Introduction

Legal aid, particularly in criminal justice, is a divisive subject. For its most devoted proponents, state funding of legal representation and advice for those accused of crime is a vital public good which helps to uphold values of fairness, justice and equality. For its most virulent critics, criminal legal aid is a wasteful, bloated relic from a bygone era of state intervention, serving primarily to help criminals escape justice. These are perhaps caricatures; but most opinions on criminal legal aid lie nearer to one or other extreme. This chapter examines how, like many areas of criminal justice, criminal legal aid has been subjected to (relatively) modern notions of marketisation, managerialism and competition. We aim to provide some critique of this by both exploring its development and briefly examining two ‘case studies’, which arguably demonstrate the impact of neo-liberal ideology on criminal legal aid.

While criminal legal aid should not be immune to criticism, there has been consensus for decades that the right to legal representation is fundamental and that legal aid is vital to securing this. In England and Wales (E&W), all persons detained in police custody have a right of access to a legally aided lawyer. This is, in theory, universally available and not based on a person's financial circumstances. In contrast, a person may be entitled to a legally aided lawyer if they are charged and brought to court as a defendant. If one is available, a state-funded duty lawyer – that is, a lawyer who works ‘on call’ to provide representation to any accused person without it – may be able to assist a defendant. However, if the duty lawyer is not available, defendants will need to rely on their ‘own’ lawyer. This is subject to a test of both merits and means; if the defendant does not fall below the qualifying threshold for legal aid, they must pay for their own lawyer. If they cannot afford one, the defendant may self-represent before a court or not attend at all.

The importance of legal representation in criminal proceedings – and by extension, legal aid – can be couched in terms of both the procedural benefits (such as the check on police power and adversarial scrutiny of prosecutions) as well as the language of welfarism.