Submission to the Justice Committee on Legal Aid
Transform Justice is a charity which campaigns for a fairer, more humane, more open and effective justice system. We have published four reports which touch on the issues surrounding criminal legal aid: Criminal defence in an age of austerity: zealous advocate or cog in the machine?, Justice denied? The experience of unrepresented defendants in the criminal courts, Defendants on video – conveyor belt justice or a revolution in access and Innocent but broke – rough justice? Our submission will focus on criminal legal aid.
Our research has found significant issues with the current criminal legal aid model. Access to justice is not just a matter of who is eligible for criminal legal aid, but also the quality of the legal advice and advocacy provided. Our research indicates significant shortcomings with the quality of criminal legal aid provision, due to various perverse incentives baked into the current criminal legal aid model which Laspo has exacerbated. The system of criminal legal aid provision needs to be remodelled to eliminate perverse incentives and improve quality.
Eligibility for criminal legal aid
Criminal legal aid thresholds were little changed by LASPO. The defendant/suspect’s right to a legally aided lawyer has not changed since 2010, when means testing was introduced for Crown Court cases. Means testing for magistrates’ court cases was re-introduced in 2006 and applies in nearly all circumstances. The assessment of means hasn’t changed since 2006 – there has been no adjustment for inflation. Those with a disposable household income of £22,325 or more do not meet the magistrates’ court means test.
The main criterion for being eligible for criminal legal aid (apart from the means test) is whether the defendant is accused of an imprisonable offence. In practice very few people get criminal legal aid unless they do meet this criterion – the Widgery criteria are broader, but are very seldom accessed by adult defendants. In the magistrates’ courts a huge number of offences are not generally eligible for legal aid including most motoring offences.
In the magistrates’ court people are either eligible for legal aid or not. At the Crown Court the poorest defendants have all their criminal legal aid costs paid. But defendants with a disposable household income of £3,398 - £37,500 have to contribute to the cost of their defence on a sliding scale. Many defendants paying these contributions say they are left with insufficient money to live on.
The legal aid system is confusing for defendants and some quite poor defendants just seem to fall through the cracks. Either they do not understand they have a right to a legally aided lawyer or, in the case of some self-employed people, they cannot prove they are eligible.
Impact of criminal legal aid thresholds on unrepresented defendants
In 2015/2016 Transform Justice published a report on unrepresented defendants. There is a dearth of research on this subject but those interviewed felt that a substantial proportion of those who were unrepresented did not choose this option. They wanted to use a lawyer, but were not eligible for criminal legal aid and did not think they could afford to pay privately for a lawyer.
There appear to be an increasing number of unrepresented defendants in magistrates’ and crown courts (the proportion unrepresented at first hearing in Crown has increased from 5% to 8% since 2010). This may be linked to the freezing of the threshold for eligibility for legal aid and/or to people who are not eligible feeling more nervous about their ability to pay privately.
Our report (and one published by the government) suggested that unrepresented defendants fare worse than represented defendants in the courts. Our adversarial system is designed for lawyers – the processes, language and the law itself are very difficult for non-lawyers to understand. It is also not clear whether denying people legal aid is cost effective. Cases with unrepresented defendants appear to take longer and to lead to more punitive outcomes, which then have to be funded by the state.
The “innocence tax”
The structure of criminal legal aid can seem particularly unfair to some defendants in the Crown Court. Those who are not eligible for legal aid at all must represent themselves or pay privately for a lawyer. Lawyers who do private work generally charge far more than legal aid rates.
Defendants who are acquitted in the Crown Court, or whose cases are withdrawn, end up significantly out of pocket if they were forced to seek private representation. They can recoup the equivalent of what the legal aid fees would have been, but this is a small proportion of the total costs.
This is in contrast to private prosecution where the total cost of private fees is usually reimbursed if the perpetrator is convicted (and sometimes if not).
Impact of criminal legal aid fee arrangements on provision of defence services and their quality
The way of funding lawyers for criminal legal aid services has moved gradually from paying for time spent to paying set fees for certain cases/pieces of work. At the same time the amount of criminal work available has shrunk due to falling prosecutions, and renumeration has not increased in line with inflation. When the government moved to fixed fees, they tacitly argued that this would work on a swings and roundabouts basis – that firms and barristers would make a loss on some cases but make a profit on others. But this does not appear to be working since so few cases are truly profitable and may be leading unscrupulous lawyers to avoid unprofitable cases.
In our report on the quality of defence advice and advocacy we identified that the fee structure provides no financial incentive to improve quality or take on complex cases (and may be a disincentive).
Solicitors firms make some money on Crown Court trials therefore there is an incentive to focus on such cases. Our research revealed other examples of perverse financial incentives:
1. The fixed police station fee. Lawyers feel that the fixed fee (which ranges from £131.40 for each police station attendance in Hartlepool to £274.66 in Heathrow) is both too low and too fixed. The fixed fee creates a financial incentive for the most experienced lawyers to do the least complex police station cases because they tend to be quickest, for defence representatives to spend the minimum required time on any case, and for work to be delegated to representatives (not lawyers) who may lack the experience to deal with complex cases and who may work freelance for an unregulated company. In exceptional circumstances lawyers can apply for a top-up fee but many don’t bother, even if they are eligible, due to the bureaucracy involved.
2. Youth court trial fees. The youth court has the power to impose up to two years custody – much greater powers than the magistrates’ court. Defendants under 18 are all vulnerable, and are often extremely challenging to represent. But lawyers get paid no more to deal with a serious assault trial in the youth court than they do for a theft trial in the magistrates’ court. If a case is very complex, advocates can petition to get an enhanced fee, but this is not always granted, and the application process is lengthy. So there is a perverse incentive for under 18 year olds to be represented by less experienced advocates for very serious cases, when they need the most experienced lawyers.
3. Fees for appealing sentences and conviction. The fee for appealing a conviction or sentence given in the magistrates’ court is fixed and low – at £155 for an appeal against sentence and £349 for an appeal against conviction. Lawyers complain the fee does not cover the work involved in preparing for, and appearing at, an appeal hearing in the Crown Court. Even though all defendants should be informed of their right to appeal, and around half of the appeals to the Crown Court are successful, the number of appeals from the magistrates’ court has nosedived. The main cause of this fall is probably sentencing guidelines, but low lawyer fees may be another factor.
4. There are perverse financial incentives for a poor lawyer to try to influence whether, when and in which court a defendant pleads guilty or not guilty. If a defendant pleads not guilty to an offence which will be tried in the Crown Court, then changes their plea to guilty after the start of the trial, the solicitors’ firm will get a much higher fee than if the defendant pleaded guilty at an early stage. But the defendant will get an increased sentence because they did not plead not guilty earlier in the process. In the magistrates’ court, defence solicitors are likely to make more money from a simple guilty plea case than from a defendant who goes to trial.
5. Junior barristers also believe that quality is being compromised. Last year they wrote an open letter to their regulator that “the current structure of payment, whereby guilty plea fees and cracked trial fees do not reflect the work involved in preparing for guilty pleas and ineffective trials (especially in cases that run to several thousand pages and beyond), is creating a real risk to the quality of representation.”
It’s difficult to pin down how cuts in fees and the perverse consequences of the way fees are paid are impacting on the quality of defence and therefore access to justice, but there is evidence they are having a negative effect. And even where the fee is fair, there are other significant barriers to clients receiving the best possible defence.
Role of the Legal Aid Agency
We advocate for the Legal Aid Agency to take a much greater role in ensuring good quality of criminal legal aid advice and advocacy. Peer reviews are the LAA’s main means of ensuring legally aided solicitors are providing a good service. Each firm is visited by an experienced lawyer who goes through case files to identify good and less good practice and reports on their findings. However this only happens every five years, and case files give only a very limited picture of the quality. Besides this, the LAA relies on accreditation marks to ensure quality – any criminal legal aid contracted firm is required to have the Law Society’s Lexcel Practice Mark or the LAA’s own Specialist Quality Mark. Obtaining these accreditations is overly bureaucratic, especially for small firms, and is focussed more on the financial health and management of the firm rather than the quality of service for clients. Meanwhile some very poor quality firms persist. The LAA should lead the way in reforming the regulation and auditing of solicitors to ensure poor quality firms are not perpetuated and small firms are not overburdened.
Criminal legal aid and remote working
Before the Covid 19 lockdown few criminal lawyers appeared in court remotely. Prisoners appeared on video link from prison and from some police custody suites but lawyers generally went to court themselves. Only in areas with the Video-Enabled-Justice system (Kent, Norfolk, Suffolk) did lawyers appear from their offices or, occasionally, from police custody suites.
When Covid 19 prompted travel and movement restrictions, travel to court and police custody was still allowed, but many lawyers were reluctant to risk their health. Police custody was felt to be particularly unsafe due to lack of PPE and social distancing. Lawyers and police station representatives were given the option to give advice to suspects in police detention or to defendants in court using video links from home. This option was taken up with enthusiasm, particularly in the case of police custody work.
There is a significant financial incentive for lawyers to do their work remotely. They get paid the same fee whether they give advice/advocate remotely or not. The only difference is that the cost of travel to court can now be charged if an advocate attends in person. If a lawyer does a hearing/gives advice remotely they save time and money. So there is now a direct financial incentive not to attend police custody suites or courts in person. It is at the discretion of judges whether advocates should attend court in person and many are now requiring it, even for short hearings. But any lawyer/ representative can give advice remotely to a suspect in custody as long as they (or the appropriate adult in the case of a vulnerable suspect) consent. The emergency protocol which facilitates this is subject to Home Office consultation, but it currently remains in force. Appropriate adults, health staff and Independent Custody Visitors are now attending police custody in person.
It is understandable that lawyers should be concerned about the health risks of attending police custody. However we have concerns about the impact on suspects and defendants of lawyers giving remote advice and advocacy. There is now a substantial body of research (https://www.transformjustice.org.uk/links-for-seminar/; https://www.lawsociety.org.uk/contact-or-visit-us/press-office/press-releases/law-under-lockdown-covid-19-measures-access-to-justice-and-vulnerable-people) suggesting that defendants find it harder to participate effectively via video link. This is particularly the case for those with mental disabilities, for children and those with English as a second language. Research also suggests that video link is a barrier to the client-lawyer relationship. There is no specific research on the impact on suspects of getting advice in police custody remotely since this is a Covid 19 innovation. We also don’t know how remote advice may be impacting on the take up of legal advice. Though all suspects in police custody have access to free legally aided advice, approximately only half exercise this right. There are also some indications that remote hearings may lead to more punitive sentences.
We would suggest that remote lawyer work should be a temporary measure, pending independent research on the impact, and that some mechanism should be introduced to prevent the current financial disincentive to physical attendance at court or police custody. At the moment a lawyer who prefers to attend police custody in person loses out financially if they make that choice, or if the appropriate adult recommends that they attend.
Criminal defence is at a point of crisis and the structure and delivery of criminal legal aid is contributing to this. The way criminal lawyers and representatives are paid is a potential disincentive to delivering quality and spending the required time on complex cases and vulnerable clients. It is a tribute to the profession that most criminal lawyers try to do the best job possible, despite the financial disincentives. But all lawyers agree that firms like Keres & Co exist. Keres & Co is a fictionalised solicitors’ firm in “Stories of the law and how it is broken” by the Secret Barrister. It survives on criminal legal aid fees but gives a lousy service to its clients, doing the minimum possible for them.
The challenge for the government is to create a criminal legal aid system which financially incentivises high quality criminal defence and advocacy and enables as many suspects and defendants as possible to access lawyers. The Covid 19 epidemic and the health risks associated has introduced a new financial incentive – to work remotely. The introduction of such measures is understandable, but we are concerned that they should not become permanent unless and until we have better research and data on the impact of remote working on defendants’ and suspects’ effective participation, on the lawyer-client relationship and on justice outcomes.