Criminal Legal Aid Review
Saturday 4th July 2020
Criminal defence lawyers are looking to work in other areas of practice are they are unmotivated by the low rates of pay. That crucial part of the legal career is in a critical situation.
At the end of 2018, the ministers started a review of legal aid after listening carefully to matters raised by the criminal defence lawyers. The Ministry of Justice (MOJ) began to change how criminal justice works.
The review of the criminal legal aid fee schemes had taken into account the life cycle of a criminal case, including:
● Pre-charge advice at the police station advice and advocacy services in the Magistrates' Court and Youth Court, and advice and advocacy for prisoners
● advice and litigation services in the Crown Court through the Litigators' Graduated Fee Scheme (LGFS)
● advocacy services in the Crown Court through the Advocates' Graduated Fee Scheme (AGFS)
● litigation and advocacy services for very high-cost Crown Court cases though the Very High-Cost Case (VHCC) Scheme
The review had two primary objectives:
1. To rectify the criminal legal aid fee schemes to:
a. adequately pay for practice
b. assist the sustainability of the market, including:
iii. career progression
c. provide value for money for the citizen, facilitate efficient case development,
maximum unreasonable incentives, support just
d. ensure cases are handle by criminal defence attorneys with the right expertise and
2. To transform the criminal legal aid market to make sure that the provider market:
a. react to changes in the system, engage in working practices, and bring value for
money for citizens
b. performs to guarantee that criminal defence lawyers present legal aid services with
the right expertise and knowledge
c. to encourage a different labor force and to guarantee the right level of lawful aid
The review was closed by the MoJ on 17 June 2020, and unfortunately, the proposals have weakened the government's goals of improving the working of the criminal justice system. The truth is that they are doing nothing to avoid the debacle of criminal defence firms, resulting in both the offender and the victim going without amends in the future.
For criminal defence attorneys, the proposals do not go deep enough to avoid the critical situation in providing criminal legal aid to those who require it.
Besides, there are other concerns about:
● the reduction of work after the coronavirus outbreak
● the urgent need for extra help for legal aid attorneys
Impact On Criminal Legal Aid Lawyers
Due to the crisis in the criminal legal aid fee schemes, there are fewer police officers, more than six hundred police stations have closed and half of the Magistrates' Courts. Since 2012, there has been a forty-five percent reduction in prosecutions, and more suspects have been Released under Investigation.
According to the Law Society, the average age of a duty attorney in England and Wales is 47. There has been a 36% decline in law firms with a criminal legal aid contract since 2010. There has been a 29% decrease in Duty Solicitors to make things worse.
Unfortunately, there are fewer aspiring junior attorneys who want to make a career in criminal legal aid due to long working hours and low payment. Even though many junior attorneys are interested in criminal practice law, the low pay and lack of job security put them off.
Criminal law is losing out on talent as juniors are looking for more attractive and lucrative careers with better proposals. It is hard for someone to join a sector that has not cash incentives since thirty years ago. From a junior starting their legal career, there is little motivation.
The biggest problem is that if there is no significant change in the conditions, it will be challenging to provide criminal legal aid in the future. There will be no criminal defence attorneys sitting on courts; once it is gone, it is gone.
What The Criminal Defence Sector Needs
It is imperative to see the profession jointly willing to continue supporting criminal legal aid. There should be a campaign seeking an increase in the rate of remuneration. After all, there is no justice without an expert legal aid attorney.
According to the Law Society, the fees must:
● permit criminal defence firms to enlist and retain new counsellors
● keep the criminal defence practice diversified
● facilitate career progress
● reflect the 24-hour service
● be increased and held at an adequate level
It is essential that the government agree to inject money into the fee schemes; if not, it will soon find that there is not Defence Practitioner Advisory Panel. That's why there should be a stimulus for attorneys at the right level of seniority to do the work. There should be an improvement in fees for work in the youth court.
To make matters worse, on 1 November 2019, the Crown Prosecution Service declared information with regards to an increase in remuneration for CPS lawyers.
It is vital to reward early work by providing payment for consideration of the disclosure of evidence early in the case and front-loading of Crown Court fees. Fees should reflect the work needed for guilty pleas and payment for looking at unused material.
The Criminal Legal Aid Review considered the volume, nature, and distribution of unused material to inform how the legal aid fee schemes can better reflect work done. The improvements are formed of two elements:
1. a case file review to be finished by attorney firms
2. a qualitative questionnaire to be concluded by barristers
The Crown Prosecution Service (CPS) had also undertaken an exhaustive review of 3,000 Crown Court cases to classify the volume and type of case material, the amount of material being shared with, and the level of activity handle by the prosecution lawyer at each step of the case including a review of unused material.
They asked criminal defence attorney firms to do a similar exercise to develop an evidence base on the volumes and nature of unused material, and the work it requires from defence lawyers.
It is essential to have a fair payment for extra hours of work and to receive a refund for work that is currently unpaid.
Any new fee scheme needs to adapt to changes in technology and changes in society, police practice, court and police station consolidation, and case mix.
There should be a cost of avoidable waste in the system; for instance, a bureaucratic mistake or lack of preparation should be carried by the people or firm causing the waste.
Finally, there must be reviews every year, based on information on whether the costs are accurately paying attorneys for their practice; and every year in line with inflation fees should increase.