MoJ criminal legal aid proposals: 'Fiddling while Rome burns'

Defence practitioners are on the verge of ‘extinction’, the Law Society president warned today.

He was responding to the Ministry of Justice’s (MoJ) publication of a package of interim proposals following the criminal legal aid review, which was announced in December 2018.

The Law Society said the so-called accelerated items proposed by government are not adequate to match the scale of the problem.

It also warned that the criminal legal aid system is doomed to spiral into an even greater crisis unless the MoJ’s plans are urgently rethought. Justice could fall apart, it said.

The Society’s urgent warnings came despite a proposed increase in criminal legal aid funding amounting to between £32m and £50m.

That would accumulatively cover new payments for the review of unused material; additional payments for advocates with high volumes of pages of prosecution evidence; increased payments for advocates on cracked trials; and additional payments for litigators for work done on sending cases to crown courts.

Lord Chancellor Robert Buckland said: “These proposals are an important first step towards reviewing sustainability in the long term, ensuring fair fees, and delivering value for the taxpayer.”

However, the Society said it had hoped the interim proposals “would provide some urgent relief from the deepening crisis in the criminal legal aid profession”.

The Society’s president Simon Davis described the government offer as “woefully inadequate”, saying: “We have warned time and again that the very existence of criminal defence practitioners is under threat.

“Unless the package is adjusted to address the depth and urgency of this crisis, then extinction may be firmly on the horizon.”

He said there are increasingly large areas of the country where no defence solicitors are available.

“The very notion of British justice is in jeopardy”, he warned, “with victims left in limbo and the accused potentially deprived of a fair trial.”

He said the shortage of practitioners will lead to injustice; also that “it is economically unsound” because defence lawyers “help ensure the justice system runs efficiently” – saving the taxpayer money.

Davis pointed out that the Crown Prosecution Service (CPS) recently received an interim increase of 10 per cent for prosecutors, yet the defence has received no increase in 25 years.

“In real terms”, Davis commented, “these measures do not even restore the position for litigators at the time the review was announced in 2018.”

Another consequence is fewer new solicitors choosing to enter criminal law and more defence lawyers taking CPS jobs.

“This further diminishes the pool of those capable and able to provide for the defence”, said Davis, “a crucial ingredient to ensure that our adversarial system of justice acquits the innocent and convicts the guilty”.

The Society called for the MoJ to “pull us back from the brink by improving this package” to reflect the scale and speed of action required.

Davis said: “Firms are withdrawing and collapsing as we speak - in greater numbers than ever before.

“This may only be an interim plan, pending the full review into the sustainability of the system, but investment is needed now - not in a year’s time.”

The Chartered Institute of Legal Executives (CILEx) also condemned the interim proposals, saying they risk the collapse of the justice system.

It said the proposals “do not go anywhere close to addressing the shortfall which has seen a huge decline in the number of criminal lawyers available to defend those accused of crime.

“They have been driven out of business by unsustainable fees.”

It pointed out that a right to a defence is a basic right for citizens in this country.

CILEx Vice-President Craig Tickner, a specialist criminal defence advocate, warned that “years of stagnant fees are taking their toll”.

He added: “The government’s latest proposals for criminal legal aid are insufficient, tokenistic and will not halt the potential collapse of the system.

“There is a real risk that the system grinds to a halt, leaving victims without justice and those accused of crimes without access to a fair trial.

“These changes are simply fiddling while Rome burns.”