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Is publicly funded criminal defence sustainable? Legal aid cuts, morale, retention and recruitment in the English criminal law professions

  • James Thornton (a1)

Abstract

This paper examines how continued reductions in fee levels for criminal legal aid work affect recruitment and retention in the English publicly funded criminal defence profession. Data from 29 qualitative interviews with English defence solicitors and barristers are analysed to explore the impact of these reductions on recruitment of new lawyers and retention of current lawyers. On the basis of these findings, also building on research conducted by lawyer professional associations, I argue that a combination of cuts to legal aid, the resulting working patterns and low morale has led to a position where the criminal defence profession, as we know it, is unsustainable.

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My sincere thanks to Mark Telford, David Gurnham, Jonathan Doak and the anonymous peer reviewers for their very helpful comments on earlier drafts. I am also very grateful to my interviewees for taking the time to share their stories with me, and the Law Society and Criminal Bar Association for providing statistics and reports.

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1 There were 16,256 law graduates in 2018 compared with a (fairly stable) number of 5811 registered trainee solicitors and 473 pupil barristers. See Law Society Trends in the Solicitors’ Profession Annual Statistics Report 2018 (August 2019) and Bar Standards Board Pupillage Statistics (2019), available at https://www.barstandardsboard.org.uk/news-publications/research-and-statistics.html.

2 In 2017, there were 16,435 practising barristers. Although it is not compulsory for barristers to disclose practice areas, the Bar Standards Board estimated for the Ministry of Justice that a minority (around 5000) of barristers specialise in criminal law. Similarly, of the circa 10,000 law firms in England and Wales, 2,262 held criminal legal aid contracts in 2015: Ministry of Justice Litigators Graduated Fees Scheme and Court Appointees Equality Statement (2017).

3 Law Society Criminal Duty Solicitors: A Looming Crisis (2018), available at https://www.lawsociety.org.uk/policy-campaigns/campaigns/criminal-lawyers/. A duty solicitor is a solicitor who agrees to be available ‘on-call’ to assist at the police station and/or the magistrates’ court for those suspects/defendants who do not currently instruct a specific solicitor. For many, it is the first port of call.

4 Bar Council Barristers’ Working Lives 2017 (May 2018), available at https://www.barcouncil.org.uk/media/661503/working_lives_-_final.pdf.

5 And, in the background, there is perhaps an even broader conflict in the profession generally between commercial capitalist and professional values: an issue as fundamental as how we should live. See Bradney, AHow to live: aristocratic values, the liberal university law school and the modern lawyer’ (2011) 2 Web JCLI. Although beyond the scope of this work, it is worth pointing out that the issues discussed here may operate in addition to these broader structural issues in the legal professions generally, which would aggravate any impact.

6 Sommerlad, H“I've lost the plot”: an everyday story of the political legal aid lawyer’ (2002) 28 JLS 335 at 360.

7 Ibid, at 341.

8 Ibid, at 341, 360. To what extent these firms exist (in 2002, or now) is debateable. Sommerlad certainly believed they did (ibid, at 341–342), and other research supports this: see eg McConville, M et al. Standing Accused (Oxford: Oxford University Press, 1994) and (more recently) Newman, DLegal Aid Lawyers and the Quest for Justice (Oxford: Hart Publishing, 2013) and Gibbs, P and Ratcliffe, FCriminal Defence in an Age of Austerity: Zealous Advocate or Cog in a Machine? (Transform Justice, 2019). As we shall see, interviewee comments in the current study referred to ethically dubious (not to mention inefficient) actions by some individuals, but stopped short of alleging widespread malpractice at firm level.

9 Lipsky, MStreet Level Bureaucracy: Dilemmas of the Individual in Public Services (New York: Russell Sage, 1980).

10 Moorhead, RLegal aid and the decline of private practice: blue murder or toxic job?’ (2004) 11(3) International Journal of the Legal Profession 159.

11 Ibid, at 175.

12 Ibid, at 180.

13 Ibid, at 182.

14 Kemp, VTransforming Legal Aid: Access to Criminal Defence Services (Legal Services Research Centre, 2010) p 18.

15 Ibid, p 109.

16 Ibid, p 107.

17 Ibid, p 107.

18 Newman, DAre lawyers alienated workers?’ (2016) 22 European Journal of Current Legal Issues.

19 Newman, DAre lawyers neurotic?’ (2018) 25(1) International Journal of the Legal Profession 3.

20 G Hunter et al Judicial Perceptions of the Quality of Criminal Advocacy (2018) section 4.1. One judge provided a personal example of leaving the criminal barrister profession: by their becoming a judge.

21 BVA BDRC Civil and Criminal Solicitors’ Views on LASPO (September 2018) p 48.

22 J Thornton The Impact of Criminal Legal Aid Finance Reduction on the Work of Defence Lawyers (PhD thesis, University of Southampton, 2018).

23 Interviews were conducted in-person or via telephone. Open-ended questions were asked about their work, in the context of recent and proposed funding cuts and industrial action. Some transcription changes were made for easier reading: for example, repeated words, filler discussion and interviewer replies of ‘yes’, and so on are omitted. Italicised text within square brackets is a paraphrase of something an interviewee said (to save space). Non-italicised text in square brackets is to clarify how or what was said. Unique expressions were modified to preserve anonymity.

24 Above n 2.

25 Criminal Practice Directions 2015, Consolidated with Amendment No 8 [2019] EWCA Crim 495 at [24C].

The tone and language here is illuminating: [24C.7] makes clear that the starting point is that the trial proceeds, that courts should ‘resist’ granting adjournments and consider them a ‘last rather than first resort’. It concludes: ‘any suggestion of a culture readily permitting an opportunity to correct failures of preparation should be firmly dispelled’. [24C.9] goes on to require judges to ‘rigorously scrutinise’ adjournment applications and have regard to the principle that ‘delay brings the criminal justice system into disrepute’. [24C.10] accepts that the consequence of refusing an adjournment may be ‘that the defendant is unable to explore an issue’, but nonetheless considers this ‘may be a just consequence of inadequate preparation. Even in the absence of fault on the part of either party it may not be in the interests of justice to adjourn, notwithstanding that an imperfect trial may be the result.’ For the Crown Court: Criminal Practice Directions XIII: Listing [F8] – [F10] is similarly clear cut: ‘Once a trial date or window is fixed, it should not be vacated or moved without good reason. Under the Criminal Procedure Rules, parties are expected to be ready by the trial date… requests to adjourn or vacate fixtures or trial windows must be referred to the Resident Judge for his or her personal attention’.

26 Although of course one reason why money is paid late may be because defence firms’ and government departments’ margins are tight.

27 See also Thornton, JThe way in which fee reductions influence legal aid defence lawyer work: insights from a qualitative study’ (2019) 46(4) JLS 559, discussing the impact of cuts in terms of perverse financial incentives for lawyers on plea advice, case type and reviewing evidence.

28 See eg Law Society Gazette ‘Court security guard who told female lawyer “spread your legs” is suspended’ (2018), available at https://www.lawgazette.co.uk/news/court-security-guard-who-told-female-lawyer-spread-your-legs-is-suspended/5068452.article.

29 Kemp, above n 14; Sommerlad, above n 6, at 356; Moorhead, above n 10, at 175: one respondent called their work ‘a totally thankless task’.

30 Sommerlad, above n 6, at 356.

31 It is worth pointing out that it does accord somewhat with Newman's study (above n 8) on this issue of unethical practice, in another part of the country, albeit that that too is a very small sample of practitioners. The difficulty with finding large scale quantitative data on these issues is the depth of analysis required to unearth unethical conduct – which qualitative methods can provide, but by nature will likely have smaller and more focused samples of. We then face the further difficulty of unearthing a miscarriage of justice in the first place and then, thirdly, establishing a causative link between it and lawyers’ behaviour. It is clear, however, that lawyers respond to financial incentives generally: Fenn, P et al. ‘Standard fees for legal aid, an empirical analysis of incentives and contracts’ (2007) 59(4) Oxford Economic Papers 662 at 678.

32 See eg Bingham, TThe Rule of Law (London: Penguin, 2011) ch 9.

33 See United Nations Universal Declaration of Human Rights 1948, General Assembly Resolution 217A, Art 10 and (more locally) European Convention on Human Rights 1950, Art 6(3)(c).

34 Whilst of course it is debateable (particularly for comparatively trivial crimes) to what extent ‘effective criminal defence’ always requires access to defence lawyers, very few would argue that all cases could be fairly conducted without them.

35 See eg Smith, TThe “quiet revolution” in criminal defence: how the zealous advocate slipped into the shadow’ (2013) 20(1) Int J of the Legal Profession 111.

36 Shute, S et al. A Fair Hearing? Ethnic Minorities in the Criminal Courts (Abingdon: Routledge, 2011) p 131.

37 Bar Standards Board Practising Barrister Statistics (May 2019), available at https://www.barstandardsboard.org.uk/news-publications/research-and-statistics.html.

38 Moorhead, RLawyer specialization – managing the professional paradox’ (2010) 32(2) Law & Policy 226 at 249.

39 See in particular comments in section 2(b) above.

40 Kemp, above n 14, p 110.

41 Ibid, p 97.

42 Shute et al, above n 36, p 131.

43 Alongside the issues raised by Moorhead's studies, above n 38, with regard to specialists versus non-specialists.

44 T Smith ‘Justice for sale: an empirical examination of the attitudes of criminal defence lawyers towards legal aid reform’ (2014) Plymouth Law and Criminal Justice Review 1 at 28.

45 And recall also Barrister O's comments in the previous section.

46 Kemp, above n 14, p 107.

47 Morison, J and Leith, PThe Barristers’ World and the Nature of Law (London: Open University Press, 1992) p 25. Although not mentioned by interviewees in the current study, similar comments as for race and social background could be made about structural issues in relation to women at the Criminal Bar. See eg Western Circuit Women's Forum Back to the Bar (2018) which found that two-thirds of those who left the Bar on the Western Circuit over a six-year period were women, and that the vast majority of women left mid-career (conversely, almost all the men who left over the same period became judges or retired). The recruitment and retention issues discussed in this paper operate in addition to these structural barriers.

48 Moorhead, above n 10, at 159.

49 Shute et al, above n 36, p 131.

50 Tribunals, Courts and Enforcement Act 2007, s 71.

51 See Ministry of Justice Judicial Diversity Statistics 2019. The lay criminal judiciary is no panacea for this either, given their own problems with diversity: Gibbs, P and Kirby, AJudged by Peers? The Diversity of Lay Magistrates in England and Wales (Howard League for Penal Reform, 2014) pp 1011, available at https://howardleague.org/wp-content/uploads/2016/04/HLWP_6_2014.pdf.

52 Law Society Private Practice Solicitors’ Salaries 2016 Practice Certificate Holder Survey (September 2017), Table 7.

53 Law Society, above n 3. There is, however, ample evidence to suggest severe problems in other publicly funded areas, such as asylum and welfare law, following the huge areas that were simply removed from the scope of legal aid by the Legal Aid, Sentencing and Punishment of Offenders Act 2012. See eg Flynn, A and Hodgson, JAccess to Justice and Legal Aid: Comparative Perspectives on Unmet Legal Need (Oxford: Hart Publishing, 2017). The problem there, however, is a more basic economic issue. Due to cuts in legal aid scope, firms close because their market is simply no longer there: there are no longer ‘customers’ who can pay. This is different to crime, where legal aid is still provided, but at ever dwindling rates for the lawyers involved.

54 In addition, Law Society, n 52, Table 9, does illustrate a financial sacrifice for doing legal aid generally (the more time spent on legal aid, the lower the salary) and data from their (currently unpublished) 2018 Practice Certificate holder survey suggests gross median earnings in the region of £39,000 (although, again, the low sample size prohibits concluding that average salary has decreased since 2016).

55 Krieger, L and Sheldon, KWhat makes lawyers happy: a data-driven prescription to redefine professional success’ (2015) 83 George Washington Law Review 554.

56 Ibid, the Table at 620 puts money at ‘Tier 4’ and ‘autonomy, competence and internal motivation/interest’ at ‘Tier 1’. There are five tiers in total from most to least important for happiness.

57 Ibid, at 623.

58 Those within the criminal justice system are disproportionately likely to suffer from mental health issues, relative to the general population. See Durkan, GMental Health and Criminal Justice (London: Centre for Mental Health, 2016) pp 89.

59 For discussion on how these operate on lawyers, see Sommerlad, HCriminal legal aid reforms and the restructuring of legal professionalism’ in Young, R and Wall, D (eds) Access to Criminal Justice: Legal Aid Lawyers and the Defence of Liberty (London: Blackstone, 1996) p 307 and, more recently, Welsh, LThe effects of changes to legal aid on lawyers’ professional identity and behaviour in summary criminal cases: a case study’ (2017) 44(4) JLS 559 at 575–576 and Thornton (above n 27). Welsh found that fixed fees had made lawyers feel ‘torn’ between business needs and client duty. That said, some areas of civil litigation have fixed-fee schemes of their own. See also the move towards Fixed Recoverable Costs in civil litigation since 2010: LJ, JacksonReview of Civil Litigation Costs: Supplemental Report Fixed Recoverable Costs (Judiciary of England and Wales, 2017).

60 This was not unexpected given the similar responses in Newman, above n 8.

61 Law Society Gazette ‘Freshfields hikes NQ pay to £100k as US competition intensifies’ (7 May 2019), available at https://www.lawgazette.co.uk/freshfields-hikes-nq-pay-to-100k-as-us-competition-intensifies/5070202.article.

62 Lipsky, above, n 9, p 154. See generally, xii ‘Teachers, social workers, public interest lawyers, and police officers in part seek out these occupations because of their potential as socially useful roles. Yet the very nature of this work prevents them from coming even close to the ideal conception of their jobs. Large classes or huge caseloads and inadequate resources combine with the uncertainty of method and the unpredictability of clients to defeat their aspirations as service workers’.

63 Health and Safety Executive Work Related Stress, Depression or Anxiety Statistics in Great Britain 2019 p 6 available at http://www.hse.gov.uk/statistics/causdis/stress.pdf.

64 See eg Department for Education Initial Teacher Training Census for Academic Year 2018–2019 (2018) showing missed recruitment targets in many subjects for new entrants and Department for Education Teacher Recruitment and Retention Strategy (2019), Sector Bodies Foreword: ‘Over a number of years, it has become increasingly difficult to recruit and retain staff of the calibre required’.

65 Savill-Smith, CTeacher Wellbeing Index (Education Support Partnership, 2018).

66 Newman, above n 8.

67 Above n 18 and n 19.

68 Dehaghani, R and Newman, D“We're vulnerable too”: an (alternative) analysis of vulnerability within English criminal legal aid and police custody’ (2017) 7(6) Oñati Socio-legal Series 1199.

69 Ibid, at 1204.

70 Newman, above n 8, pp 158–159.

My sincere thanks to Mark Telford, David Gurnham, Jonathan Doak and the anonymous peer reviewers for their very helpful comments on earlier drafts. I am also very grateful to my interviewees for taking the time to share their stories with me, and the Law Society and Criminal Bar Association for providing statistics and reports.

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Is publicly funded criminal defence sustainable? Legal aid cuts, morale, retention and recruitment in the English criminal law professions

  • James Thornton (a1)

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