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What is the future for legally aided criminal defence?

Penelope Gibbs
18 Feb 2021

How do we manage a criminal defence service in an age of austerity and Covid? That’s a challenge facing Sir Christopher Bellamy, a retired judge who has been asked by the government to conduct an independent review of criminal legal aid. I strongly advise him to read a new article on the crisis in legally aided criminal defence by Roxanna Dehaghani and Daniel Newman. They interviewed criminal solicitors throughout Wales and drew on other research from England.

It is not a cheering picture, particularly about the impact of reduced renumeration on morale and client service. The amount of criminal work has reduced, as has the real value of fees for work done. The fees for duty solicitors have not increased since 1998. In order to make enough money to stay viable firms now have to take on ever more clients. Lawyers interviewed were concerned that this could lead to a reduction in quality.

‘So you probably work out how much work you need to do on a case and know that…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.’ (DS4)

Lawyers interviewed were angry that cuts had driven some to operate a ‘factory sort of system’. The lawyers pointed out that only some cases, mainly Crown Court trials, paid fairly for what the lawyer actually did: ‘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.’ The low pay for police custody work made practitioners feel undervalued: ‘If you’re in the police station on a Saturday night, dealing with an attempted murder, you’ve been a solicitor for eighteen years, you’d expect to earn more than £70 to do that case.’

Lawyers were despondent – most interviewed felt unable to go above and beyond for clients as they once could. One gave an example:

‘Back ten years ago, if there was a road traffic collision, I’d go out and go to the road and have a look at it and take pictures. I’d go around and speak to various people about the incident. If it went to Crown Court, I’d go to Crown Court and seek out Counsel and make sure Counsel have everything ready for the case. Now with the legal aid cuts and the way things are, you don’t get paid for any of that, and there’s less incentive to do a good job other than pride and responsibility and they can only carry you so far, especially with a firm that wants to make money, like every firm does, otherwise we couldn’t stay open. I can’t go out and do the best job that I can do and justify it. I just can’t. I mean, on the more serious ones you can, but on the less serious ones, which are still serious for them, you can’t justify it. There’s no incentive to go out and do anything above and beyond what you’re expected to do and that’s really, really sad.’ (DS2)

Newman and Dehaghani suggest that the goodwill of criminal practitioners has run out, that they feel they are doing enough but no more. ‘In some cases, they cannot afford – or feel unable – to perform certain tasks that may indeed be vital to their client’s case. Legal aid is not necessarily providing those suspected and accused of crime with the full skills and attention of their lawyers (what may be termed a ‘full service’); sometimes, perhaps increasingly, it is compelling talented, knowledgeable professionals to offer a minimal level of service. Enough but not what it could and – according to the professionals that might be considered best placed to judge the quality of legal advice and representation – should be.’

This research was done pre Covid. Since then criminal defence work has reduced considerably, particularly the Crown Court trials which subsidise magistrates’ court and police custody work. So criminal defence is on its knees. More money is part of the answer but, if the government won’t stump up, maybe we need a new model for delivering legally aided criminal defence. Let’s hope Sir Christopher Bellamy isn’t faced with making the judgment of Solomon.