Written Evidence from Dr James Thornton, Lecturer in Law, Nottingham Trent University

 

Introduction

[1] I am a legal academic. My research examines the work of lawyers, access to justice and legal aid in criminal matters. I recently carried out a research project examining the impact of cuts to criminal legal aid on the work of defence lawyers, based upon detailed anonymous interviews with 29 criminal defence litigators and advocates across the England and Wales jurisdiction.[1] Such work is not generalisable/representative of all criminal legal aid lawyers, but it is a useful illustration of some problems. I also teach Criminal Law to Law degree students and Graduate Diploma in Law students (those progressing to a legal career with degrees in other subjects) at my university. I am submitting evidence on the request of assistant counsel to the committee, as an academic expert on criminal legal aid. My submission addresses the future of criminal legal aid only. I have endeavoured to be concise, but can of course provide further details if that would assist. I consider recruitment issues first, then retention and working practices, before concluding on future challenges.

 

Recruitment

[2] Many of my students find criminal law to be an interesting and enjoyable subject to study. Many of them also display great aptitude for it in assessments. However, in most cases, this does not extend to a desire to practice in criminal legal aid. The vast majority pursue careers in civil law (as solicitors and barristers). In the past five years, I know of a few who work as paralegals in criminal legal aid firms and just one who is due to start pupillage in a barristers’ chambers focused on criminal law. I am not aware of a single former student who has taken a training contract in a criminal legal aid firm in the last five years, compared with many who have in firms working in other areas of law.

 

[3] It is worth noting from the outset that even before any issues of criminal legal aid fees are considered, the profession has many inherent characteristics that can be unappealing. Criminal legal aid lawyers must deal with e.g. sometimes very unpleasant (or even dangerous) people, people with serious mental health issues[2] and being called out to police stations at unsocial hours. The starting point is that the work can be challenging and at times unpleasant. Something has to make up for that in order to make it an attractive career.

 

[4] In terms of law firms, I am told that training contract opportunities are slim in criminal legal aid (although they do exist), but it also seems to be the case that the job simply does not appeal to many students. They often cite concerns about workload, work-life balance and pay (including in terms of financial return on the investment they make in their university legal education). Pupillage opportunities at the criminal Bar appear somewhat better, but, again, many students who would no doubt make excellent criminal legal aid barristers are simply not interested for the same reasons (and end up being excellent barristers elsewhere instead). That does not mean none are interested. Some remain very committed, but I do get a sense of lost opportunity.

 

[5] During the research study I carried out, I interviewed several partners in criminal legal aid firms and heads of chambers who echoed those sentiments. Quite apart from student interest (and they emphasised there were still some students who were keen), the problem for them was that both pupillage and, especially, training contracts are an investment, which is difficult to justify when margins are tight. As with many careers, a pupil or trainee is not immediately capable of bringing in the work to off-set their award/salary until they have built up some experience. In other areas of law, that is made up for by their future contributions, but, for the lawyers I spoke to, gloomy financial forecasts meant this investment might not pay off.

 

Retention and Working Practices

[6] Retention is perhaps worse than recruitment, but I also think this is to some extent bound up with working practices encouraged/necessitated by criminal legal aid fees.

 

[7] Very few of the criminal legal aid lawyers I interviewed in my study could see much of a future in criminal legal aid due to current payment rates, both in terms of direct cuts and the impact of inflation. From the most recently qualified to the senior, other options were being considered. Some solicitors were diversifying from or abandoning criminal legal aid. Some experienced barristers did likewise, or had developed their caseload to such an extent that what small amount of criminal law work they still did was done for personal interest, rather than any financial benefit. More junior ones were using the advocacy experience they had gained from criminal legal aid work as a springboard into other practice areas. I find reliance on the hobbyist who primarily practices in other areas as potentially problematic, as research suggests specialist lawyers generally provide better advice than generalists.[3]

 

[8] The Justice Committee’s 2018 report on criminal legal aid highlighted issues of low morale and I strongly concur with that. Many of the lawyers I interviewed who had withdrawn from criminal legal aid practice pointed to this as the reason. It is difficult to over-emphasise the impression given of how low morale is and its consequences for retention in the criminal legal aid sector.

 

[9] I think that what is perhaps not so obvious is that, whilst this problem of low morale is partly about the pay criminal legal aid lawyers receive directly (and feeling under-valued, not being able to afford things etc. as a result), criminal legal aid rates affect morale in an indirect manner too. After all, many jobs are poorly paid, yet do not have retention problems. An indirect consequence of low rates is that a high volume of work needs to be done to run a solvent business. Speaking anonymously, several interviewees in my study expressed great frustration with how this meant they needed to prepare and conduct each case: often in ways they considered inadequate, or even improper, and often contrasted with the (greater) attention that they could afford to spend on privately paid defence cases.

 

[10] Similarly, the Committee will no doubt be aware that (due to the nature of any payment scheme based upon fixed and graduated fees, as criminal legal aid is) there are financial rewards and punishments within the payment system in terms of the treatment and outcomes of certain types of cases vs others. The Committee has, in 2018, already considered (and Government has since taken steps to resolve) the issue of unused material. In my study, this was frequently given as an example of where the criminal legal aid lawyer’s financial interest was to spend as little time as possible on it, but this is by no means the only example. Several criminal legal aid firm partners I interviewed considered all police station advice work as a loss-leader and/or most if not all magistrates court work as cashflow rather than profit-making. One admitted to having only made a profit in a previous year because of two substantial Crown Court trials. A fee system that appears to encourage the view that large parts of a lawyer’s work is financially worthless and to focus on Crown Court work above everything else seems problematic for morale and retention, but also the administration of justice more generally. Crown Court work is statistically a very small proportion of criminal justice – around 95% of criminal cases finish in magistrates courts instead.[4]

 

[11] That said, whilst these sorts of anomalies ought to be minimised, any payment system is likely to have some. Removing one may inadvertently impose another elsewhere. What needs to be more broadly borne in mind is that the temptation to follow such financial rewards and avoid such financial punishments is greater when fees are lower and margins are consequently tighter.

 

[12] The result of the above is that, quite apart from low pay in itself, morale is further impacted by the way low fees incentivise or require work to be done: in ways legal aid lawyers consider inadequate. In addition (although likely beyond the scope of the Inquiry’s terms of reference in themselves), it is worth noting that such frustrations operate in combination with any broader systemic issues with the criminal justice system, such as the (now much aggravated by COVID-19) cases backlog in the criminal courts. A more specific example frequently flagged up to me by barristers is being paid late for work done (sometimes years later or never). These aggravate practitioner concerns about fee levels.

 

Challenges for legal aid over the next decade

[13] Hence, in my view, the primary challenge is sustainability. The problem is twofold. First, on the present course, it is difficult to see how the professions can continue to recruit and retain lawyers in criminal legal aid. Second, those that do continue in the sector find it increasingly challenging to carry out the role to the required standard, which is frustrating (and a retention risk) for them, but also problematic for the administration of justice.

 

[14] Low rates and underfunding play their part here. However, many of the problems relate not only to the direct effect of low payments, but also to the way those payments require lawyers to work. That means that an increase in rates would help, is indeed necessary (and so is an ongoing review mechanism to consider inflation), but that it need not compete with Corporate Law to achieve substantial improvements. It may not be realistic for the Ministry of Justice to fund criminal legal aid firms and barristers to compete with corporate law firm salaries or corporate client fees. However, it is realistic and necessary to aim to provide funding whereby each case or piece of work is of sufficient financial worth to allow for sufficient time to be spent on it. Whatever mechanisms are considered and ultimately designed, keeping that broad principle in mind is crucially important.


[1] Thornton, Is Publicly Funded Criminal Defence Sustainable? Legal Aid Cuts, Morale, Recruitment and Retention in the English Criminal Law Professions (2020) 40(2) Legal Studies 230
https://doi.org/10.1017/lst.2019.31

 

Thornton, The Way in Which Fee Reductions Influence Legal Aid Criminal Defence Lawyer Work: Insights from a Qualitative Study (2019) 46(4) Journal of Law and Society 559

https://doi.org/10.1111/jols.12179

 

[2] Durkan, Mental Health and Criminal Justice (Centre for Mental Health 2016)

[3] Moorhead, ‘Lawyer Specialization – Managing the Professional Paradox’ (2010) 32(2) Law & Policy 226.

https://doi.org/10.1111/j.1467-9930.2009.00315.x

[4] https://www.judiciary.uk/you-and-the-judiciary/going-to-court/magistrates-court/