Review calls for immediate funding to save criminal defence sector

Sir Christopher Bellamy QC’s long-awaited criminal legal aid review called for an immediate injection of £135m in new funding to stop criminal defence services from collapse.

The independent review, which was commissioned by the Ministry of Justice (MoJ) and brought together experts from across the sector, including CILEX chair Professor Chris Bones, found the market did not need “radical reform” but highlighted “new possible ways of working”, such as through not-for-profit community interest companies (CICs) and firms specialising in particular kinds of work, supported by block grants from the government.

Sir Christopher concluded that “the remuneration of criminal lawyers should be such as to attract lawyers of the talent and calibre that the system requires” and that the principle of equality of arms was “central” to the present system of criminal justice.

Given a real-terms expenditure decline of 43% since 2004, with some fees for criminal law practitioners remaining unchanged for 25 years, “it is difficult to see how this situation can be sustained,” the report said.

Criminal legal aid firms “can neither attract sufficient new blood, because the fee levels restrict the salaries that can be offered, nor retain experienced practitioners because of the higher salaries offered by the CPS”.

Profits too have declined, to a level well below those in other areas of legal practice “and are at present unlikely to incentivise new investment in the sector or compensate the business owners for the risks to which they are exposed”.

With demand for defence services set to rise, with the government recruiting more police and trying to reduce the court backlog, Sir Christopher said: “The criminal legal aid system is already weakened. Absent a substantial increase in funding, there is a high risk that the system will simply be unable to cope with the challenges ahead.”

He recommended an extra £100m for solicitors and £35m for barristers, a 15% increase, as “the minimum necessary as the first step in nursing the system of criminal legal aid back to health after years of neglect”.

He stressed this needed to happen “as soon as practicable, to enable the defence side, and thus the whole CJS [criminal justice system] to function effectively, to respond to forecast increased demand, and to reduce the back-log.”

Responding to the report, CILEX CEO Linda Ford praised the “cogent analysis of the challenges faced within the criminal legal aid environment” and the “grounded response designed to address the current challenges that are threatening the sustainability of the criminal justice system”.

She welcomed recognition of “the diversity of CILEX Lawyers” and the valuable role they play in the sector as well as “calls for their participation in more police station work”. This included a specific recommendation to resolve the anomaly that actively prevents qualified CILEX Lawyers from being recognised and able to participate in the Criminal Legal Aid Solicitors Scheme. This was seen as an “an important step” by CILEX.

CILEX urged the government to respond positively to the report, as “without these proposals being implemented quickly, there is a serious risk that the effectiveness of the criminal justice system may be harmed through a loss of access to justice by some of the most vulnerable in our society”.

Lord Chancellor Dominic Raab said the MoJ’s response to the review will be published “no later than the end of March 2022 alongside a consultation on all policy proposals”, indicating that action is not imminent.