Written evidence from Dr Lucy Welsh, Senior Lecturer in Law, University of Sussex

Introduction:

I am a Senior Lecturer in Law at the University of Sussex, where I am co-director of the Crime Research Centre. I am a Deputy Director of Clinical Legal Education and supervise the Criminal Justice Law Clinic as part of the Sussex Clinical Legal Education programme. I am co-author of the 5th Edition of Sanders and Young’s Criminal Justice (OUP) which is due to be published in 2021. I am currently writing my monograph for Hart, with the provisional title Access to Justice in Magistrates’ Courts: A Study of Defendant Marginalisation.

My primary research interests lie in access to justice in criminal cases. My PhD examined the impact of legal aid cuts in magistrates’ courts, and I have published articles in academic journals and practitioner magazines on that topic. I am currently a co-investigator on an ongoing Economic and Social Research Council funded research project: The Criminal Cases Review Commission: Legal Aid and Legal Representatives. That project was initially instigated by the CCRC to examine how changes to legal aid have impacted the work of the CCRC. The project is funded by the ESRC until 31 March 2021. We have delivered three interim reports to the CCRC.

I am also a practising criminal defence solicitor, although my practice is much diminished since my move to full time academia in 2016. I worked in criminal defence services in Kent from 2004 until 2016.

Submissions:

              How LASPO has impacted access to justice and for views on the post-implementation review and the criminal legal aid review;

LASPO itself did little that immediately affected the provision of legal aid in criminal cases. It’s main influence in this area was the creation of the Legal Aid Agency (LAA) and the enabling provisions that gave the LAA extensive powers to regulate how legal aid funding would be administered in criminal cases. This issue is discussed below.

 

So far as the Criminal Legal Aid Review is concerned, the recognition that defence practitioners play a crucial role in upholding the rule of law, and implicit recognition that the profession is not – at present – fairly paid for the work it does is welcome.

The rest of the response to the accelerated review, however, makes for less optimistic reading. The review stands by the original aim to inject an additional £35-51m per year into criminal legal aid. While an injection of funds is undoubtedly helpful, this sum represents only a tiny fraction of the amount saved by reintroducing means testing and cutting defence fees in 2014. The Bach Commission, which reported in 2017,[1] noted that the government had exceeded its legal aid costs saving projections more than twice over. Much of CLAR and the response so far has been of greater benefit to advocates than to litigators, despite the fact that it is litigators alone who deal with the vast majority of all criminal cases.

Reading the CLAR and the response to the accelerated review in totality, three things are clear:

The government’s response to CLAR noted that the LAA is going to review its processes. This will be welcome news to many practitioners.

              The role of the Legal Aid Agency

It has been a common complaint in our ongoing research that a defensive stance needs to be adopted towards the LAA,[2] and that this creates an extra administrative, unpaid burden on firms. The creation of LAA led to a loss of independence in relation to funding decisions. It’s predecessor, the Legal Services Commission, was a quango with its own research department. When the LAA was created, it brought decisions about public funding in casework directly under the remit of the Ministry of Justice, and lawyers report that the LAA is a much more difficult organisation to deal with than its predecessor. Recently conducted research[3] revealed the following concerns with the LAA, with 11 of 16 participants in a survey reporting that they found the procedure for obtaining legal aid (increasingly) difficult in some way:

“The LAA make the process too burdensome, they appear to want to obstruct applications by querying for example the interests of justice in making an application on behalf of a teenager convicted of murder. They second guess the instruction of experts disregarding detailed explanations.”

 

“LAA also seem to view any effort to progress difficult cases as unjustifiable work”

 

Specifically, in relation to the ‘sufficient benefit’ test that determines whether a client is eligible for publicly funded advice and assistance, lawyers said:

“In theory the test is fine but in practice it is applied in an inconsistent and sometimes unfair way by the LAA”

 

“The LAA consistently assess this test perversely, irrationally and unlawfully”

 

Lawyers also report that it is increasingly difficult to engage expert witnesses at legal aid rates, and who are prepared to accept the funding limitations imposed by the LAA. Cases in which problems locating suitably qualified experts have made national headlines.[4] This issue increases the risk that serious miscarriages of justice will occur.

 

The way that the LAA administers the means test for defendants is also extremely burdensome. Lawyers in one study tended to attribute the uncertainties  involved in applying for legal aid to what are perceived as burdensome bureaucratic requirements (such as the need for self-employed applicants to provide business paperwork).[5] They also felt that specialist legal knowledge is necessary in order to appropriately complete an application for legal aid. Both defence lawyers and prosecutors interviewed felt that defendants struggle with the additional information that is required to satisfy the means test as well as the interests of justice test. By way of example, one defence lawyer described the legal aid application as “virtually designed to irritate and be as difficult as possible to complete…Even intelligent, articulate people who have to fill in this form get it wrong”. Lawyers were also of the view that “there is sometimes a lack of understanding on the Bench, particularly the lay Bench, as to just how difficult it can be to get a client legal aid.” These views were, to some extent, supported by prosecutors.

              Recruitment and retention problems among legal aid professionals;

The 8.75% fee cut introduced by the LAA in 2014 cut into already very thin profit margins (estimated variously at around 5-10%). Although the further 8.75% fee cut proposed to be implemented in 2015 was eventually suspended (not abandoned), the single 8.75% was significant in reducing the capacity of firms to conduct legally aided criminal defence work. This was exacerbated by the fact that there had been no fee increases for over 20 years, amounting to a significant real term cut once inflation was factored in. The cumulative effect of these cuts, alongside increased bureaucracy that also eats into profit margins, not only reduced firms’ capacity to conduct legal aid work, but led to market contraction, which leads to reduced capacity for training contracts/pupillage in publicly funded defence work. There is also a general sense of malaise in the criminal defence profession (which seems to result from both a feeling that they cannot work as thoroughly as they would wish due to fee cuts, and because they feel underappreciated),[6] which leads some to dissuade newly qualified or potential criminal defence lawyers from joining the profession.[7]

There have been warnings about market sustainability for a long time.[8] But it is not just market sustainability overall; some areas of practice in criminal legal aid work are more vulnerable to cuts than others. So, for example, lawyers might cut less profitable appeal casework as it can no longer be subsidised though other areas of practice (such as trial or police station work):

“The funding cuts have decimated turnover. Which means our time has to be prioritised for those cases where we remain hopeful of being paid.”

“Less likely to take on; overall profitability of criminal legal aid work is so low now, and these applications almost inevitably entail pro bono work, it is often simply not financially viable”

“The main issue is that cuts across the board are so extreme that I can no longer fund CCRC as a loss leader.” [9]

Complaints about sustainability are common when defence lawyers are spoken to. Firms report having less capacity to take on work, less capacity to conduct pro bono work, taking the worst paid elements of defence work out of their practice or simply closing their doors to publicly funded defence work altogether.

My own experience also speaks to some of these issues. I qualified as a defence lawyer in 2006. I stayed in private practice until 2015. I had switched to a part time contract when I commenced my PhD in 2011. In my local practice area, approximately 6 young defence lawyers all qualified within a year of two of each other. None of us continue to undertake criminal defence work, and we were not replaced by our firms for many years, nor in a proportionate manner. As one lawyer I interviewed for PhD research said: “The people with options, the brightest will have plan Bs and will take those plan Bs and as soon as they walk out of the criminal legal aid system they will be lost to the system forever because frankly once you have gone through this process you are not going to want to come back to it and you will have an exodus of talent and those that are left behind will provide a far worse service than as is presently the case.”

              The impact of the court reform programme and the increasing use of technology on legal aid services and clients;

The court reform programme has ushered in the closure of courts on a large scale. Between 2010 and 2020, 51% of magistrates’ courts closed.[10] The impact of court closures has been under-researched, but one regional study identified many adverse impacts on magistrates, defendants and defence lawyers, reducing access to the courts for defendants, making travel both time consuming and costly, and reducing diversity among magistrates.[11] Many magistrates have resigned in protest.[12]

Increased use of technology which, it can be assumed, was intended to counter some of the effects of court closures, has had a negative impact on defendant participation. Defence lawyers report increased difficulties when attempting to take instructions and build a rapport with clients via video link.[13] A small sample of former defendants have been asked about their experiences of appearing via video link were concerned that it was more difficult to communicate with their lawyers, and expressed concern about being less able properly participate in proceedings.[14]

 

Ward, among others, further notes that those appearing via virtual court were more likely to be sent to custody than other defendants were,[15] although it must be acknowledged that it may equally be the case that more serious charges are more likely to be dealt with via video link. Gibbs also expresses concern that defendants are less able to properly understand, and participate in, proceedings conducted via video link which has the potential to undermine their right to effective participation under Art 6 ECHR.[16]

              The impact of Covid-19 on legal aid services and clients; and

The increased use of video link procedures as a result of Covid-19 is likely to have exacerbated the problems that clients experience referred to above. The move to conducting many more remote hearings has undermined principles of open justice – especially in the lower courts, where proceedings are never recorded/streamed - and restrict the ability of the press to scrutinise our court and legal system.

              What the challenges are for legal aid over the next decade, what reforms are needed and what can be learnt from elsewhere.

The key challenges for legal aid over the next 10 years are:

 

The following areas require reform:

 

 


[1] http://www.fabians.org.uk/wp-content/uploads/2017/09/Bach-Commission_Right-to-Justice-Report-WEB.pdf

[2] See https://legalaidandrepresentatives.wordpress.com/

[3] See https://legalaidandrepresentatives.files.wordpress.com/2020/10/stage3_summary_v4.pdf. These views were repeated in follow up interview conducted with 45 practitioners. Those interviews are still being formally analysed, but a report is due to be complete but the end of 2020.

[4] See Fouzder, M (2019) Forensics shortfalls and legal aid rates jeopardising trials Law Society Gazette, 15 March; Bowcott, O (2014) Criminal case faces collapse following legal aid cuts for medical experts The Guardian, 1 May

[5] This research was conducted for my PhD; Welsh, L (2016) Magistrates, managerialism and marginalisation: neoliberalism and access to justice, University of Kent. Kemp also found defence solicitors expressing concern about the administrative burdens placed on self-employed defendants who attempt to apply for legal aid (Kemp, V Transforming Legal Aid: Access to Criminal Defence Services <http://www.justice.gov.uk/downloads/publications/research-and-analysis/lsrc/TransformingCrimDefenceServices_29092010.pdf> (2010) accessed 12 December 2011)

[6] Newman, D. and Welsh, L. (2019) The practice of modern defence lawyers: Alienation and its implications for access to justice. Common Law World Review 48(1-2), pp. 64-89.   

[7] Thornton, J (2020) 'Is Publicly Funded Criminal Defence Sustainable? Legal Aid Cuts, Morale, Recruitment and Retention in the English Criminal Law Professions' 40(2) Legal Studies 230

[8] https://www.publicfinance.co.uk/news/2018/07/mps-warn-unsustainable-legal-aid-cuts

[9] See https://legalaidandrepresentatives.files.wordpress.com/2020/10/stage3_summary_v4.pdf

[10] https://commonslibrary.parliament.uk/home-affairs/justice/courts/constituency-data-magistrates-court-closures/

[11] Adisa, O (2018) Access to Justice: Assessing the impact of the Magistrates’ Curt Closures in Suffolk Institute for Social and Economic Research; Ward (2016) Transforming summary justice: Modernisation in the lower criminal courts. Routledge, London.

[12] Halliday, J (2016) ‘Magistrates quitting in 'considerable' numbers over court closures’ The Guardian, 29 November. See Day, A (2019) ‘Magistrates' Courts Are Closing In Communities Across The UK. Is Austerity Harming Our Access To Justice?’ Huffington Post, 20 April

[13] Ward, J ‘Transforming ‘Summary Justice’ Through Police-led Prosecution and ‘Virtual Courts’ (2015) 55 British Journal of Criminology 341. See further Fielding, N., Braun, S. and Hieke, G. (2020) Video Enabled Justice Evaluation. Online at: http://spccweb.thco.co.uk/our-priorities/access-to-justice/video-enabled-justice-vej/video-enabled-justice-programme-university-of-surrey-independent-evaluation/

[14] Fielding, N., Braun, S. and Hieke, G. (2020) Video Enabled Justice Evaluation. Online at: http://spccweb.thco.co.uk/our-priorities/access-to-justice/video-enabled-justice-vej/video-enabled-justice-programme-university-of-surrey-independent-evaluation/

[15] Ward, J ‘Transforming ‘Summary Justice’ Through Police-led Prosecution and ‘Virtual Courts’ (2015) 55 British Journal of Criminology 341. Fielding, N., Braun, S. and Hieke, G. (2020) Video Enabled Justice Evaluation. Online at: http://spccweb.thco.co.uk/our-priorities/access-to-justice/video-enabled-justice-vej/video-enabled-justice-programme-university-of-surrey-independent-evaluation/

[16] Gibbs, P Defendants on video – Conveyor belt justice or a revolution in access? (2017) Transform Justice http://www.transformjustice.org.uk/wp-content/uploads/2017/10/Disconnected-Thumbnail-2.pdf