Papering over the ever-increasing cracks in Criminal Legal Aid

Our latest guest blog was contributed by Nick Titchener, Director & Solicitor-Advocate at the criminal defence solicitors firm Lawtons Law.’

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For many areas of legal practice, the concept of pro bono work is something altruistic, when the legal profession is giving something back, the provision of expertise, time and skills for nothing.

However, in the world of criminal defence work, it is really quite different. The importance of pro bono work in making everything work and keeping ticking over and providing the service that many vulnerable people require cannot be overstated. However, in the area of criminal defence work it is done without flourish or a fanfare and rarely is it even noticed or acknowledged.

The majority of criminal defence work is governed under the auspices of Legal Aid. Criminal Legal Aid is limited in its remuneration rates, scope and availability. To understand the significance of pro bono work in criminal legal aid work it is important to firstly understand how firms are remunerated and at what rates.

This is illustrated by what happens when a client is initially a suspect and under investigation by the police, and what criminal legal aid covers. Unlike commercial firms, where clients are often charged between £200 to £1000 per hour, for criminal legal aid work, the hourly rate is between £24 and £56.89 depending on what work is involved. However, for each case at a police station, under the Legal Aid Advice and Assistance scheme, the firm of solicitors is paid a fixed fee. The fee varies significantly depending on the police station, ranging from £126 for a case in Blackpool up to a maximum of £257.33 for a case at Stansted, with the average case fee being £181.50. The fixed fee payable under criminal legal aid covers all work and time incurred in both travelling to and from the police station and for all of the time that the lawyer is to be engaged at the police station. It includes no work outside of travelling to and from and the actual attendance at the police station. Unless the relevant fixed fee is exceeded by more than 3x, no matter how long the lawyer is at the police station or engaged on the case the fee will remain fixed. So, by way of example, if the legal aid lawyer is at Stansted Police Station and the total  travel, attendance and waiting time amounts to 18 hours, the total fee will not be any more than the fee of £257.33, thus meaning the notional hourly rate has fallen to only £14.

All of the work that a criminal defence firm does when a client is under investigation by the police is wrapped up in the “fixed fee” framework, with very little chance that anything else will be remunerated. Letters, phone calls and any work outside of the police station attendance are not remunerated.

If the police contact someone to attend the Police Station for a formal police interview or someone is arrested, they would be well served in ensuring that they have some legal advice and Legal Aid will allow for that free advice and assistance when the person is actually at the police station to be questioned in accordance with the aforementioned fixed fee regime. However, if you have questions about what will happen when you arrive there, perhaps  worried about what you will be questioned about, concerned about the procedure, want to meet with your lawyer before you go to the police station – all of these things are reasonable, as they are understandable questions and concern. However, none of these scenarios are covered by legal aid. As a criminal defence firm, we recognise that these things are important, so we set time aside to ensure that clients are familiar with what will happen and to address their concerns – but we are not remunerated for this, even within the fixed fee regime, in every one of these cases, of which there will be 100’s every year, we act on a pro bono basis.

And the same applies after someone has been released from the police station interview. After you have  walked out the door, inevitably you may have questions the following day, perhaps your property has been seized and you want it back from the police, you want updates and to know what may be happening on your case – however, none of these things are remunerated by legal aid. The letters and calls that you would like your lawyer to make on your behalf, the questions you want answering, none of these are covered and they are all done pro bono. Criminal defence firms recognise that these things are important, even though the Government does not provide funding for them to be done.

But the situation with regards to criminal defence firms undertaking pro bono work is not restricted to just when they are at covering cases under the legal aid police station advice and assistance scheme. Criminal defence firms are routinely required to undertake work that is either not remunerated or poorly so. The recent Judicial Review launched by the Legal Aid Agency in response to the Government’s latest cuts to Criminal Legal Aid exemplifies the ever-increasing gaps in funding and the amount that firms are expected to undertake on a daily basis without recourse to funding or remuneration:

Joe Egan, Society president of the Law Society, said: ‘The government is cutting the payments made to defence lawyers for considering and responding to evidence served by the prosecution. Their justification for this cut is that electronic and social media evidence is not always relevant to the complexity of the case. However, it was exactly this social media evidence that defence lawyers had to examine in order to secure the exoneration of Liam Allen.’ [Allen was charged with 12 counts of rape and sexual assault but his trial collapsed after police failed to disclose vital evidence to the defence.]

Unless a criminal defence firm is prepared to undertake pro bono work from the outset for their clients, guide them through the process that they have been caught up in, clients would ill-advised and badly serviced, their needs and questions would remain unanswered. Criminal defence firms operate on the tacit basis that they are remunerated badly but provide an invaluable service and level of expertise that whilst unrecognised is vital to ensure that vulnerable individuals are protected and advised. Without criminal defence firms papering over the cracks in the funding regime, and operating a silent system of pro bono advice and representation clients would inevitably suffer as a consequence and Justice would be ill-served.