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July 22, 2019

Criminal defence in an age of austerity: Zealous advocate or cog in a machine?

This is a guest blog by Jonathan Black which appears as the afterword to our new report on criminal defence.

In libel-proofing their book, The Secret Barrister will no doubt have entered “Keres & Co” into the search engine to ensure that, in name at least, this firm was their creation. If anything, Keres & Co is the creation of the Ministry of Justice and its subsidiary the Legal Aid Agency.

Over the past decade, criminal defence has transitioned from being an honourable and moderately profitable discipline of law to one reduced to trying to minimise the amount of work conducted at a loss. The 2014 Otterburn report found that criminal law firms run on an average profit margin of 5%. Since then, defence practices have suffered an 8.75% cut imposed by the Ministry of Justice, a downturn in volume due to clients being released under investigation and fewer prosecutions, and a recent trend by the Legal Aid Agency to reduce payments for time spent reviewing evidence. Low fixed fees for police station work put pressure on on-call solicitors to get matters processed efficiently. The prospect of out of hours work ahead of a full day in court is not conducive to wellbeing. The police, unlike lawyers, work on a shift system and so have little incentive to speed things up. And a defence solicitor can spend hours with a client in a police station only for Keres & Co to pitch up post-charge, claiming to have been sent by the family, and sweep the client away with one quick signature. Ultimately it is often more time efficient for on-call solicitors to delegate these attendances to unqualified reps so that they can continue with other fee-earning or administrative duties.

Fees for court work are insufficient too: one stark example is the £330.33 paid to a defence firm if a case goes to the Crown Court but the prosecutor drops charges shortly before the trial. This amount is meant to cover the time spent preparing the case, representing the defendant at the magistrates’ court, instructing experts, visiting prisons and speaking to witnesses. In many cases fixed fees are so unrewarding that firms can only survive by introducing privately funded work, or focussing on large multi-defendant page-heavy cases, both of which take senior lawyers away from standard criminal defence work. Survival is based upon the increasingly bloody battleground of large cases. The alternative is for firms to stop providing standard criminal defence work altogether.

Caught between an increasingly uncooperative Crown Prosecution Service and a Legal Aid Agency determined to reduce payments, firms are getting tired of the ongoing battle to find margins of profitability. Significant numbers of highly regarded firms have taken the view that criminal legal aid work is being devalued beyond viability, paving the way for a two-tier system of large factory firms or Keres & Co type firms. Clients face the unpalatable choice of being passed along a conveyer belt of lawyers and clerks or risking their liberty in the hands of firms prepared to cut corners to ensure profitability.

The Ministry of Justice tells itself that while firms are still prepared to conduct criminal defence work, there is no issue. The auditing process coupled with peer reviews, it believes, can weed out poor quality. In reality, the oppressive regime imposed by the Legal Aid Agency does not assess quality by outcomes or caseloads but by the ability to jump through compliance hoops. Firms choosing to focus on outcomes and genuine client retention are penalised.

The current criminal legal aid contract is becoming unfeasible for firms who pride themselves on high quality provision, leading to the rise of the Ministry of Justice’s own Frankenstein’s monster – firms which put profit before those they represent. It is only when the Ministry of Justice accepts this that legally aided clients will get the robust defence that they deserve.

Jonathan Black

Criminal defence lawyer and President of the London Criminal Courts Solicitors’ Association