Written evidence from Stephen Davies

About me

I am a Criminal Defence Solicitor at Tuckers Solicitors LLP, London. I am working class, and originally from South Shields, Tyne and Wear. I specialise in criminal law, procedure, legal aid, policy and access to justice.

I am a member of The Law Society of England and Wales, Junior Lawyer Division of the Law Society, Criminal Law Solicitors’ Association, London Criminal Courts Solicitors' Association, Solicitors' Association of Higher Court Advocates and Young Legal Aid Lawyers. My written evidence is a combination of my opinion, experience and research, however it does not necessarily reflect the views of my firm, a political party, or any other organisation. All errors are mine, and I am very much amenable to being corrected. At the very least, I hope my evidence is a positive contribution to what I believe is a fundamentally important issue in respect of access to justice, and a civilised democratic society.

I graduated with an LL.B Bachelor of Laws Degree in 2014, an LL.M Master of Laws Degree in Criminal Law and Procedure in 2015, and an LL.M Master of Laws Degree in Legal Practice (LPC) in 2017. As part of the latter, I submitted a thesis towards my degree whereby I analysed criminal legal aid and access to justice in England and Wales.[1] I received student finance for my LL.B, however I self-funded both of my masters. I estimate the cost of legal education to be somewhere in the region of £50,000+. What I would say is that I would not be where I am today without the continued financial support from my parents and sister.

Prior to moving to London, I previously worked for a number of high street law firms as a Paralegal in the North East of England. I gained experience in Claimant Personal Injury, Conveyancing, Family, Wills and Probate, Pensions, Family, and Criminal Defence. My salary ranged from minimum wage to £16,500. For four years I grafted relentlessly to gain the legal experience I needed to progress my career. It depresses me thinking back to redundancies, and all of the knock-backs and difficulties that come with working in high street firms, particularly those with legal aid contracts. The high street has been decimated.

I moved to London in April 2018 to start my training contract with Tuckers Solicitors LLP, who are one of the largest criminal defence firms in England, and one of the few firms able to offer training contracts. I qualified as a Solicitor in June 2020 and will, I hope, be on the duty rota in due course. I was supported financially by my parents throughout my training contract, i.e. they supplemented my income which essentially paid for travel.

I would suggest it takes the best part of ten years to qualify. This is important to emphasis it for two reasons. Firstly, you simply cannot ascertain a ready-made criminal defence lawyer from the shelf. I accept lawyers can re-train, and indeed many do, but it takes a significant period of time to qualify nevertheless. Second, the average age of a Duty Solicitor is now 47 years old, and in many parts of the country it is significantly higher. My colleagues may well be glad I am bringing the average age down, but you need only attend a Magistrates’ Court in any part of England and Wales, and you will struggle to find solicitors in their 20s and 30s. I am fortunate in that still to this day I am learning from those who are far wiser and experienced than I am, but I query whether that will still occur as defence lawyers retire, or simply quit?

The Coal Face

I represent clients who have criminal cases in the police station, Magistrates’ Court, Youth Court, Crown Court and Appeal Courts. I have represented suspects and defendants accused of assault and murder, and pretty much everything in between. I find myself in police stations, courts, and prisons in and outside of London.

My job is to advise clients on the criminal law, procedure, evidence, criminal legal aid, disclosure of evidence, allocation and plea before venue, bail, appeals, sentencing, and so much more.

Criminal Legal Aid Firms and Solicitors

Paralegals, Trainee Solicitors, and Newly Qualified Solicitors

In 2017, the SRA reported that only 309 (2.9%) of 10,726 Trainee Solicitors were working in criminal law[2]. Of that 309, I assume that a fair percentage can be allocated to Trainees at the Crown Prosecution Service, and criminal firms without a criminal legal aid contract.

I suspect it is difficult to obtain the numbers in respect of paralegals working in criminal defence firms. However, I can say with certainty that paralegal and training contract opportunities are like gold dust. They are few and far between. Whenever a firm advertises, I imagine in the larger cities there is a great deal of applicants. In more rural parts of the jurisdiction, I imagine they struggle to attract applicants, assuming they are recruiting in the first place. 

Paralegals in criminal legal aid can expect to earn minimum wage, though with some experience I suspect that may increase to around the £15,000 – £18,000 range. As for Trainees, The Law Society recommends, as a matter of good practice, that providers of training contracts should pay their trainees £22,541 in London and £19,992 outside London. 

It doesn’t surprise me the recommended minimum is so low, as to increase it much more would essentially prevent firms from recruiting.

A newly qualified solicitor in a criminal legal aid firm is likely to earn £24,000 - £26,000.

Police Station Representative Accreditation Scheme (PSRAS)

The PSRAS is arguably an essential requirement to work in criminal defence. Becoming a fee earner enables anyone who is able to advocate on behalf of suspects to earn the fixed fee for the firm, and indeed earn a living themselves. In my view, the course is inaccessible from a geographical perspective; to my knowledge, only Cardiff University and Data Law are training providers. The course itself consists of a written exam, a portfolio split in two sections, as well as the Critical Incidences Test. An exemption applies to the written exam for LPC/BPTC graduates.

Part of the issue, particularly if you are based outside of London, is supervision. For Part A of the portfolio, the candidate must observer a Duty Solicitor for two cases, followed by the Duty Solicitor observing them for two cases. The deadline, as I understand it, is very tight. The candidate has three months to complete Part A from the moment they do their first case. Unless the candidate is being supervised within a firm that has a healthy ‘own client’ base, it can be very difficult to complete within the timeframe, and that is without the extra difficulty of matching diaries.

In terms of cost, for all three aspects of the course, including training, it is likely to set a candidate back £1145.00, and that is without travel and prospectively accommodation on top of that. I think the course is financially inaccessible for many, and whilst some firms are happy to pay to put their staff through the course, it is not always the case, particularly if you are not already employed, for example, as a Paralegal or a Trainee Solicitor.

Magistrates Court Qualification (MCQ)


For completeness, the MCQ is an additional course which a solicitor must complete. Adding together the PSRAS and the MCQ enables a solicitor to be added to the duty rota. The MCQ consists of a 25 case portfolio, and an advocacy assessment. Financially, this is likely to set a solicitor or the law firm back £1125.00 for the assessment of the portfolio, advocacy training and the advocacy assessment. There is a financial incentive for the firm to pay as it ultimately results in an additional duty slot on the rota, which will in turn generate duty client work. For the individual on the rota, the prospect of generating client work from the rota enables greater leverage insofar as salary is concerned.

 

Duty Solicitors

 

Duty solicitors have reduced by 29% when comparing the 2016 duty rota to the April 2020 duty rota. To add to the rather bleak picture, The Law Society undertook research into this area in 2018 and found that the average age of a Duty Solicitor is 47 years old, and in many areas of England and Wales, it is significantly higher. The data highlights that in 5 to 10 years’ time there could be insufficient criminal duty solicitors in many regions, leaving individuals in need of legal advice unable to access justice.

This could have a catastrophic effect on the criminal justice system, as members of the profession retire and leave a shortage of experienced practitioners, impacting on access to justice.

Currently, some areas are particularly affected:

One explanation for these shortages is that prior to the accelerated CLAR items, publicly funded defence solicitors received no fee increase since 1998. Combined with other cuts to the system, and the levels of debt incurred by students looking to pursue a law degree and training contract, many lawyers no longer see a viable career doing this work; it is difficult to attract and retain new members of the profession.

I estimate Duty Solicitors earn £25.000 - £35,000. By way of comparison, a Senior Crown Prosecutor at the CPS attracts a salary of around £50,000.

Criminal Legal Aid Firms

 

In 2010, there was 1,881 firms with a criminal legal aid contract. In February 2019, this figure significantly reduced to 1,271. As of 12 October 2020, there are currently 1,136 firms who hold a criminal legal aid contract. This means over the last decade there has been an almost 40% reduction publicly funded criminal defence firms.

 

I do not believe this profession is close to the bottom, but it does concern me that prior to COVID-19, the market shrank by 10%. I am particularly interested to see how this develops once the Government’s Furlough Scheme ends. It’s hardly surprising either; Otterburn concluded in 2014 that the overall profitability of criminal departments was 6%.[3]

 

Recruitment, Succession, Retention, Diversity and Sustainability Crisis

 

Overall, criminal legal aid solicitors has a high average age (particularly in London), the number of firms and duty solicitors has reduced, all of which is compounded further by aspiring criminal lawyers finding it virtually impossible to penetrate the market. Research suggests the sector is barely profitable.

 

Consequently, it wouldn’t be unreasonable to state that the criminal legal aid market struggles to recruit, attract and retain the next generation of lawyers. My profession needs a rich tapestry of lawyers, but it can only achieve that by being profitable and sustainable.

 

Delay: Released Under Investigation (RUI)

 

Released Under Investigation (RUI) was introduced by s.54 of the Policing and Crime Act 2017; the Act gained Royal Assent on 31 January 2017, with RUI coming into force in April 2017. RUI is an additional ‘outcome’ mechanism available to the police following an interview under caution (whether voluntary or not). This is in addition to the other main outcomes: No Further Action (NFA), bail (with or without conditions) and charge. In effect it puts the investigation into limbo, with no time limits or oversight.

 

Importantly, RUI was not debated at any stage during the Policing and Crime Bill. It is thus unclear whether or not RUI was actually intended by Parliament or whether it is a significant unintended consequence of the Act’s drafting. Although the 2017 Act provides statutory time limits and judicial oversight of extensions regarding bail, RUI attracts no such time limit, oversight or appeal procedure. This leaves it open to abuse.

 

RUI Statistics

 

Since the introduction of RUI, the use of bail has dramatically decreased across England and Wales; from 216,178 cases in 2016-17, to 43,923 in 2017-18. In 2017-18, 193,073[4] were RUI, including more than 93,000 suspected of violence and sexual offences. [5]

 

RUI and the Impact on Legal Aid Solicitors

 

New entrants into the legal aid market are reliant on a diet of ‘duty rota’ clients, and ‘own clients’. Given the significant delay between arrest and charge, it is extremely difficult to build an ‘own client’ network to supplement the duty rota. I have many examples whereby suspects have waited 1 – 2 years to find out they have been charged with serious offences. By the time those cases conclude after trial, there is a very real prospect of it taking 4 years, and possibly longer. There are so many negatives I could go into when discussing this concept, and my main thought is undoubtbly with defendants and victims who continue to face delay. However, from a legal aid perspective this is nothing other than a cash flow nightmare. The solution to this issue may well come about as a result of the Home Office’s review of pre-charge bail and RUI, however financially the solution may well be CLAR’s payment for pre-charge engagement.

 

RUI and the Impact on the Provision of Criminal Legal Aid

 

Engaging with the police pre-charge to assist and encourage them in gathering this evidence is an important function of a defence lawyer, however it is currently not remunerated. Instead, fees are paid for police station advice and assistance and then later, for trial. With long delays under RUI, the defence is put in the invidious position of having to conduct this work speculatively (i.e. without knowing if there will be a charge and subsequent fee) in order to avoid the above prejudice to their clients.

 

In addition, by building up a large bank of unresolved and unbilled casework, RUI is causing a significant cash flow crisis for defence firms already under severe financial pressure.  This is in effect a hidden tax on defence lawyers, further compounding decades of legal aid cuts and increasing risks to the sustainability of legal aid provision in England and Wales.

 

 

 

 

 

Digitisation

 

Shortly after the House of Commons Committee of Public Accounts concluded that “the criminal justice system is close to breaking point,”[6] a policy paper entitled ‘Transforming our justice system’ was jointly announced by The Lord Chancellor, Lord Chief Justice, and the Senior President of Tribunals in relation to the future of HMCTS.[7]

 

Over £1 billion was invested into HMCTS’s Court Reform Project by Her Majesty’s Treasury. One third of that was to be raised by HMCTS which saw much of the court estate being sold.

 

An independent review of the reform programme concluded the reform would significantly alter the way in which users’ access justice.[8]

 

Over the last decade, the criminal justice system has become more and more digitised. The Crown Court for example operates via the Crown Court Digital Case System (CCDCS), and we continue as a profession to welcome positive changes such as unused material being uploaded to the CCDCS, which was never the default position previously.

 

That said, criminal legal aid is crying out for a Common Platform for matters in the police station and Magistrates’ Court. There is a great cost saving opportunity to enable a more efficient process regarding the ‘interception’ and ‘conveyance’ of data, or in other words, disclosure and briefs. My provisional view is that a system similar to the CCDCS could allow for the police to create a case, with a live custody record operational from the moment it is created. So long as the defence and prosecution can data mine the information, law firms and the prosecution will in turn be able to create their own cases. The system is littered with inefficiencies at a very basic level; the same information is inserted into separate systems, multiple times over.

 

Until then, the profession continues to drown in the digital crater that is disclosure. Purpose built case management systems will allow criminal firms to run businesses in line with the other main portals within the criminal justice system. However, given the extremely low profit margins, it remains to be seen whether the market can even afford to invest in the technology that is needed.

 

Criminal Legal Aid: The Rate of Remuneration

Prior to CLAR, the last major review of fees came about as a result of Lord Carter’s proposals in 2006 which provided the framework for the current criminal legal aid schemes.

 

Lord Carter decided to recommend a different approach in his report on the procurement of criminal defence legal aid services.[9] He had in mind payment of claims on a case-by-case basis, largely based on ‘proxies’ to deal with the complexity on cases of that kind, rather than the work needed or actually completed on each case.

 

Following on from Lord Carter’s review, a statutory instrument, the Criminal Defence Service (Funding) (Amendment) Order 2007 was laid before Parliament to give effect to the decision to introduce the LGFS. The LGFS scheme came into effect on 14 January 2008.

 

The LGFS scheme graduates the fee for litigators in relation to Crown Court matters. It does so by incorporating a number of proxies, namely the type of matter (trial, guilty plea, re-trial etc.) offence type, trial length in days, the number of defendants represented and Pages of Prosecution Evidence (PPE).


Soon after, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) was laid before Parliament in response to an alleged pressure on the legal aid budget; this formed part of a wider policy response to reduce the national deficit.

 

Reports by Oxford Economics[10] and Otterburn[11] were prepared on behalf of The Law Society, with the Ministry of Justice instructing KPMG[12] in relation to procurement and modelling. Nevertheless, despite the profession’s objections, the Criminal Legal Aid (Remuneration) (Amendment) Regulations 2014 were made and introduced under Part 1 of LASPO 2012. The purpose of which was to cut litigators fees by 8.75% in cases in the Crown Court (other than Very High Cost Cases), in the Court of Appeal, and in other cases covered by the Standard Crime Contract, such as Magistrates’ Court cases, police station attendances and Parole Board cases.

 

The current situation in relation to the fixed fees is bleak. In my mind, I think of the 2014 Regulations in two parts: police stations and Magistrates’ Court.


Police Station Fixed Fees

 

In terms of the police station, the fee ranges from £126.58 in Blackpool to £274.66 to deal with a matter at Heathrow airport. I think a fair assessment of the overall fee scheme would be to suggest the average is approximately £150-170 across England and Wales, whereas London, as you might expect, is approximately £200-230. The highest fee, Heathrow, is in some respect an oddity; central London for example attracts a fee of £237.25.

 

On first blush, particularly from the perspective of a lay person, the fixed fee may not raise any concerns. However, it is important to remember these fixed fees are payable to the firm and not the individual attending. An individual across England and Wales may earn somewhere in the region of £50.00-70.00 per attendance, with a slightly higher fee in London of about £80.00-100.00.

 

The fixed fee, whether it be from a firm or individual perspective, is the same irrespective of the time spent in custody. I accept the 2014 Regulations attract escape fees, but I suspect they are rarely claimed on the basis the matter falls just short of claiming and/or the administrative burden of claiming the higher fee.

 

The bread and butter of criminal defence at the coal face is advocating on behalf of suspects in the police station. A criminal trial can be won and lost based on the advice in the police station. The task is intellectually demanding and draining; a legal representative must be alert to from beginning to end. I accept there are jobs which are relatively straight forward; for example a shoplifting whereby the suspect is accused of taking any given item from a supermarket and is caught on CCTV, compounded by an admission of guilt. Yes, those cases exist, but they do not make up for demand deriving from the overall basket of cases. However, it is beyond my comprehension as to the rationale for paying me the same fixed fee to provide advice and assistance in relation to a suspect accused of murder or rape.

 

To make matters worse, the fixed fee is the same whether it is 10.00am on a Wednesday morning, or 3.00am on a Saturday morning. Remuneration for unsociable hours is simply not built into the fixed fees at all.

 

Magistrates’ Court Fixed Fees

 

Similarly, the 2014 Regulations outline the lower and higher standard fees in relation to Magistrates’ Court matters. The fees payable in this respect are somewhat complicated, though there is nothing in wrong in principle with the mechanism. The fixed fee is essentially made up by ‘building’ the fixed fee via hourly rates, for example, in relation to preparation (£45.35) and advocacy (£56.89). The hourly rate, however, is misleading. Take for example a Category 1B case. The lower standard fee is £202.20 and the higher standard fee is £435.64. In order to claim the higher standard fee, the file must be ‘built’ by using the hourly rates, and achieve a total fee of £471.85 or more, in order for the file to bill for £435.64. If it fails to do so, or falls just short, both of which are plausible if the matter did not require the required time, the case will bill for the lower standard fee.

 

Cases can be billed as a non-standard fee, however my view is that such cases are rare. I suspect however that because of the adjournment culture we have endured during COVID-19, there may well be more non-standard fees going through the billing procedure.

 

Again, it’s worth emphasising the fixed fees are payable to the firm, and billing figures are part of that which contributes to an individual employees billing figures. However, for context, if a solicitor was self-employed as a consultant, or a junior barrister were to contemplate what sort of fee they might attract for conducting a trial, the protocol for London[13] is perhaps a good starting point. The highlights are £50.00 for a First Appearance, £75.00 for a half day trial, and £150.00 for a full day trial.

 

Notwithstanding the difference between the fixed fee and the hourly rates, and ultimately how the case is billed, I do think it’s worth highlighting just how drastic the percentage loss when comparing the 1996 and 2020 rates. In many examples, the rate would be doubled if it were adjusted for inflation.[14] Inflation in the criminal legal aid context by no means a silent killer, that has crept up on defence firms across two decades. It is an overwhelmingly obvious cut and cannot be ignored.

 

In my view, the fees payable are extremely low and unsustainable, regardless of whether you consider them from the perspective of a solicitors firm, or the self-employed bar. The 2014 8.75% cut savaged the market. If the Government aim to fairly reflect, and pay for, the work done, then I am minded to suggest the 8.75% is immediately re-instated, followed by further analysis as to the figures for police station fees, and the lower and higher standard fee boxes for Magistrates’ Court cases.

 

Graduated Fees: LGFS and AGFS

 

The LGFS in many respects subsidises the poorly paid work that I have highlight above. However, the notion that is ‘swings and roundabouts’ is no longer fit for purpose given the basket of cases has significantly reduced, compounded by each and every case being bubble-wrapped by digital disclosure and digital evidence. Defence lawyers today do not have briefs capable of being folded in half, and carried around in one hand.[15] Instead, they consists of hundreds, and often thousands of pages of evidence.


I don’t think there is anything particularly wrong with the LGFS in terms of its infrastructure, but once again what is unsustainable are the fees that are generated. It is all good and well focusing on the large LGFS fees such as a 12 week murder trial, consisting of 10,000 pages of prosecution evidence, but what about the fee in respect of a burglary trial? I don’t know whether the murder fee represents the ‘swing’ or the ‘roundabout’, but given they are few and far between, and for many firms represent a large proportion of the firms income, I am not convinced that the LGFS is a viable fee scheme when it fails to attract sustainable fees in respect of volume Crown Court work.


The same can be said in respect of the AGFS. The AGFS was introduced by the Legal Aid in Criminal and Care Proceedings (Costs) (amendment) (No.2) Regulations 1996. The original scheme was designed to graduate payment of advocates conducting standard cases in the Crown Court. However, most cases were instead remunerated on an ex post facto basis, i.e. payment is made after the work has been done.

 

Today the latest scheme – known as AGFS Scheme 11 – remunerates advocates by graduating the fee based on the offence type and trial length. There is no longer a Pages of Prosecution Evidence (PPE) proxy. The fee comes in two parts; the initial brief fee, and the daily refresher. Again, the fees largely do not fairly reflect, nor do they pay for the work done.

 

There may well be a good argument to reconsider the both the LGFS and AGFS in terms of the infrastructures, however it seems to me this is likely to take some time. On a more practical level, many of the issues can be resolved by considering the fees in the box.


That said, I remain concerned that the Government will continue to attack the graduated fee schemes, particularly the LGFS.

 

In addition to the reports on the Disclosure of Evidence in Criminal Cases,[16] followed by a detailed report on Criminal Legal Aid[17] by the Justice Committee, the summer of 2018 was significant for criminal legal aid. The High Court published its judgment in relation to The Law Society’s judicial review of The Lord Chancellor regarding the LGFS and PPE:

 

“This is another claim for judicial review of a decision by the Lord Chancellor to reduce the amount of money made available as legal aid for defending people accused of crimes. The decision challenged in these proceedings has reduced fees payable under a scheme called the Litigators’ Graduated Fees Scheme under which most of the work done by “litigators” (typically solicitors) in preparing the defence of persons prosecuted in the Crown Court is paid.”[18]

 

Whilst The Law Society was successful in its judicial review, the win for me was nothing other than a reversal of an unsustainable status quo. Amongst the many issues that this case highlighted, for me the main issue is that legal aid is under constant attack. It is difficult for firms to plan for the future, and have viable business models given the history of criminal legal aid, particularly over the last two decades, is utterly plagued with legislative change and savage cuts.

 

It is likely that both the LGFS and AGFS will feature as part of the Government’s ongoing Criminal Legal Aid Review. This is a complex area of criminal legal aid, and whilst I think there’s urgent issues today, I also think the graduated fee schemes will take time to resolve in line with the explosion of digital evidence. My provisional view at this stage is that the Government set a realistic timetable in respect of CLAR.

 

Criminal Legal Aid Review (CLAR)

I am currently representing the Junior Lawyer Division (JLD) of The Law Society of England and Wales in relation to CLAR and I have been involved in CLAR from the outset. The Justice Committee will no doubt be well aware of CLAR, however I hope to assist by outlining what I believe to be the main issues and how they can be remedied. I published part of the following information via a Special Bulletin[19] on behalf of the APPG on Legal Aid and via a blog[20] in my own name. That said, the timeline is important to highlight as it gives context to the issues the profession is faced with today.

CLAR Background

CLAR[21] was first announced on 10 December 2018 by the Ministry of Justice (MOJ) when it provided its response to Amending the Advocates’ Graduated Fee Scheme (AGFS).[22] Later in February 2019, the MOJ published its post-implementation review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO)[23] a Review of Legal Aid for Inquests[24] and Legal Support: The Way Ahead - An Action Plan to Deliver Better Support to People Experiencing Legal Problems.[25]

The purpose of CLAR is a review of the entire ‘criminal legal aid cycle’, from fixed fees in the police station and Magistrates’ Court, to graduated fees in the Crown Court (AGFS and the Litigators Graduated Fee Scheme (LGFS). The review also includes a review of Very High Cost Cases (VHCC).

CLAR has two main outcomes:

(1)   To reform the criminal legal aid fee schemes so that they: fairly reflect, and pay for, work done; support the sustainability of the market, including recruitment, retention, and career progression within the professions and a diverse workforce; support just, efficient, and effective case progression, limit perverse incentives, and ensure value for money for the taxpayer; are consistent with and, where appropriate enable, wider reforms; are simple and place proportionate administrative burdens on providers, the Legal Aid Agency (LAA), and other government departments and agencies; and ensure cases are dealt with by practitioners with the right skills and experience.


(2) To reform the wider criminal legal aid market to ensure that the provider market: responds flexibly to changes in the wider system, pursues working practices and structures that drive efficient and effective case progression, and delivers value for money for the taxpayer; operates to ensure that legal aid services are delivered by practitioners with the right skills and experience; and operates to ensure the right level of legal aid provision and to encourage a diverse workforce

CLAR was first published on 14 March 2019, inclusive of the formation of the Defence Practitioner Advisory Panel with the CLAR Programme Overview being published on 30 April 2019.[26]

In the early summer of 2019, the Criminal Bar Association (CBA) of England and Wales balloted its membership once again with regards to AGFS Scheme 11 and prosecution fees. Its members voted overwhelmingly in favour of industrial action; 2586 (94.90%) voted for action in respect of prosecution fees, and 2567 (93.86%) voted for action in respect of AGFS Scheme 11.[27]

The threat of action resulted in a proposal by Her Majesty’s Government. On 12 June 2019, the CBA advised its members of the joint package offer which included an increase in prosecution fees, and a promise to accelerate certain aspects of CLAR.[28]

The CBA recommended its membership accepted the Government’s offer before going back to its membership for the final say. Meanwhile, the proposal between the Crown Prosecution Service, MOJ, Attorney General, CBA and the Bar Council was factored into CLAR.

On 28 June 2019, a total of 2607 voted, and 1583 (60.72%) voted to suspend action,[29] with the Plan for Accelerated Work being published on 23 July 2019. The accelerated work includes:

(1)   unused material;

(2)   cracked trials in the Crown Court;

(3)   how advocates are paid for paper heavy cases;

(4)   early engagement by defence practitioners (i.e. pre-charge advice); and

(5)   payment for sending cases to the Crown Court.


CLAR continued throughout the summer of 2019, with a methodology section being added on 23 August 2019, and the CLAR plan being updated on 19 September 2019.

From the outset, the Defence Advisory Panel have been informed that CLAR would report by the summer of 2020. Further still, the panel were informed that announcement of the Plan for Accelerated Work would report by November 2019, with the main review continuing in the background as planned.

In October 2019, the Government announced a General Election, with the dissolution of Parliament taking place on 06 November 2019. The Election subsequently took place on 12 December 2019, with the State Opening of Parliament taking place on 19 December 2019.

The rules surrounding purdah meant that no Government policy proposal would take place, meaning the Plan for Accelerated Work would inevitably be delayed.

In February 2020, one half of the joint package offer, i.e. an increase in prosecution fees, came to fruition; Scheme E came into force, whilst the five accelerated CLAR items remained outstanding.

On 26 February 2020, the Attorney General’s Office published the AG’s Guidelines on disclosure[30] and the consultation on a revision to the Guidelines.[31] The announcement from the AG is important for two reasons: firstly, criminal legal aid and disclosure are intertwined concepts and secondly, CLAR is reliant on the AG having regards to pre-charge engagement.

CLAR: Accelerated Items

On 28 February 2020, the MOJ published an accelerated package of measures that would amend the criminal legal aid fee schemes, four months later than the MOJ originally promised. The MOJ has published four out of the five accelerated items. The 4 week consultation closed on 17 June 2020, several months later than planned due to COVID-19.

The key publications included the consultation and impact assessments.[32]

CLAR: Accelerated Items – Government Response

The Government responded[33] to the consultation in relation to the accelerated items on 21 August 2020, together with an Equality Statement[34] and an Impact Assessment.[35] The Government state the proposals represent an additional £35 million to £51 million for criminal legal aid per annum.[36]

CLAR 2 and the Way Ahead

The main CLAR review has been delayed. The expected completion date for the main report was expected by the summer of 2020. Now it is expected the main report will report at some point in 2021. Elsewhere, the LAA has confirmed it is extending the 2017 Standard Crime Contract by 12 months to 31 March 2022.[37]

As for CLAR 2, the MOJ has announced it is making part of the review independent – much of the detail is yet to be announced:

“Having carefully considered consultees’ views, we believe that while the views expressed highlight legitimate concerns about the fee schemes, many were outside the remit of this accelerated consultation and the intention had always been to consider these issues as part of the wider holistic Review – as described above it is our intention to change our overall approach to delivery and progress an independent review and a review of the current criminal legal aid fees and contractual arrangements in the context of the wider criminal justice system. The concerns raised about fees that related to the fundamental sustainability of the system will be considered as part of the next phase of the Review…”[38]

The independent review will consist of a Chair and a Challenge Panel. Sustainability will be at the heart of the independent review, consisting of key themes which will look at efficiency; transparency; competition; diversity; and resilience.

I have many criticisms of the CLAR, particularly that of the accelerated items. The main issue with CLAR is that the Government are yet to commit to a timetable and publish it in the public domain. Without it, the profession is unable to hold the Government to account.

Criminal Legal Aid and COVID-19

The criminal justice system almost came to a complete halt in March 2020. Interviews under caution quickly became virtual in all but the most serious offences, and that which involves youths. This remains the default position in line with the protocol signed by The Law Society, CPS, NPCC, LCCSA and CLSA. The Magistrates’ Court initially only dealt with those that were remanded and little else. That said, the work has continued to increase. As for the Crown Court, the issue remains insofar as trials completing, impacting on LFGS and AGFS billing. Elsewhere, the prison estate went into its own lockdown, bringing an end to face-to-face legal visits for the vast majority of the prison estate. The introduction of Cloud Video Platform (CVP) was welcomed, though demand inevitably outweighed availability.

COVID-19 has brought about significant change, including a drastic rise in the backlog in the criminal courts, and the extension of Custody Time Limits (CLTs).

As for criminal legal aid, on 04 May 2020, the Justice Committee held an oral evidence session on the Impact on Prison, Probation and Court Systems. In the third session, Andy Slaughter MP asked the Legal Aid Minister, Alex Chalk MP whether “there [is] any means of supporting…firms?”[39]

Mr. Chalk MP responded:

“…it is really important that in those conversations we do not lose sight of what is already in place in terms of the levers to pull on. One of the nice things to emerge from the evidence was the point about how the LAA are working really hard. Yes, but what that translates to in real terms is that they have quadrupled the number of staff to handle fee claims, which is important for two reasons. First, if you have not billed your case, please get on and bill it, because there is something like over £100 million of work that has been completed but not billed, and there are now four times as many staff to get through it. That is the first point.”

“The second point is the SI, which I signed, that means there is a hardship payment you can claim. If you have only billed £450—it used to be £5,000 and you had the case for six months—it means that in pounds, shillings and pence you can draw down £140 million. That could be a huge slug coming in. I mention that because only 16 applications have gone in under AGFS and six on LGFS. That is not intended to be a criticism at all. All I am saying is that there is a very powerful lever to pull on. To put those two in context, if you add those two figures together—£100 million and £140 million—that is £240 million. The annual total spend on legal aid is about £1.8 billion, so you can immediately see that there is a significant amount of money to be drawn in.”

Almost six months later, Mr. Chalk advised that:

“In response to the destruction caused by covid-19, we have introduced measures that include scheduling more than 100 additional Saturday court sittings each month; providing funding to not-for-profit providers of specialist legal advice, such as law centres; and rolling out the cloud video platform to enable remote hearings in all civil, family and criminal courts.”[40]

It follows that, according to the Justice Minister himself, the Government’s response to COVID-19 insofar as criminal legal aid is concerned is to make use of:

(1)   Unbilled work

(2)   Interim payments

(3)   Hardship payments

(4)   Saturday Courts

(5)   NfP funding

(6)   CVP

I query what financial support, exactly, the Ministry has provided? The answer seems to be no financial support whatsoever; not even a shilling or a pence. Criminal legal aid currently “costs a fraction of a fraction”[41], yet it’s now a “crisis within a crisis[42]

The Future and the Way Ahead

I do not know how much money legal aid requires to make it sustainable. It would be easy for me to recommend that more money is injected into the criminal legal aid schemes, but I simply do not know how much, and where, exactly, the focus should be. What I would say is that legal aid rates have been subject to the political football arena for decades.

Unfortunately, the professions have been divided and conquered over the decades. The critical mass that are solicitors have been pigeonholed via the Standard Crime Contract, whereas the Criminal Bar retains power that any Government fears – no returns. Even with a critical mass with power, business models, size, and geographical locations limit the profession’s ability to look after its own interests. Of course, given all that I have mentioned, it wouldn’t surprise me if the profession voted with its feet, and exercised its industrial strength in future.

Given the risks associated with any given Government unwilling to invest in publicly funded law, compounded by the profession being hamstrung by itself, my view is that an Independent Pay Review Board would be the first step in making this profession sustainable. Indeed I hope CLAR and the APPG on Legal Aid enquiry recommends much of the same.

Whilst my evidence is from the perspective of a solicitor, I strongly believe an independent pay review board will benefit both solicitors and barristers. After all, even if the profession is racing to the bottom, I suspect a pay review board can only make it better.

Recommendations

  1. Up to date information in relation to recruitment and retention. The data is likely to exist via The Law Society, Solicitors Regulation Authority and the Ministry of Justice/Legal Aid Agency. Specifically I recommend ascertaining data in respect of how many trainees opt to do criminal law as part of their training contract, and how many qualify into criminal law upon admission to the roll. Thereafter, data should be sought in respect of Duty Solicitors. An up to date ‘heat map’ from the Law Society would assist in highlighting the average age, in addition to highlighting how many trainees eventually become Duty Solicitors. Only then will the LAA be able to truly monitor the situation.

 

  1. Re-instating the 8.75% cut.

 

  1. The creation of an Independent Pay Review Board in respect of the rate of legal aid remuneration, indexing the rates with inflation.

 

  1. Government funded training contracts and pupillage awards for publicly funded areas of law. However, I would not welcome this unless there was an independent pay review board. I cannot in good conscience recommend this as a viable career option to aspiring lawyers, therefore the creation of job opportunity must, in my view, coincide with a sustainable model whether it be for criminal legal aid solicitors or barristers.

 

  1. A timetable for the Criminal Legal Aid Review (CLAR)


I trust my written evidence is helpful in terms of assisting the Justice Committee with its important work in relation to legal aid and access to justice.

My hope is that legal aid is removed from the political arena so that the rate of remuneration can be considered and implemented via an independent pay review board. I’m afraid unless the issues are given the urgency they deserve, lawyers like me will be forced out of working in a system that very much needs my colleagues and I.

November 2020

 

 

 


[1] Stephen Davies, An Assault on our Access to Justice: Advocating on Behalf of Suspects in a Cost Restrictive and Time Delayed Criminal Justice System (September 2017)

[2] Solicitors Regulation Authority, Impact assessment of the deregulation of the prescribed SRA trainee minimum salary Post implementation two-year review (November 2017) at 18

[3] Otterburn Legal Consulting, Transforming Legal Aid: Next Steps - A Report for The Law Society of England and Wales and the Ministry of Justice (February 2014) at 21

[4] The Law Society, Victims and Suspects Left in Limbo after Changes to Police Bail – New Research (09 October 2019); Monidipa Fouzder, Police Figures Confirm 193,000 Suspects Were 'Released Under Investigation' (The Law Society Gazette, 10 October 2019)

[5] Patrick Cowling, James Clayton, Melanie Newman, ‘Scandal Brewing’ As Thousands of Suspects Released (BBC Newsnight, 04 December 2019)

[6] House of Commons Committee of Public Accounts, Efficiency in the Criminal Justice System (HC 72, 27 May 2016)

[7] Lord Chancellor, the Lord Chief Justice and the Senior President of Tribunals, Transforming our Justice System (September 2016)

[8] The Boston Consulting Group, Her Majesty’s Court and Tribunal Service Reform Programme - Independent Review (05 February 2016) 23

[9] Lord Carter, Legal Aid: A Market-Based Approach to Reform (13 July 2006)

[10] Oxford Economics, Forecasting Criminal Legal Aid Expenditure - A Report for The Law Society, The Legal Aid Practitioners Group, The London Criminal Courts Solicitors Association, The Criminal Law Solicitors Association and The Big Firms Group (January 2014)

[11] Otterburn Legal Consulting, Transforming Legal Aid: Next Steps - A Report for The Law Society of England and Wales and the Ministry of Justice (February 2014)

[12] KPMG, Procurement of Criminal Legal Aid Services: Financial Modelling (11 March 2014)

[13] 2019 Revised Protocol for the Instruction and Payment of Counsel in Magistrates’ Courts Cases within the Greater London Area.

[14] Karl Turner MP, Coronavirus and the Criminal Justice System – Saving Access to Justice (03 July 2020), Annex B

[15] Sir Brian Leveson, Criminal Justice: The Past and The Future (The Slynn Memorial Lecture, 12 June 2019)

[16] House of Commons Justice Committee, Disclosure of Evidence in Criminal Cases (HC 859, 20 July 2018)

[17] House of Commons Justice Committee, Criminal Legal Aid (HC 1069, 26 July 2018)

[18] The Queen on the Application of The Law Society v The Lord Chancellor and Secretary of State for Justice [2018] EWHC 2094 (Admin) (03 August 2018)

[19] Stephen Davies, Special Bulletin from the APPG on Legal Aid Criminal Legal Aid Review (03 Match 2020)

[20] Stephen Davies, Criminal Legal Aid Review (CLAR): The Accelerated Items (02 March 2020)

[21] Criminal Legal Aid Review (CLAR)

[22] Ministry of Justice, Amending the Advocates’ Graduated Fee Scheme: Government Response (10 December 2018) at 3

[23] Ministry of Justice, Post-Implementation Review of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) (CP 37, 07 February 2019)

Ministry of Justice, Post-Implementation Review of Part 2 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) - Civil litigation Funding and Costs (CP 38, 07 February 2019)

[24] Ministry of Justice, Final report: Review of Legal Aid for Inquests (CP 39, 07 February 2019)

[25] Ministry of Justice, Legal Support: The Way Ahead - An Action Plan to Deliver Better Support to People Experiencing Legal Problems (CP 40, 07 February 2019)

[26] Ministry of Justice, Criminal Legal Aid Review: Programme Overview (30 April 2019)

[27] Criminal Bar Association, Monday Message (07 June 2019)

[28] Criminal Bar Association, Monday Message (12 June 2019) 

[29] Criminal Bar Association, Monday Message (28 June 2019) 

[30] Attorney General’s Office, Attorney General’s Guidelines on Disclosure (26 February 2020)

[31] Attorney General’s Office, Consultation on revisions to the Attorney General’s Guidelines on Disclosure and the CPIA Code of Practice (26 February 2020)

[32] Ministry of Justice, Criminal Legal Aid Review: An Accelerated Package of Measures Amending The Criminal Legal Aid Fee Schemes (Consultation) (28 February 2020)

Ministry of Justice, Criminal Legal Aid Review: An Accelerated Package of Measures Amending The Criminal Legal Aid Fee Schemes (Annex B: Equality Statement) (28 February     2020)

Ministry of Justice, Criminal Legal Aid Review: An Accelerated Package of Measures Amending The Criminal Legal Aid Fee Schemes (Impact Assessment) (28 February 2020)

Ministry of Justice, Criminal Legal Aid Review: An Accelerated Package of Measures Amending The Criminal Legal Aid Fee Schemes (Impact Assessment Annex B: Unused Material   Findings from the CPS Case File Review, Solicitor Survey and Barrister Survey) (28 February 2020)

Ministry of Justice, Criminal Legal Aid Review: An Accelerated Package of Measures Amending The Criminal Legal Aid Fee Schemes (Impact Assessment − Annex C: Supporting Evidence from Practitioner Focus Group Discussions) (28 February 2020)

[33] Ministry of Justice, Government Response: Criminal Legal Aid Review - An Accelerated Package of Measures Amending the Criminal Legal Aid Fee Schemes (21 August 2020)

[34] Ministry of Justice, Equality Statement: An Accelerated Package of Measures Amending the Criminal Legal Aid Fee Schemes (21 August 2020)

[35] Ministry of Justice, Impact Assessment: Criminal Legal Aid Review - An Accelerated Package of Measures Amending the Criminal Legal Aid Fee Schemes (21 August 2020)

[36] Government Response: Criminal Legal Aid Review - An Accelerated Package of Measures Amending the Criminal Legal Aid Fee Schemes at 6

[37] Legal Aid Agency, Crime news: extension of 2017 crime contract to 31 March 2022 (24 August 2020)

[38] Government Response: Criminal Legal Aid Review - An Accelerated Package of Measures Amending the Criminal Legal Aid Fee Schemes at 11

[39] Justice Committee, Oral Evidence: Coronavirus (Covid-19): The Impact on Prison, Probation and Court Systems (HC 299, 04 May 2020) Q131

[40] HC 03 November 2020, vol 683, col 149

[41] Sir Bob Neil MP

[42] Karl Turner MP, APPG on Legal Aid, Oral Evidence Session: Criminal Legal Aid (November 2020)