Independent Review of Criminal Legal Aid - Report

1 Independent Review of Criminal Legal Aid Sir Christopher Bellamy 29 November 2021. Table of Contents Annexes ..v CHAPTER ONE: INTRODUCTION AND SUMMARY .. 1. Introduction .. 1. The Main 7. Summary of Approach and Recommendations .. 9. Central Recommendation .. 10. An Advisory Board .. 10. CHAPTER TWO: GATHERING THE EVIDENCE .. 12. CHAPTER THREE: WHY FUND Criminal Legal AID? .. 14. CHAPTER FOUR: BRIEF HISTORY OF Criminal Legal AID AND RELATED. DEVELOPMENTS .. 18. CHAPTER FIVE: OVERVIEW OF THE Criminal JUSTICE SYSTEM .. 32. The Police .. 32. The Charge (or Not) .. 32. The Prosecution .. 34. The Magistrates' Court .. 36. The Crown 38. Other Elements of the System .. 39. The Supply 40. CHAPTER SIX: THE SUSTAINABILITY OF Criminal Legal AID FIRMS .. 45. General Approach .. 45. The Case Made to the Review .. 47. Analysis of the Evidence .. 47. (1) The Decline in the Numbers of Providers .. 47. (2) The Impact of No Fee Increases for Many Years and Cuts.

2 49. (3) Difficulties in Training, Recruitment and Retention .. 52. (4) Profitability and Financial Stability .. 55. Conclusion on the Sustainability of Criminal Legal Aid Firms .. 59. CHAPTER SEVEN: Criminal Legal AID FIRMS: ACTION REQUIRED .. 61. The Immediate Options .. 61. The Overall Level of Funding Required .. 63. The Structure of the Schemes .. 65. Where Should Additional Funding Be Best Directed? .. 67. CHAPTER EIGHT: THE POLICE STATION 68. ii The Structure of the Police Station Scheme .. 68. Further Issues Affecting Police Station Work .. 71. CHAPTER NINE: EARLY ENGAGEMENT .. 80. Pre-Charge 80. Engagement Post-charge .. 81. CHAPTER TEN: THE MAGISTRATES' COURT .. 85. CHAPTER ELEVEN: THE YOUTH COURT .. 90. CHAPTER TWELVE: THE LGFS AND RELATED ISSUES .. 94. The Structure of the LGFS .. 94. Recommended Reform of the 97. Conclusions on the LGFS Recommendations .. 100. The Relationship of the LGFS with the AGFS .. 100. CHAPTER THIRTEEN: THE AGFS AND THE Criminal BAR.

3 102. Brief Description of the AGFS .. 102. The Case Made to the Review .. 103. The Main Evidence .. 105. Analysis .. 115. Preliminary Observations .. 116. The Reasons for Increasing Funding for the AGFS .. 118. Implementing Increased Funding for the AGFS .. 121. CHAPTER FOURTEEN: OTHER Criminal Legal AID EXPENDITURE .. 128. Appeals .. 128. Very High Cost Cases (VHCCs).. 132. Prison Law .. 135. Expert Witness Fees .. 138. CHAPTER FIFTEEN: WAYS FORWARD AND OUTSTANDING ISSUES .. 140. The Advisory Board .. 140. Structural Developments .. 141. 144. Quality .. 147. Transparency, Data and Competition .. 148. Listing .. 149. Remote Technology in the Courts .. 151. The LAA .. 152. iii CHAPTER SIXTEEN: SUMMARY OF RECOMMENDATIONS .. 155. iv Annexes Annex A: Terms of Reference and Expert Advisory Panel Members Annex B: Evidence Gathering Annex C: Criminal Legal Aid Trends Annex D: 2021 Justice Select Committee Report The Future of Legal Aid'. Annex E: Findings from Independent Review into Criminal Legal Aid Focus Groups for Legal Aid Practitioners Annex F: Criminal Justice System User Interviews Analysis Annex G: Student Survey Report Annex H: Criminal Legal Aid Firms Case Studies Report Annex I: Public Sector Salary Comparative Study Annex J: Financial Survey Summary Annex K: Data Compendium - Criminal Legal Aid Firms and Self-employed Criminal Barristers Annex L: Self-employed Criminal Barristers Annex M: The Fee Schemes and How They Work Annex N: Glossary v CHAPTER ONE: INTRODUCTION AND SUMMARY.

4 Introduction This Report arises from long standing concerns about the lack of funding for Criminal Legal aid in England and Wales. Criminal Legal aid in England and in Wales is supplied pursuant to the Lord Chancellor's statutory duties under the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO), using private sector providers, mainly solicitors and barristers, with the exception of a small Public Defender Service (PDS) of salaried lawyers. The system is administered on behalf of the Lord Chancellor by the Legal Aid Agency (LAA), which is also responsible for the PDS. The Criminal Legal aid system consists of five main parts: A) The Police Station: a person arrested or attending a voluntary interview with the police is entitled to free Legal advice and assistance, irrespective of means, provided through a duty solicitor scheme, although the client may request a solicitor of their choice. B) The Magistrates' Court: a person charged with an offence in the Magistrates' Court is entitled to Legal aid for representation and advice, subject to meeting a means test and an interests of justice test.

5 There is also a Court duty solicitor scheme where unrepresented defendants may obtain free advice and assistance. C) The Crown Court: a person charged with an offence in the Crown Court, typically more serious offences, is normally entitled to Legal aid for representation and advice, but may be required to make a financial contribution if their income is above a certain threshold. D) Prison Law: a prisoner may be entitled to Legal aid in respect of certain sentencing and disciplinary matters and proceedings before the Parole Board. E) Appeals: Legal aid is available in certain appeals from the Magistrates'. Court to the Crown Court, from the Crown Court to the Court of Appeal, and for applications to the Criminal Cases Review In December 2018, following the somewhat turbulent history described in more detail in Chapter 4, Lord Chancellor, the Right Hon David Gauke MP, announced a Criminal Legal Aid Review (CLAR), with the following main objectives: a) To reform the Criminal Legal Aid fee schemes so that they: 1.

6 The Review has concentrated on the main cases where Legal aid is granted. Unless otherwise stated, the Review 's recommendations are intended to apply, where relevant, to cases not dealt with specifically ( appeals to the Supreme Court, contempt proceedings, matters prescribed as Criminal under section 14(h) of LASPO, and various other matters). For the abbreviations used in this Report please see the Glossary at Annex N. 1. 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.

7 B) 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. operates to ensure the right level of Legal Aid provision and to encourage a diverse workforce.. The first stage of CLAR, which was delayed by the pandemic, consisted in gathering data now published in the Data Compendium2 and addressing certain accelerated areas , reforms which took effect in August In December 2020 I was appointed by the Lord Chancellor Rt Hon Robert Buckland QC MP. to carry out the second stage of CLAR, namely an Independent Review of Criminal Legal Aid (CLAIR). The terms of reference set out at Annex A require me to consider the Criminal Legal aid system in its entirety, the service being provided, and how it is procured and paid for, with particular reference to five themes: resilience, transparency, competition, efficiency and diversity.

8 Each of these topics is to be considered as broadly as possible, the Review being expected to be far more ambitious in scope than previous reviews, the last of which was carried out by Lord Carter in 2006. The System of Criminal Legal Aid A person without means seeking Legal advice and representation in defence of a Criminal charge must do so through a solicitor contracted to the LAA under the Standard Crime Contract (SCC), which sets out the requirements to be met by solicitors supplying those services. The solicitor must then apply on the client's behalf to the LAA for a Representation Order, giving details of the 2. ( ). 3. See Chapter 4 below. 2. alleged offence and the client's means. If the criteria for Legal aid are met, the LAA will grant the Order. Solicitors provide advice and assistance in the police station, either acting for their own clients or through the duty solicitor scheme, advice and representation in the Magistrates' Court, including the magistrates' court duty solicitor scheme, and the preparation of cases in the Crown Court where a barrister is typically instructed.

9 Solicitor advocates who have higher rights of audience also conduct cases in the Crown Court, and account for a significant proportion of guilty pleas, for Members of the Chartered Institute of Legal Executives (CILEX) work mainly in solicitors' firms. Although as yet no 'CILEX only' firm has a contract with the LAA, CILEX members with the necessary qualifications can be in partnership with solicitors, undertake police station work, and appear in the Magistrates'. Court. In this Report , in using for shorthand the terms solicitor' and solicitors'. firms' I by no means overlook the vital work done by CILEX members. It is the solicitor who is responsible for instructing the barrister to provide advocacy services on behalf of the client. Barristers appear mainly in the Crown Court although junior barristers are also instructed in the Magistrates'. Court, particularly in London. Barristers do not have a direct contractual relationship with the The remuneration of solicitors and barristers for supplying Criminal Legal aid services is mostly set out in The Criminal Legal Aid (Remuneration).

10 Regulations 2013, as amended, made under LASPO ( the Regulations').6 For historical reasons described in Chapter 4, there is a patchwork of different approaches. Police station work is paid a fixed fee; Magistrates' Court work is based on a mixture of certain standard fees and hourly rates; and most Crown Court work is based on graduated fees, whereby the fee is determined by using various proxies , such as the offence charged, whether it is a guilty plea, cracked trial7 or trial; the length of the hearing; and the Pages of Prosecution Evidence (PPE). There are two different payment schemes in the Crown Court, one for advocates barristers and solicitor advocates known as the Advocates' Graduated Fee Scheme (AGFS), and the other for litigators the solicitors during the preparatory work known as the Litigators' Graduated Fee Scheme (LGFS). Certain Very High Cost Cases (VHCCs) in the Crown Court are dealt with separately. 4. See chapter 13 below 5.