Due to many years of under investment the criminal justice system in England and Wales is crumbling.
Things are going wrong at every level and every stage. It’s become a nightmare journey through the system for the accused, for victims and for solicitors alike.
Five problems facing the system
Increasing shortages of criminal duty solicitors
Within five years there could be areas in England and Wales where people who have been arrested won’t be able to access a duty solicitor. This means they won’t be able to get the free legal advice they’re entitled to.
The Law Society has published data which shows a looming crisis in the numbers of criminal duty solicitors working in England and Wales right now. In the future, many individuals will be left unable to access their right to a solicitor and free advice within a reasonable time, if at all.
The mean average age of a criminal duty solicitor across the whole of England and Wales is now 47, and in many regions the average age is even higher.
The Law Society data highlights that in 5 to 10 years’ time there could be insufficient criminal duty solicitors in many regions, leaving individuals in need of legal advice unable to access justice.
This could have a catastrophic effect on the criminal justice system, as members of the profession retire and leave a shortage of experienced practitioners. This will impact on both access to justice and on valuable police time.
One explanation for these shortages is because criminal defence solicitors have received no fee increase since 1998. Instead, fees have been reduced and removed. Inflation has led to a significant real terms reduction. Combined with other cuts to the system including court closures, many lawyers no longer see a viable career doing this work. It is difficult to attract and retain new members of the profession.
The Law Society campaign
The Law Society is therefore calling on the Government to conduct an economic review of the long-term viability of the criminal legal aid system and to guarantee that criminal legal aid fees will rise with inflation.
Today it was announced that the Government had suffered another setback in its relentless attack on publicly funded legal representation. Since being forced to withdraw its controversial two-tier plan for criminal work it has been forced to re-instate certain prison law cases into the scope of legal aid and had to abandon a scheme to tender for Housing Duty Solicitor schemes on the basis of both quality and price.
The Government had reduced payments by an unsustainable 37% argued The Law Society, putting at risk the viability of firms providing advice and assistance under the legal aid scheme. This would have a knock on effect for potential clients around the country as local solicitors’ practices had to close.
It is hope that this latest decision will force the Ministry of Justice to the negotiating table to devise a scheme that sees economically viable rates of pay in the most serious and complex of cases.
Bindmans Press Release
Bindmans, the solicitors instructed by The Law Society in judicial review issued the following press release on 3 August 2018:
“Today, a Divisional Court comprising Lord Justice Leggatt And Mrs Justice Carr DBE upheld a judicial review challenge brought by the Law Society to a decision made by the Lord Chancellor to introduce a 40% cut to the maximum number of pages of prosecution evidence (‘PPE’) that count for payment of criminal defence solicitors. The regulations introducing the cut will be quashed (para 143 of the judgment).
In practical terms, the cut has meant a huge amount of work on the most complex Crown Court cases has been unremunerated since December. Payments to criminal defence solicitors have been up to 37% lower, but the Legal Aid Agency has expected precisely the same amount of work to be done as before. This was the first occasion in which a cut of this kind had been made to Criminal Legal Aid.
The Divisional Court’s judgment is highly critical of the way the cut decision was made. Discussions with the Law Society on reform of the LGFS had been in train (para 23), but were “terminated” shortly before Ministry of Justice officials announced proposals to make the cut were announced in 2017. However, consultees were not told about or shown the analysis of costs trends officials had prepared for the Lord Chancellor to answer the “crucial question” of whether a cost judge’s decision had caused a substantial increase in LGFS costs and undermined the policy intention of the scheme (para 93). The Court observes (para 86) “no reason – let alone a good reason – has been given for not disclosing during the consultation process the LAA analysis and its results…”, concluding (para 97): “the failure to disclose this information was a fundamental flaw in the consultation process which made it so unfair as to be unlawful.”
An impact assessment accompanying the consultation paper had compounded the unfairness by giving a“misleading” impression of the basis for the decision (para 94):
“It should also go without saying that consultees are entitled to expect that consultation documents will not be positively misleading. When a draft Impact Assessment is published which purports to set out the “evidence base” for the proposal, including an analysis of costs and benefits and a statement of key assumptions and risks, the reader would understand that any analysis relied on to estimate the increase in expenditure which it was the policy objective to reverse was described in the Impact Assessment. The fact that the responsible Minister has certified that the Impact Assessment “represents a fair and reasonable view of the expected costs, benefits and impact of the policy” would further reinforce that understanding.”
As to the Lord Chancellor’s arguments that consultees ought to have deduced there was an analysis and sought it, the Court comments (para 93):
“It is difficult to express in language of appropriate moderation why we consider these arguments without merit. The first point, which should not need to be made but evidently does, is that consultees are entitled to expect that a government ministry undertaking a consultation exercise will conduct it in a way which is open and transparent.”
The analysis was disclosed for the first time during the course of the litigation and then analysed by the Law Society’s expert witness, Professor Abigail Adams, who identified fundamental errors. The Court went on to hold that these errors meant it had been irrational for the Lord Chancellor to rely on it, It was (para 122):
“we see no escape from the conclusion that the LAA analysis was vitiated by methodological flaws and that no reasonable decision-maker could reasonably have treated the figure of £33m [of increased cost] produced by that analysis as an estimate of increased expenditure attributable to the Napper decision on which reliance could reasonably be placed.”
The Law Society was represented by John Halford, Farhana Patel, Theo Middleton and Patrick Ormerod of Bindmans LLP and barristers Dinah Rose QC and Jason Pobjoy of Blackstone Chambers.
John Halford said today:
“Legal Aid was established, and should function as, a basic, non-negotiable safeguard of fair process and individual liberty in criminal cases. But rather than cherishing this vital part of the British legal system, successive ministers have undermined it with over a decade of cuts based on carelessly made decisions like this one. Had the Law Society not stepped up to defend criminal defence solicitors, the fundamental flaws in the analysis on which this decision was based would never have come to light and their irrationality would have escaped proper scrutiny.””
The main talking points amongst these defence practitioners were:
The fact that the Crown Prosecution is at breaking point. There seems to be no prospect of that organisation of due to the high volume of its caseload. The organisation is unable to fill its advertised posts. The recently publicised problems with, for example, disclosure are simply due to lack of resources.
Defence solicitors are ageing. In a large number of areas a scheme’s youngest member is now older than 50. There appears to be a real concern that defence lawyers as a breed may die out. Recruitment is even more difficult than for the Crown Prosecution Service – lack of prospects and security, and without any of the benefits of working for the Crown.
Flexible working remains on the agenda but will be difficult to progress. The powers that be at HMCTS failed to understand, for example, a requirement to give organisations such as GeoAmey 12 weeks’ notice of any contract amendment before hours can be varied.
The Public and Commercial Services Union, representing court staff, is also putting forward opposition to the plan. It was suggested that at present there was no united between all of the different elements opposed to this change, and the hope is for joined up opposition.
Issues relating to listing are hidden behind ‘lies, damned lies and statistics’. The figures regarding court throughput of work and non-effective trials were being ‘massaged’ by the invention of a notional “Court 60” in many areas. Nottingham, for example, appears to have a ‘Court 99’. Case which everyone knows have to go off due to lack of courts or judges are listed in this court so that it looks as though work is being undertaken within an acceptable time frame. Courts are able to hit centrally imposed targets due to this falsehood, disguising the extent of the problem.
Video links were identified as having little useful effect as a first Crown Court hearing. Little progress can be made due to time constraints and the lack of the physical presence of a client. Seems unlikely, however, that anything will change as the powers that be are wedded to the idea of video conferencing.
Similarly, virtual courts, remote please and bodycam video interviews with suspects are all designed to marginalise the effect of defence lawyers.
It may be that Labour are waking up to the issue of a collapsing system. It seems that they might wish further assistance from bodies such as the Law Society and the Legal Aid Practitioners Group. Representative bodies ought to be feeding information such as the manipulation of statistics or systemic failures into the political discussion, with a view to scrutiny by relevant select committees.
Richard Miller was receptive, spoke well on the subject (as would be expected) and urged the profession to keep up the pressure and publicity about a system in crisis. Perhaps most depressingly, however, nothing which was raised locally had not been said and confirmed at the various other stops that he and his team have made nationwide.
In 2015/16, Ipsos MORI conducted a study on individuals’ legal needs on behalf of the Law Society and the Legal Services
Board (LSB). The main component of the study was an online survey to examine individuals’ experiences of 29 legal issues and the effect of receiving early legal advice.
Large scale survey about the effect of early legal advice
The survey provided quantitative findings from 8,192 participants, which examined the responses from 16,694 issues
This included issues relating to
divorce/dissolution of civil partnerships
injury at work
road traffic accidents
legal issues with mental health issues
repossession or eviction
relationship breakdown issues
welfare benefits; discrimination
legal issues related to children
unfair treatment by the police
These are all issues which may be handled using legal processes but are not necessarily seen as being ‘legal’ in nature by those experiencing them.
The results of the analysis
This report outlines results from analysis comparing the effects on the timing of the resolution of individuals’ legal issues of receiving early professional legal advice compared to not receiving it.
The analysis showed that early advice has a statistically significant effect on the timing of the resolution of people’s legal issues.
Specifically, the analysis showed that for these issues:
On average, a quarter (25%) of people who received early professional legal advice had resolved their problem within 3-4 months of the problem first occurring, whereas for people who did not receive early legal advice it was not until 9 months after the issue had first occurred that 25% had resolved their issue.
Correspondingly, and controlling for other factors that can affect problem resolution, people who did not receive early advice were 20% less likely than average to have resolved their issue at a
particular point in time.
The main other factors affecting problem resolution were the severity of the issues, and people’s previous knowledge of their legal rights. More severe problems, as would be expected, take longer on average to resolve, and people with little previous knowledge of their legal rights were 33% less likely than average to have resolved their issue at a particular point.
Early professional legal advice was defined as ‘within 3 months of the issue first occurring’ as analysis showed that this is a reasonable definition on average across the 17 issues considered.
Professional legal advice covered advice from a solicitor, or other professional advisers such as Citizen Advice Bureaux or
As a result, the report stressed the importance of restoring the ability for individuals to seek early legal advice by receiving legal aid. Advice and assistance in police interview remains free of charge to all. Find out more about that here.
In a reply to a letter by Lord Justice Fulford regarding the Flexible Operating Court Hours pilots, Joe Egan, president of the Law Society, has expressed concern over the controversial scheme.
The President outlines the realities of working as a criminal defence solicitor.
“The financial impacts on hard-pressed solicitors’ firms are likely to be considerable. Fee-earners will still have to undertake other work outside any hearings in the pilot courts, such as duty attendances at the police station and work on other clients’ files. Unlike others working within the court system, with the possible exception of solicitors in the very largest criminal defence firms, they do not have the benefit of being able to work shift patterns.”
He stresses what HMCTS appears to ignore, the fact that work is necessary before and after all court hearings.
“In addition, when a case is listed for hearing, solicitors already work hours on that case that extend outside the normal court sitting hours. A solicitor would normally attend court at 9am for a hearing that starts at 10am, in order to deal with essential preparatory work, including speaking to the client, the prosecution, and any defence witnesses. Similarly there is always work to be done following the hearing: explaining the sentence to the client if necessary and undertaking follow-up paperwork. This means in practice that the proposed court hours are regularly extended by at least an hour at each end of the day, and will therefore extend even further into unsocial hours as a result of these pilots than the sitting times themselves would suggest.”
No Extra Money
Unsurprisingly, there will be no extra money from the Government to subsidise the pilots. Firms will be expected to cover the cost themselves. “The cost of paying overtime to the fee earners who will be working these additional hours will need to be covered by the firms themselves, given that the LAA has made it clear that there will be no additional payments for solicitors working in the pilot courts.”
This comes at a time when the profession is still awaiting a decision on whether there is to be a further 8.75% cut in police station and Magistrates fees, as well as dramatic cuts to Crown Court and Advocate fees.
Hopefully the intention of the flexible operating hours pilot is genuine, and at some point HMCTS will give proper weight to the concerns of practitioners.