An immediate £135m cash injection is needed to stop the provision of criminal defence services by solicitors and barristers collapsing, but the market does not need “radical reform”, a major review has concluded.
However, Sir Christopher Bellamy QC’s long-awaited criminal legal aid review highlighted “new possible ways of working”, such as through not-for-profit community interest companies (CICs) and firms specialising in particular kinds of work, supported by block grants from the government.
He said his two guiding principles in conducting the independent review, which was commissioned by the Ministry of Justice (MoJ), were that “the remuneration of criminal lawyers should be such as to attract lawyers of the talent and calibre that the system requires” and that the principle of equality of arms was “central” to the present system of criminal justice.
Expenditure on criminal legal aid reached a peak of £1.2bn in 2004/05 but by 2019/2020 had fallen to £841m, a real-terms decline of 43%.
Some fees for solicitors have remained unchanged for 25 years. “It is difficult to see how this situation can be sustained,” the report said.
As a result, criminal legal aid firms “can neither attract sufficient new blood, because the fee levels restrict the salaries that can be offered, nor retain experienced practitioners because of the higher salaries offered by the CPS”.
Profits too have declined, to a level well below those in other areas of legal practice “and are at present unlikely to incentivise new investment in the sector or compensate the business owners for the risks to which they are exposed”.
With demand for defence services set to rise, with the government recruiting more police and trying to reduce the court backlog, Sir Christopher said: “The criminal legal aid system is already weakened. Absent a substantial increase in funding, there is a high risk that the system will simply be unable to cope with the challenges ahead.”
He recommended an extra £100m for solicitors and £35m for barristers, a 15% increase, as “the minimum necessary as the first step in nursing the system of criminal legal aid back to health after years of neglect”.
He stressed: “I do not see that sum as ‘an opening bid’ but rather what is needed, as soon as practicable, to enable the defence side, and thus the whole CJS [criminal justice system] to function effectively, to respond to forecast increased demand, and to reduce the back-log.
“I by no means exclude that further sums may be necessary in the future to meet these public interest objectives.”
Noting that it was three years since his review was announced, Sir Christopher said: “There is in my view no scope for further delay.” But it should also go hand in hand with his recommended modernisation of the various payment schemes, he added.
However, Lord Chancellor Dominic Raab said the MoJ’s response to the review would be published “no later than the end of March 2022 alongside a consultation on all policy proposals”, indicating that action is not imminent.
The review said “a radically different” model of provision – such as a major expansion of the Public Defender Service – was unlikely to improve upon the current system.
“Indeed, despite the difficulties, providers whether solicitors or barristers, compete if not on price, on quality, service and reputation, most often under the unforgiving searchlight of a public hearing.
“In my view the present model has also shown itself capable of adapting, and is still adapting, to the digital age while maintaining the ethos of a fair system of criminal justice.”
Sir Christopher considered a “principal lesson from the failed attempts at reform” between 2010 to 2016 to be the difficulty of devising “top down” solutions on such a complex market.
Yet there were “evolutionary” changes, subject to “further reflection and pilots”, that could help.
He highlighted South London firm Commons Legal, a non-profit CIC set up in 2017, whose lawyers cap their salaries and work as a community law firm, and which works on a holistic basis, recognising that a criminal client typically has a range of problems.
“Commons Law deals with a client’s criminal matter like a normal law firm, but also provides continuing support for the client in dealing with their wider problems, for example, making referrals or liaising with health professionals, social workers, care providers, local councils, and charities to tackle the underlying issues that may have given rise to the criminal behaviour in the first place.”
This raised the question, the report said, of whether CICs or similar should not be limited to crime but be able to deal with civil cases as well, “possibly grant aided to work in areas of insufficient supply”.
“That then takes one into the much wider issue of whether the separate schemes for civil and criminal legal aid should mesh together better, or even evolve into a single scheme.
“That question is outside the scope of the review, but is perhaps for future consideration as a way of focussing on the particular individual rather than whether the problems are to be classified as ‘civil’ or ‘criminal’.”
Sir Christopher acknowledged that his reforms would not necessarily ensure that private law firms would be able to provide adequate criminal legal aid coverage in all areas.
“To fill these gaps, it would be open to the MoJ to invite tenders from CICs or similar bodies to fill these gaps, and it may be necessary for such non-profit providers to be grant-aided in order to encourage take up.”
The review said that while most law firms covered the range of criminal work, “one could envisage different models whereby some firms, for example, did not aspire to do the more complex cases, or in one form or another limited themselves only to less serious ‘run of the mill’ work, or to the magistrates’ court only, for example”.
The current legal aid contract did not accommodate such specialisation but adjusting the regulatory and compliance framework for such firms could impose lower administrative and insurance costs.
“One effect of this would be to lower entry costs, and facilitate entry, for example by CILEX firms operating simpler models.
“My recommendation that each of the main criminal legal aid work streams should be self-supporting, as distinct from the present position where loss making work has to be cross-subsidised by other work, could render this suggestion more feasible, and result overall in lower costs to the taxpayer.”
A related idea was niche providers: “It seems to me that the emergence of new kinds of firms, supported by block grants from the MoJ, specialising in particular kinds of work, young offenders for example, or neglected areas such as appeals or prison law… is an approach that should be seriously considered with a view to possible pilots, as a means of addressing possible gaps that the market cannot adequately address.”
Other key findings and recommendations included:
- The MoJ should consider allowing LAA to provide specific funding to legal aid providers to bring in trainees, targeted to areas where there is a particular shortage of specialist advice;
- Individual chambers, or the Inns of Court, or the MoJ, should make available top-up grants to ensure that young criminal legal aid barristers are not excluded from the profession for purely financial reasons in the initial period after expiry of a pupillage award;
- The Solicitors Qualifying Examination could open “wider possibilities for qualifying as a solicitor”, after which a transfer to the Bar could become a more common alternative to the traditional pupillage. “I hope that would be welcomed by the publicly funded Bar”;
- The primary objectives of the LAA should be “to support the resilience of the system of criminal legal aid, to reduce bureaucratic burdens on providers, and not ‘to save the pennies at all costs’”;
- An independent advisory board should be established to advise the Lord Chancellor at regular intervals on the arrangements for the delivery of criminal legal aid;
- The MoJ should encourage and facilitate local arrangements for improving lines of communication between the defence, the police, the Crown Prosecution Service and the courts
- The LAA should work with the MoJ and solicitors’ representatives “to determine why the gender balance in relation to duty solicitors is in favour of male solicitors, and if so what steps should be taken to achieve a more equal gender balance”;
- The MoJ, the Bar Council and the Bar Standards Board should establish to what extent, and if so why differences exist in the publicly funded incomes earned or the work undertaken by criminal legal aid barristers on the basis of gender or ethnicity, “with a view to taking any necessary corrective action”; The LAA and MoJ should review the provisions regarding the acceptance of CILEX members as duty solicitors;
- The BSB and the SRA should work with the Bar Council and Law Society, and the Youth Justice Board as appropriate, to develop a training and accreditation scheme for Youth Court work.