Access to Justice – the current state of criminal legal aid
What is wrong with the criminal justice system?
In recent years complaints about the state of the criminal justice system in England and Wales have become increasingly loud. From the Secret Barrister to the Justice Select Committee, there seems to be a general consensus that due to many years of underinvestment our criminal justice system is crumbling.
Our justice system – admired all around the world - is underpinned by the notion that people are innocent until proven guilty, yet people’s lives can be ruined before their case even reaches trial.
Imagine a person arrested today for a crime they didn’t commit. Their journey through the justice system could be plagued with shortages of lawyers and experts – due to low legal aid rates, - delays due to cases being double booked, long journeys to a distant court due to the closure of their local court, and being required to pay legal aid contributions they can’t afford because the means test is too stringent.
Innocent people may be held on remand far longer than necessary because of inefficiencies in the system – and be crippled by large debts as a result of their arrest, even if found innocent. This also impacts on victims and witnesses of crime who suffer avoidable inconvenience, cost and stress because of all these problems.
Worse still, problems with the disclosure of relevant documentation mean that innocent defendants risk being wrongly prosecuted, or even convicted, because evidence proving their innocence has not been identified and properly considered by the police and prosecutors.
More resource is sorely needed across the system to address these issues, not least in relation to criminal legal aid fees. Criminal legal aid lawyers ensure that anyone accused of wrongdoing has a fair trial. A stable pipeline of defence lawyers is essential to ensure that justice is served both now and in the future. Yet rates for criminal legal aid work are now so low, young lawyers no longer see a viable career in this specialism.
Last year the Law Society published an interactive 'Heat Map' illustrating the impending crisis among duty solicitors. The map shows that the mean average age of a criminal duty solicitor across the whole of England and Wales is now 47, and some counties have no lawyers under 35 doing this work.
Law Society campaign
Among the campaign tools available are an online petition; a video illustrating the damaging impact on clients of the overly stringent means test; a report – ‘Justice on Trial’ - on the crisis that makes 11 key policy recommendations to government, and a letter-writing campaign encouraging practitioners to write to the new Lord Chancellor urging him to prioritise access to justice.
Ministry of Justice Review
Largely as a result of persistent lobbying by the Law Society and other practitioner groups, the Ministry of Justice (MoJ) embarked in March 2019 on a root and branch review of criminal legal aid (‘the Review’). The review covers all aspects of the various criminal legal aid schemes, from the police station to the Crown Court, and it is hoped will at least go some way to addressing the current crisis in Criminal Legal Aid.
The Society, the Bar Council, CBA and the other main crime practitioner representative groups are engaged with the review and we have representatives on each of the groups feeding into the Review.
The review is expected to report at the end of 2020. In the meantime the Law Society and other practitioner representative groups have been successful in persuading the MoJ to invest in specific reforms earlier than this, as a recognition of the crisis in the criminal justice system, and to help build confidence in the review process. Among other things we hope that this will result in some form of payment for the consideration of unused material and early disclosure. The MoJ anticipates proposals from this early work to be published around the end of this year.
The Law Society delivered a number of roadshows around the country earlier this year – including Birmingham – in order to provide updates to our members on the crime Review and other developments in criminal legal aid. You can listen to a podcast here that summarises the topics covered in the roadshows.
Practitioners can get involved in the Review in a number of ways;
· You can host an MoJ employee in your firm for 1-3 days, in order to demonstrate first-hand some of the problems facing you in your day-to-day work;
· You can volunteer to take part in a Focus Group. These are in the process of being organised and will take place in several different locations around the country.
· You can also contact the Law Society directly with your ideas and suggestions for improvements to criminal legal aid.
Alice Mutasa – Policy Adviser, Criminal Legal Aid, the Law Society
Vicki Butler – Campaigns Manager, the Law Society