Criminal duty solicitors: a looming crisis, 7 July 2021

93 Tuckers Solicitors LLP (LEG0101)

94 Tuckers Solicitors LLP (LEG0101)

95 APPG on Legal Aid, Westminster Commission on Legal Aid, first Oral Evidence Session Sustainability of the Criminal Legal Aid Profession, 29th October 2020

102 Ministry of Justice, Post-Implementation Review of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, (2019) paras paras 1020–1022

103 Ministry of Justice, Post-Implementation Review of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, (2019) para 1067

104 Ministry of Justice, Post-Implementation Review of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, (2019) para 1068

105 Ministry of Justice, Post-Implementation Review of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, (2019) para 1077

106 The Bar Council (LEG0073)

107 Ministry of Justice, Post-Implementation Review of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, (2019) para 1025

108 Ministry of Justice, Post-Implementation Review of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, (2019) para 1044

112 Magistrates Association (LEG0035)

113 Magistrates Association (LEG0035)

115 Please note that this does not give a perfect representation of the proportion of defendants receiving legal aid at criminal courts for the following reasons: cases received by the court in a given period might not be the same cases that appear in the legal aid figures for grants of representation; legal aid grants for representation at magistrates’ courts includes some civil cases, while the court caseload figures are for criminal cases only; cases involving multiple defendants will show up once in the caseload figures but could appear more than once in the legal aid grants figures; and these figures exclude services provided through legal aid at the pre-court stage: for example, advice at the police station.

117 Transform Justice (LEG0013) The Bar Council (LEG0073) Young Legal Aid Lawyers (LEG0095)

118 Justice Committee, Private prosecutions: safeguards Ninth Report of Session 2019–21, HC 497

119 Justice Committee Private prosecutions: safeguards: Government Response to the Committee’s Ninth Report Tenth Special Report of Session 2019–21. HC 1238 para 3

120 Q186; Dr Vicky Kemp (Principal Research Fellow at U) (LEG0015)

121 Charlie Taylor, Review of the Youth Justice System in England and Wales (2016) para 69

122 Charlie Taylor, Review of the Youth Justice System in England and Wales (2016) para 104

123 Kate Aubrey-Johnson (Chair at MoJ Youth Advocacy Working Group) (LEG0099), Just for Kids Law (LEG0055)

124 Kate Aubrey-Johnson (Chair at MoJ Youth Advocacy Working Group) (LEG0099)

125 Just for Kids Law (LEG0055)

126 Just for Kids Law (LEG0055)

127 Transform Justice (LEG0013)

128 Garden Court Chambers (LEG0044)n

129 Dr Vicky Kemp (Principal Research Fellow at U) (LEG0015)

130 Dr Vicky Kemp (Principal Research Fellow at U) (LEG0015)

131 Transform Justice (LEG0013)

132 Transform Justice, Not remotely fair: Access to a lawyer in the police station during the Covid-19 pandemic (2021)

133 Transform Justice, Not remotely fair: Access to a lawyer in the police station during the Covid-19 pandemic (2021) p.7

134 Transform Justice, Not remotely fair: Access to a lawyer in the police station during the Covid-19 pandemic (2021) p.29

135 Transform Justice, Not remotely fair: Access to a lawyer in the police station during the Covid-19 pandemic (2021) p.29

136 Dr Vicky Kemp (Principal Research Fellow at U) (LEG0015)

137 Dr Vicky Kemp (Principal Research Fellow at U) (LEG0015)

139 Birmingham Law Society (LEG0024)




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